Volshenk v Road Accident Fund

• Jurisdiction: South Africa
• Judge: Mavundla J
• Judgment Date: 23 April 2020
• Docket Number: 53659/2014
• Hearing Date: 06 February 2020
• Court: Gauteng High Court, Pretoria

Mavundla J:

[1]

This is a third party claim, brought by the plaintiff Ms Liezl-Meri Volschenk, a major female general worker born on15 January 1974, claiming damages from the defendant, a statutory insurer in terms of Act 56 of 1996, arising from the bodily injures she sustained in a motor vehicle collision which occurred on 21 July 2014. The liability of the defendant has since been determined at 90% to 10% in favour of the plaintiff's proven damages, per court order dated 28 February 2018.

[2]

The only issue this court is called upon to determine is the future loss of income and general damages. The parties have further agreed that there would be no evidence led but the parties rely on the pleadings bundle 1, quantum documents in bundle 2, plaintiff's medicolegal reports in bundle 3 and Plaintiff's medico legal reports in bundle 3A. It needs mentioning that the defendant did not file any expert report.

[3]

The plaintiff suffered the following injuries in the accident:

3.1

compound fracture of the right distal tibia and double fracture of fibula with involvement of tibia plafond on the lateral side;

3.2

major depressive disorder and travel related anxiety symptoms;

3.3

multiple scarring;

3.4

severe recurrent sepsis in lower right leg.

[4]

Plaintiff claimed for.

4.1	loss of earnings estimated as per the actuarial calculation of I Kramer dated 5 February 2020 and marked annexure A' in the amount of	R497 01:7. 00
4.2	estimated future loss of earning capacity and interference with earning capacity	R1 306 511.00

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4,3	general damages for pain and suffering, disfigurement inconvenience and loss of amenities of life	R 1200 000. 00
	Total	R3 004 528.00

with ancillary relief.

[5]

According to:

5.1

Dr Kevin Scheepers a general practitioner has assessed on the narrative test the injuries of the plaintiff to be serious due to (i) serious long-terms injury or loss of a body function; (ii) permanent serious disfigurement.

5.1

Dr Naidoo a Psychiatrist, the plaintiff was diagnosed with stage 4 cervical cancer in December 2017 and she is on treatment in that regard. She revealed that she discovered that she was an adopted child and tried to commit suicide in 2015.; she presented with depressive and travel related anxiety; has symptoms of caffeine and other medications abuse.

Recommendation: Provision must be made for her to be reviewed by a psychiatrist at least twenty sessions	R36 000.00
provision should be made for antidepressant and other psychotropic	R60 000. 00
Provision should be made for one admission to Dual Diagnosis unit and one admission,	R90 000.00
Provision should be made for Individual Therapy with a Clinical Psychologist for at least thirty sessions.

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5.2

Louise Schubert: the accident has truncated plaintiff's work and professional aspirations completely. She has been subjected to a total loss of earnings from date of the accident (my emphasis).

5.3 Clint Daglish a Biokinetics: the plaintiff remains disabled by her knee and ankle pain as a result of the injuries sustained in the accident. She is likely to continue having limited function of the right ankle and left knee. She faces a prospect of painful surgery and post-surgery recovery in the near future. Due to the extensive damage to the left knee and right ankle she is likely to experience ongoing limited mobility and ambulation.;

5.4

Dr Volkerzs an Orthopaedic: surgeon opined that plaintiff sustained a compound fracture of the right distal tibia and a doublr fracture of the fibula. There was also involvement of the tibia plafond on the lateral side. This was treated, albeit delayed, with a debridement and external fixator. Needless to say that she ended up with a septic distal tibia. The fracture went on to unite and consolidate and both clinically and radiologically she has got evidence of post-traumatic osteoarthritis of the righty ankle, there is pain and stiffness and narrowing of the joint on X-ray. She will only be able to do work of a sedentary nature, will not be able to do standing work or any work that involves walking; In her addendum dated 16 October 2017 Dr Volkerzs opined that for the time being the sepsis in the right distal tibula seems to have been cleared after numerous surgical procedures, however that is not a guarantee that there will not be a re-currency in future; she cannot see her earning an income in the foreseeable future, at least not until such time that her right ankle has been fixed.

