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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE LOCAL DIVISION, PORT ELIZABETH

                                                                                                Case No.: 3854/2012

                                                                                                Date Heard:  22 October 2014

                                                                                        Date Delivered:  4 November 2014

NTOMBIZANDILE NCAMA                                                                                             Plaintiff

and

ROAD ACCIDENT FUND                                                                                           Defendant

JUDGMENT

EKSTEEN J:

[1] The plaintiff was a pedestrian crossing Old Grahamstown Road at Swartkops in Port Elizabeth early in the morning on 29 December 2008 when a vehicle (herein referred to as “the insured vehicle”) came into collision with her.  In and as result of the collision she sustained severe bodily injury and has suffered damages in consequence thereof.  The plaintiff contends that the negligence of the driver of the insured vehicle was the sole cause of the collision and she has therefore issued summons against the defendant in terms of the Road Accident Fund Act 56 of 1996 (herein referred to as “the Act”) for the recovery of her damages. 

[2] In its plea the defendant denied knowledge of the collision and of the injuries which the plaintiff sustained.  No allegation of contributory negligence was made.  In these circumstances, when the trial was called before me what was in issue was the alleged negligence of the insured driver and the quantum of the plaintiffs alleged damages. 

Negligence

[3] In respect of the merits the plaintiff called a single witness, Gladman Mpako.  Mpako was an eye witness to the collision.  He is an electrical fitter employed with Transwerk in Port Elizabeth and was driving towards Port Elizabeth on the Old Grahamstown Road at approximately 09h00 in the morning.  He states that the weather was good and the tarred road surface was dry.  He was travelling at approximately 40km/h.  At a distance ahead of him he noticed a woman, the plaintiff, with two small children.  She was carrying the youngest child in her right arm and held the hand of the other child in her left hand.  The three of them started to cross the road approximately 100 metres ahead of him from his left to his right and he hooted to alert them to his presence.  At the position where they crossed the road Old Grahamstown Road has a solid centre barrier line.  As the plaintiff approached the solid barrier line, still on Mpako’s left hand side of the road the insured vehicle entered Old Grahamstown Road from John Tallant Road approximately 50 metres beyond the plaintiff’s position. 

[4] The insured vehicle was travelling at a very considerable speed and it turned into Old Grahamstown Road proceeding towards the plaintiff in the opposite direction to that in which Mpako was driving.  As it took the corner into Old Grahamstown Road Mpako states that it drifted onto its incorrect side of the road.  It immediately served to towards its correct side of the road still travelling at a high speed which Mpako estimates to be in the vicinity of 140km/h.  At this stage, Mpako says that the plaintiff had not yet reached the centre white line and was still on his left hand side of the road.  She and the children stood still and she appeared to cling firmly to the hand of the pedestrian child.  It appears, he says, as if the driver of the insured vehicle had difficulty in controlling the insured vehicle which swerved from side to side finally moving onto its incorrect side of the road where it collided with the plaintiff and the children, still stationary in the same position. 

[5] The evidence of Mpako was not seriously challenged in cross-examination and the defendant tendered no evidence at all.  I have no hesitation in holding that on the undisputed evidence that the negligence of the driver of the insured vehicle was the cause of the collision, he having driven the insured vehicle at an excessive speed onto the incorrect side of the road across a solid barrier line.  In the circumstances the plaintiff is entitled to recover such damages as she is able to establish that she has suffered as a result of the injuries which she sustained in the collision. 

Quantum of damage

[6] I turn to consider the quantum of her damages.  In the Particulars of Claim the plaintiff claimed damages for past medical expenses, future medical expenses, past and future loss of income and general damages.  At the commencement of the trial I was advised by Mr Frost, on behalf of the plaintiff,  that the plaintiff did not persist in the claim relating to past medical expenses.  During argument Mr Milinganiso, on behalf of the defendant, advised that the defendant wished to tender an undertaking in terms of the provisions of section 17(4) of the Act and requested that I should make an order to that effect.  In these circumstances it is not necessary for present purposes to quantify the claim for future medical expenses.

