IN THE HIGH COURT OF SOUTH AFRICA

(IN THE CISKEI DIVISION)

								CASE NO. 388/2006

In the matter between:-

SABELO CHRISTOPHER SOFUTE			PLAINTIFF

and

ROAD ACCIDENT FUND				DEFENDANT

JUDGMENT

DHLODHLO ADJP:

1.	On 21 April 1998 in Mdantsane a collision occurred between a motor vehicle with registration letter and number CE 146004 (the insured vehicle which was driven by one Xolani Mbinda) and the Plaintiff who was seated on the side of the road in which the said motor vehicle was being driven.
2.	The collision was caused by the sole negligence of the insured driver.As a result of the collision the Plaintiff sustained bodily injuries.

3.	The Plaintiff claims from the Defendant:
“Accrued loss of earnings		R160448.00
Prospective loss of earnings		R532254.00
TOTAL					R692702.00”.

4.	In respect of shock, pain and suffering, permanent discomfort, inconvenience, permanent disfigurement, permanent disability, permanent loss of amenities of life and contumelia the Plaintiff claims R250 000.00.  This brings the total  sum claimed to R1059 548.00 together with interest on such damages as may be awarded by the Court a temporae morae and costs of suit and interest thereon calculated at the legal rate of interest from a date fourteen (14) days after judgment to date of payment thereof.

5.	On 13 November 2006 this Court made the following order:-

1.	“ The Defendant shall pay to the Plaintiff 100% of the Plaintiff’s damages as may, in due course, be either agreed upon or determined by the above Honourable Court;

2.	The Defendant shall pay the Plaintiff’s costs relating to the merits of the Plaintiff’s claim, as between Party and Party, as may be taxed or agreed upon, together with interest thereon calculated at the legal rate, from a date fourteen (14) days after the taxing master’s allocatur to date of payment;

3.	Plaintiff is declared a necessary witness;

4.	The matter is postponed to a date to be allocated by the Registrar of the Court for a determination of the quantum of Plaintiff’s damages”.

6.	In terms of paragraph four (4) of the minute in terms of rule 37 (1) (B) (pre-trial conference)  held on 03 April 2007 it is the Defendant’s intention to tender an undertaking in terms of section 17 (4) (a) in respect of the Plaintiff’s claim for future medical treatment.  The request to make a formal tender was noted.

7.	In its amended plea the Defendant pleads that at the time of the collision the Plaintiff was an employee entitled to compensation in terms of the Compensation of Occupational Injuries and Diseases Act of 1993 (“COIDA),  that he recovered compensation in the sum of R150.14 and that the total of  Plaintiff’s special damages, alternatively the sum of R150.14, falls to be deducted from the damages payable to the Plaintiff, if any.

8.	The Plaintiff was born on 28 November 1978.  He left school at standard seven.  At the time of the injury he was employed by TVR Construction as a general labourer earning R11.09 per hour.

9.	After the accident the Plaintiff was taken to Cecelia Makiwane hospital where he complained of a painful left leg.  The left leg was in splint.  He was subsequently seen by Dr Theo Berkowitz who is an orthopaedic surgeon.  In his report marked “Exhibit E” Dr Berkowitz refers to notes of Cecilia Makiwane hospital which read:

“…. A piece of bone broken loose, wounds on the left leg, one anteriorly and the other posteriorly bleeding marked.  Pressure bandage applied”.

10.	Dr Berkowitz noted very deep irregular punctured lacerated wounds on the leg.  The report states that on 29 April 1998 under spinal anaesthetic a skin grafting procedure was carried out. Dr Berkowitz noted that the Plaintiff was experiencing pain in the left knee if he walked fairly far.  In cold weather he  experienced pain in the shin in the region of the scar.  He was unable to mix concrete because of pain in the left knee if he did so.