Dr Volkerzs remarking on her hospital history stated that the plaintiff was taken from the scene of the accident and taken by ambulance to the Prince Mshiyeni Memorial Hospital near Umlazi. She was admitted to the ward and not operated on until a week later when the ankle was debrided and external fixator was applied and wires around her left knee cap put.

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The following day a wound inspection was done and she was told that the doctor would have to amputate the right leg, below the knee. Needles to state that the plaintiff got a fright and signed herself out of hospital. She then spent three months with her husband consulting with various doctors in different hospitals and decided to leave it for the time being, and she had an infection as well. After three months she went back to Mshiyeni Memorial Hospital and came under the care of Dr Arnold. She then had ten more surgeries until February 2015.

The doctor in her follow up report of 4 December 2019 remarked that the plaintiff informed him that she is afraid to return to Dir. Marais in case he wants to further operate her. She was also diagnosed with cervical cancer in 2017.

Future medical expenses

Dr Volkerzs in respect of future medical expenses opined that;

for the so-called "conservative" treatment of her infected right distal tibia, i.e. the repetitive administration of antibiotics and occasional incision and drainage of an abscess pa	R30, 000
for the so-called "Lautenbach Procedure"	R250 000
for the formal ankle arthrodesis	R120 000
for arthroscopic debridement of the left knee	R60 000
a total knee replacement	R180 000

5.5

M Bell, Occupational Therapist, report of 5/10/2016 plaintiff worked for a company called Austen panel and paints but was contacted by Toyota. She worked 5 days a week, had lunch breaks. She had to drive to work, was a qualified controller in paint side. Every month she received a list of cars and what parts needed to be put on each car. Her work required her to walk a lot, never allowed to be seated. She often had to stoop, crouch or kneel as she checked the cars and

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also carry parts. She now has difficulties in crouching and kneeling. Has difficulties in concentrating because of the pain after she had been walking too long. Her right leg is 1cm smaller than the left leg at knee level and shaft. The right ankle is swollen and larger than the left ankle. There is a small wound oozing with pus on the median area of the ankle. She is unable to move the right ankle properly. She can slightly flex and extend the ankle but she cannot invert or evert the ankle, inter alia, she is now unable to lift heavy objects;

5.6

A Stipp, Occupational Therapist: plaintiff is suffering from a depressed mood, she presented with hypertension; limitation related to her left knee and right ankle, it would seem that her pain in the left knee is becoming more problematic and this could be because of overuse; loading the affected joints could increase degeneration in the left knee and right ankle. In view of her injuries, her work should furthermore have the following characteristics: extended periods of standing or working in static positions should be limited to occasional; walking should be limited to occasional; prolonged, repetitive movements involving the lower limbs should be limited to kneeling, and crouching should be limited; excessive stair climbing should be limited to occasional; rest breaks and postural changes are recommended. Stipp opined that because of the sequelae of the accident related injuries of the plaintiff, she should be compensated for total loss of earnings until normal retirement age 60-65.

[6]

From the quantum related documents in Bundle 2:

6.1

plaintiff was employed by Austin's Panel & Paint CC as a self-employed contractor/general contractor. Due to the nature of the accident on 21 July 2014 she was unable to attend work. She earned R1047.69 per week;

6.2

A further document titled Contract of Labour entered between the plaintiff and Austin Panel & Paint CC, with the commencement date on 1 February 2014 to 31 January 2015; her job description was a general worker with duties being general

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worker and allied. Her remuneration is R847.69 and work hours being from 7:15 to 4:30 pm Monday to Friday;

6.3

A letter dated 10 November 2014...