11.	Concerning amenities of life, the report states that the Plaintiff used to play soccer but he is no longer able to do so.  When he tried to play the game his leg became swollen.  On examination Dr Berkowitz noted that the Plaintiff looked fit, was slightly built and walked without any obvious limp.  Dr Berkowitz noted that there was wasting of the left thigh.  The Plaintiff was unable to hop on the left leg.  When he squatted he complained of pain in the left knee.

12.	Summing up his opinion, Dr Berkowitz said that the Plaintiff sustained an extremely severe soft tissue injury of the left leg and that “he would have experienced severe pain for a day or two and moderate pain for about three or four days”.

Dr Berkowitz said that “following the skin grafting procedure there would have been a flare up of pain at the donor site for about four or five days. The donor site is often the source of prolonged discomfort”.

The Plaintiff sustained a posterior cruciate ligament injury and has residual symptoms in the left knee joint.

13.	According to the report, with  passage of time, the degenerative changes will occur.  Dr Berkowitz feels that the Plaintiff will definitely have to retire ten years prematurely from any labouring occupation and adds that “Even if one were able to rehabilitate him satisfactorily his physical capabilities would be diminished by an arbitrary figure of 30%”.

Dr Berkowitz feels that the likelihood of the Plaintiff requiring major reconstruction such as a total knee replacement are in the order of 15%.  He concludes his report by stating that the injuries have not influenced the Plaintiff’s life expectancy.

14.	On 19 March 2001 Dr Berkowitz examined the Plaintiff and compiled a report marked “Exhibit F”.  He noted that the Plaintiff walked without a limp.  There was obvious wasting of the left thigh.  The scarring was unchanged.  He had full movement of the knee although he experienced some pain at the extreme of flexion. 

Summing up his opinion, Dr Berkowitz states that there has been a deterioration in the relatively short period since he had last seen him.  There was obvious crepitus on flexion extension movements of the left knee.His ability to perform labouring work entailing crouching had been seriously compromised.  He could certainly not be able to compete in the open labour market.

15.	After Dr Berkowitz had seen the Plaintiff in December 2006 he compiled a report marked “Exhibit G”. According to this report the Plaintiff said that he could not run and that he could not squat for long.  In cold weather he experienced pain in the knee.  When he sits down he has to keep his left knee slightly straighter than the right one.  He cannot lift a heavy object because he cannot balance properly on his left knee.  He was able to hop although less vigorously on the left leg.

He states in this report that his opinion as to the pain and discomfort experienced  by the Plaintiff as a result of the accident, was obviously unchanged. Dr Berkowitz felt that the deterioration in the condition of the Plaintiff’s left knee is inevitable.

16.	The Plaintiff should probably undergo arthroscopic debridement in the near future in order to give him some relief of a relatively short period.  Dr Berkowitz felt that in the long term a knee replacement is very likely and that this should be allowed for on a 60 to 70% contingency basis.  Following this procedure, the Plaintiff will experience extremely severe pain for two to three days and moderate pain for four to six weeks.  The Plaintiff will require crutches for approximately six weeks.

17.	In his testimony Dr Berkowitz stood by his reports which have been referred to earlier in this judgment and said that the Plaintiff’s injury to the lower leg was severe.  He said that during skin traction a patient is immobilized and confined to bed and that the patient goes through unpleasant experience.  Dr Berkowitz said there was 60-70% likelihood of the lining of the joint.

He said that the Plaintiff would be classified as 100% disabled for the open labour market. Concerning the likehood of the Plaintiff’s knee replacement, Dr Berkowitz said that 65% would be a reasonable comprise.

18.	The Plaintiff said that he left school at standard seven after June 1997 because he was financially unable to continue.  He believed that he was permanently employed by TVR Construction which constructed pavements in Mdantsane.  He had not worked before.  He said that after the accident he used crutches and felt pain.  He felt pain even after he had stopped using them.

Before the injury he worked as a general labourer and prepared concrete.  A foreman at TVR Construction trained him to do this work.  He can no longer do this job because of injuries he sustained.  He used to play soccer but he is now unable to do so.  He can no longer walk a long distance or stand for a long time because his knee, leg and foot swell.  He receives no disability grant from the government.  He had thus far received no compensation for occupational injuries, not even the amount of R150.14 which is reflected on “Exhibit D”.

19.	Under cross-examination by Mr Smith, the Plaintiff said that he had not tried to earn income by selling certain items because he had no money and that, if he had money he would have sold certain items from his house.  
He said that he could not sell items outside his house because his legs would swell.  When it is cold his legs become painful.  At present he shares with his mother whatever she purchases with her pension money.

He said that a foreman by the name of Cedric informed him that he was permanently employed at TVR Construction.  He agreed that in Mdantsane where he lives many work seekers cannot find jobs.  When he was injured he had worked for five weeks at the construction company.

20.	Under re-examination by Mr Wood, the Plaintiff said that some of his brothers work in Cape Town because they could not find work in East London and that, had he not been injured he would consider going to work in Cape Town if offered employment there.

21.	Ms Joan Podges is an accountant in the employ of TVR Construction.  

She confirmed that the Plaintiff was employed at the company as a general labourer and that if he continued to work he would be earning R11.09 per hour as from 01 March 2007.  According to Ms Podges, had the Plaintiff not sustained the injury, he would have continued to work for the company.

22.	Under cross-examination, Ms Podges conceded that she was not responsible for recruitment of staff.  She said that they normally did not retrench employees who were in permanent employment.

23.	Vincent Alfred Thompson was called as a witness by the Defendant.  He is co-owner of TVR Construction which is a civil engineering construction company.  He told the Court that the Plaintiff was employed by the company between 21 March 1998 and 21 April 1998.  Thompson said that the company employs workers according the task it has to perform.  For this reason, employees are on contract to work for the company until the completion of that task.  He sad that they establish liaison committees which  supply labour for each task the company is to perform and that the Plaintiff’s employment would have been terminated on 30 June 1998 when the task was completed.

At the time of the accident the Plaintiff earned R236.25 per week.  He said that Ms Podges was mistaken when she said that the Plaintiff was in permanent employment.  Thompson said that in very exceptional cases the company retains a task employee’s labour if he excels in his work.  He said that they do not keep a record of those retained but he believed that in twenty years only two general labourers were retained.  He did not know why Cedric told the Plaintiff that he was in permanent employment.  Thompson said that if they operate in a certain zone community members prefer that local people be employed in that community.

24.	The report by Dr DB Mackenzie (orthopaedic surgeon) at page 59 of the record was admitted by agreement as evidence without calling him as a witness.

The report of Mr Gerard W Jacobson who is a consulting actuary marked “Exhibit M” dated 07 May 2007 was admitted as evidence by agreement.  The report assumes that the Plaintiff would have worked as a labourer in the construction industry.

25.1	According to Mr Jacobson’s report, if the Plaintiff continued to work and retired at 65 years, his loss of income would have been:
Accrued loss							
Value of income but for accident				R160.448
10% contingency deduction					R16.045
net accrued loss							R144.403

Prospective loss
Value of income but for accident				R523.254
20% contingency deduction					R104.651
net prospective loss						R418.603
Total net loss							R563.006

25.2	If he continued to work and retired at the age of 60 years, his loss of earnings would have been:
Accrued loss
Value of income but for the accident			R160.448
10% contingency deduction					R16.045
net accrued loss							R144.403

Prospective loss
Value of income but for accident				R493.256
20% contingency deduction					R98.651
net prospective loss						R394.605
Total net loss							R539.008	

26.	Mr Jacobson draws the attention that prior to settlement of the claim it should be ascertained whether or not any award has been made by the Compensation Commissioner as contemplated in the Compensation for Occupational Injuries and Diseases Act of 1993 and that any award made in respect of loss of income should be deducted from the loss calculated in his report.  According to evidence adduced the Plaintiff had not received any compensation from the Compensation Commissioner.

27.	I accept that at the time of the accident the Plaintiff was temporarily employed by TVR Construction.  He had been trained by his foreman to prepare concrete.  

He had acquired a skill which would have made him more marketable in the construction and the building industries, assuming that the company would not have continued to employ him after 30 June 1998. It is very likely that he would have found employment in one of these industries in Mdantsane or in cities.
In my view it is very unlikely that he would have remained unemployed for a long time.

28.	Mr Wood who appeared for the Plaintiff referred to Mr Jacobson’s calculations and argued that the Defendant had led no evidence to challenge the basis of his (Mr Jacobson’s) calculations.  Mr Wood submitted that if the Plaintiff would not find employment in his area, he would have moved to cities to find jobs there.  He left it to the Court’s discretion to decide whether the Plaintiff would have retired from his work as a general labourer at 60 years or at 65 years.

29.	Mr Smith who represented the Defendant argued that general labourers are generally young persons who do not work up to the age of 65 years.  I share Mr Smith’s view on this aspect because working as a general labourer in the construction and the building industries entails physical exertion.

30.	In Goodall V President Insurance Co. 1978 (1) SA 389 (W) at 392H- Margo J said:-
“In the assessment of a proper allowance for contingencies, arbitrary considerations must inevitably play a part, for the art of science of foretelling the future, so confidently practised by ancient prophets and soothsayers and by modern authors of a certain type of almanack, is not numbered among the qualifications for judicial office”.(at 393A)

31.	Mr Jacobson has deducted for contingencies 10% for the Plaintiff’s past loss of income and 20% for the future loss.  In my view it would be proper and correct to provide for a contingency of 20% in respect of both.  This is neither harsh nor generous - cf AA Mutual Insurance Association Ltd v Maqula 1978 (1) SA 805 (A).  This means that if the Plaintiff continued to work until retirement at the age of 60 years, which I accept, the value of his income, but for the accident, less 20% contingency deduction, would be R522 963.

32.	Concerning general damages, Mr Wood submitted that an award of R250 000.00 which the Plaintiff has claimed would be reasonable.  Mr Smith urged the court to award an amount less than R200 000.00

33.	“It is settled law that a trial Court has a wide discretion to award what it in the particular circumstances of the case considers to be a fair and adequate compensation to the injured party for his bodily injuries and their sequelae” (per Joubert JA in AA Mutual Insurance Association Ltd case- supra) See also Protea Assurance Co Ltd v Lamb 1971(1) SA 530 (A) 535A-B.

34.	In Road Accident Fund v Marunga 2003 (5) SA 164 (SCA)
	the respondent had sustained the following injuries:
(i)	a fracture of the left femur
(ii)	a soft tissue injury in the chest area
(iii)	bruises on the forehead, left arm and left knee

He received treatment, attended at hospitals and was subjected to surgical procedures, one of which involved inserting of a plate and screws in the left leg in order to deal with the fracture of the left femur

He spent five months in hospital recuperating. Approximately two months were spent with his leg in traction and in plaster.  After discharge from hospital he was compelled to use crutches as a walking aid for about five months.   During 1997 he was readmitted to hospital for the surgical removal of the plate and screws.  It was found that the plate had moved and caused a mal-union and angulation of the femur.  This resulted in shortening of his left leg. 
He spent two weeks in hospital after the plate and one of the screws had been removed.
Before the collision the respondent was a keen soccer and volleyball player.  After injuries had been sustained he was unable to   participate in these sports.  

He experienced difficulty in lifting objects and could not remain standing for long periods.  He experienced pain in his leg when he walked long distances.  From the time of the collision until 1995 he experienced pain in his chest area.

Dr. Ledwaba, an orthopaedic surgeon, said, among others, that there was no evidence that the respondent experienced pain when he walked short distances.  
The orthopaedic surgeon said that the fracture itself had healed.  His disfigurement was permanent.
He suffered 20% loss of power in his left leg.  His mobility was permanently restricted.  He would have to endure the discomfort of walking with a shortened and less powerful leg for the rest of his life.

35.	The trial court had awarded him an amount of R375 000.00 for general damages.  On appeal this amount was substituted by the amount of R175 000.00 which the court considered an appropriate award of damages.

36.	In an unreported judgment of the Ciskei High Court delivered on 18 August 2003 in the case Peter V Road Accident Fund case number 356/2002, the Plaintiff had sustained the following injuries as a result of motor collision: a fracture of the pelvis and acetabulum, two scalp lacerations, multiple deep abrasions to the right shoulder and upper arm and over the lumber spine.
	After the accident the plaintiff was hospitalized.  At the time of the collision the plaintiff was 40 years of age.  He experienced pain which worsened when he moved.  He found it difficult to walk a distance of about 200 metres.  
	Dr. Venter, a plastic and reconstructive surgeon, foresaw that the plaintiff would develop osteoarthritis as a result of the fracture of the right acetabulum.

It was foreseen that the Plaintiff would require conservative treatment in the initial stages and that he would within five years of the date of the collision have to undergo a complete hip replacement.  It was further foreseen that a revision procedure would be necessary in fifteen years’ time.  
It was expected that after the revision procedure his hip would be good for the remainder of his natural life.

	No permanent disabilities were expected to result from 
	lacerations and abrasions.

37.	In determining an award for general damages, Van Zyl J  referred to the Marunga case (supra) at 170F wherein Navsa JA quoted with approval the following passage in  Wright V Multilateral motor Vehicle Accident Fund a 1977 decision of the Natal Provincial Division (Corbert and Honey Vol 4E 3 – 36 where Broome DJP said:-
“I consider that when having regard to previous awards one must recognize that there is a tendency for awards now to be higher than they were in the past.  I believe this to be a natural reflection of the changes in society, the recognition of greater individual freedom and opportunity, rising standards of living and the recognition that our awards in the past have been significantly lower than those in most other countries”.

38.	Having considered all factors and circumstances applicable to the assessment of damages, the medical evidence placed before him, the past awards made in various cases and having taken into account the modern approach to the award of damages adopted in the Wright and Marunga judgments, Mr Justice Van Zyl was of the view that the general damages suffered by the plaintiff amounted to R180 000.00.

39.	In a more recent unreported case of the Eastern Cape Division, namely Andrew Cunningham Roux and Road Accident Fund (case number E.L. 397/2002) decided on 15 August 2005, the plaintiff was a pedestrian standing on an island in Voortrekker Street in East London.  He was knocked down by a mini-bus and sustained severe bodily injuries.
	Injuries sustained by the plaintiff were:
Severe injury to the area of his right ankle, compound comminuted spiral fracture of the distal tibia with an associated fracture of the fibula.
The fractures were some 3 to 4 cms above the ankle joint.  He also sustained an intra-articular injury to the right knee joint, probably involving the attachment of the anterior cruciate ligament in the area of the tibial spine and a tear of the medial meniscus. 
There was also a large open wound over the right leg which left a clearly visible scar.

40.	The Plaintiff was removed by ambulance to hospital where the wound was irrigated and debribed in theatre.  Two days later on 08 March 2000 he was again returned to theatre where, under general anaesthetic, an open reduction and internal fixation was performed on the right fibula, the fracture being fixed with an eight-hole plate and screws.  The leg was swollen for some days after the operation.  It was not clear how long he was hospitalised but it seemed to have been for several weeks.  After being released from hospital the plaintiff was able to move around with the assistance of crutches.  In April 2000 he slipped while on crutches and fell.

The strain this mishap placed on the fibula resulted in the fibula fracturing immediately above the hardware which had been inserted during the operation on 08 March 2000.  He was readmitted to hospital and returned to theatre where an unreamed tibial nail was inserted into the right tibia and secured with three screws.  He was placed in an above knee plaster of Paris cast and mobilised, partially weight bearing on crutches.
On 26 June 2000 it was established that the plaintiff had developed a ten degree varus deformity of the lower limb. 

By 28 August 2000 the deformity had increased to thirty degrees.  On 04 October 2000 the fracture had united and the Plaintiff underwent a further operation to remove the distal screw.  On 30 October 2002 he underwent a further operation in which the deformity of his right leg was corrected.
The Plaintiff was left with a shortening of the leg in excess of 3cms.  As a result, he walked with an antalgic gait.  He lost a great deal of soft tissue, especially over the lateral aspect of the leg.  He could not spend much time on his feet.  He could no longer squat or run.  
Prior to the accident he enjoyed rock fishing on a regular basis.  He experienced daily pain as a result of the injuries to his lower limb. 
In some two years the plaintiff would be obliged to undergo surgery to remove the fixtor used in the operation.  He would require conservative treatment for the remainder of his lifetime for pain and discomfort in the region of the right foot and ankle.
	At some stage the plaintiff underwent a skin graft operation.  Skin was taken from the right thigh having been grafted onto an area immediately above the ankle.  This left a scar of some 14 by 8 cms on the right lower ankle.

41.	In determining quantum, Leach J referred to some case law, including those which have been referred to in this judgment.  The learned Judge took into account the facts of the case and principles in regard to the assessment of general damages.  He also considered the awards in cases he had referred to and that there is “a continuing erosion in the buying power of money”, the nature and severity of the plaintiff’s injuries and the 
treatment he had had to undergo and would be obliged to undergo in the future.  He felt that an award of R185 000.00 was justified in respect of shock, pain and suffering, disfigurement, disabilities and loss of amenities of life.

42.	Having considered the facts of the present case, principles applicable to the assessment of damages, the awards in past cases (especially comparable ones), the tendency for awards now to be higher than they were in the past, that the plaintiff is very young, the nature and severity of his injuries and the treatment he has had to go through and that he will be obliged to undergo in the future, I feel that an award of R220 000.00 is appropriate in respect of shock, pain and suffering, discomfort,disfigurement and disability giving rise to loss of amenities  of life.

43.	I make the following order:-
43.1.1	The defendant is to pay to plaintiff the following sums:
43.1.2	R128 358 as and for past loss of earnings;
43.1.3	The sum of R394 605 in respect  of future loss of earnings;
43.1.4	Total 	= R522 963
43.1.5	The sum of R220 000.00 in respect of general damages;
43.1.6	Together with interest thereon at the legal rate calculated from a date fourteen (14) days after the date of this order to date of payment.

44.	The defendant is ordered to issue an undertaking in terms of section 17 of the Road Accident Fund Act No. 56 of 1996 for the costs of the future accommodation of the plaintiff in hospital or nursing home for treatment or of rendering of a service to him or supplying of goods to him arising out of the injuries sustained by him in the motor collision which occurred on 21 April 1998, after such costs have been incurred and upon proof thereof.

45.	The Defendant is to pay the plaintiff’s taxed costs on the High Court scale including qualifying expenses of Dr Berkowitz and Mr Jacobson with interest thereon at the legal rate calculated from a date fourteen (14) days after allocatur to date of payment.

________________________________ 
AEB DHLODHLO
JUDGE OF THE HIGH COURT
ACTING DEPUTY JUDGE PRESIDENT
06 SEPETEMBER 2007

HEARD ON				:	07 AND 08  MAY 2007
JUDGMENT HANDED DOWN ON	:	13 SEPTEMBER 2007

FOR THE PLAINTIFF		:	ADVOCATE CB WOOD
FOR THE DEFENDANT		:	MR RRH SMITH

PLAINTIFF’S ATTORNEYS		:	BAX KAPLAN INC.
						EAST LONDON
	:	HUTTON & COOK
						KING WIILIAMSTOWN
DEFENDANT’S ATTORNEYS	:	HART & BEYERS
						EAST LONDON
						MLONYENI & LESELE 
KING WILLIAMSTOWN