Loss of earnings

[7] The plaintiff claims an amount of R251 900,00 in respect of past loss of earnings and an amount of R1 034 100,00 in respect of future loss of income.  Medico-legal reports have been filed in terms of the provisions of rule 36(9) of the Uniform Rules of Court, inter alia, in respect of Dr Oelofse, an orthopaedic surgeon, Ms van Zyl, an occupational therapist, and Dr Munyaka, an industrial psychologist.  It was recorded in a minute of a pre-trial conference held in terms of the provisions of Rule 37 of the Uniform Rules of Court on the morning of trial that the correctness of the content of each of these reports was admitted.  I enquired from counsel as to the extent of the admission and I was advised by Mr Frost and Mr Milinganiso that both the opinions expressed in these reports and the factual information relied upon for reaching the conclusions set out in the reports were admitted.  An actuarial report prepared by Mr Alex Munro, an actuary in the employ of Munroe Forensic Actuaries was also filed pursuant to the provisions of Rule 36(9) of the Uniform Rules of Court.  Similarly the minute of the Rule 37 conference held on the morning of trial records that the defendant admits the correctness of the actuarial results recorded in the report of Munro Forensic Actuaries dated 13 October 2014.  Again Mr Milinganiso advised that the admission entailed an admission of the correctness of the assumptions made for purposes of the calculation and of the actuarial soundness of the calculations.  Mr Munro calculated the loss of earning capacity accepting the factual information and conclusions reached by Dr Munyaka in respect of the plaintiff’s pre-morbib employment career and earnings and post-morbib predicted career path and earnings.  Mr Munro calculated the plaintiff’s loss for past loss of income in the amount of R251 900,00 and in respect of future loss of earning capacity in the amount of R1 034 100,00, same being the figures included in the amended Particulars of Claim.

[8] There is accordingly no dispute between the parties in respect of the extent of the plaintiff’s past and future loss of income and it is difficult to understand why these figures could not have been agreed prior to the commencement of trial.  What remains to be considered is whether the figures sought to be adjusted to allow for contingencies.

[9] The collision occurred on 29 December 2008 and the plaintiff’s claim in respect of past loss of income has been calculated over a period of approximately 6 years.  She was a young woman who was in good health prior to the accident and no particular facts have been raised which would justify a larger than usual contingency deduction from the calculation in respect of past loss of earnings.  I intend therefore to deduct 5% from the calculation in respect of past loss of earnings to provide for the ordinary contingencies of life. 

[10] In respect of the future loss of earning capacity it emerges from the report of Dr Munyaka that the plaintiff had, prior to the collision, been in stable employment as a cleaner at George Cleaning Services where she had worked since 2000.  She had initially commenced on a part-time basis as and when the demand for cleaning services required her employment.  At the time of the collision she was employed for 5 days a week and earning R135 per day plus R8 for transport.  Her total package which included the salary, transport allowances and bonus amounted to R34 600,00 per annum.  Mr Frost urged me to apply what he termed to be the customary contingency deduction of 15% to the calculated loss for future loss of earnings.  Mr Milinganiso did not make any contrary submission.  I consider that a deduction of 15% from the admitted calculation would be fair given all the circumstances of the present case.  In the circumstances I propose to award to the plaintiff the amount of R239 305,00 as and for past loss of earnings and an amount of R878 985,00 in respect of future loss of income.

General damages

[11] I turn to the plaintiff’s general damages.  In the Particulars of the Plaintiff’s Claim it is alleged that the plaintiff sustained, inter alia, a compound fracture of the right femur and a fracture of the left pubic ramis.  I have indicated earlier that the defendant denied knowledge of the injuries sustained by the plaintiff.  I have referred earlier to the medico-legal reports which have been admitted and to the extent of such admissions.   The report of Dr Oelofse, an orthopaedic surgeon, records that the plaintiff sustained a traumatic brain injury and an injury to the cervical spine in addition to the injuries reflected in the Particulars of Claim.  By virtue of the admission of the evidence relating thereto it is necessary to have regard to these injuries too. 

[13] It emerges from the report of Dr Oelofse that after the accident the plaintiff was taken to hospital by ambulance and sent for X-rays.  She was admitted to hospital for approximately 7 days and received pain medication.  An open reduction and internal fixation of the right femur was performed and she received two units of blood.  She was thereafter rehabilitated with physiotherapy.

[14] Dr Oelofse records that the plaintiff sustained a fracture of the skull with bleeding for which pain medication was administered.  Currently the plaintiff experiences moderately severe headaches on a regular basis and has a mild short term memory loss.  In addition she exhibits mild behavioural disturbances of aggressiveness, depression and anxiety. 

[15] In respect of the cervical spine injury Dr Oelofse records that the plaintiff sustained a neck injury which required her to be put in a neck brace and she received pain medication and anti-inflammatories.  She still experiences moderately severe pain in the C2 level and moderate pain between the shoulder blades.

[16] On a physical examination of her neck Dr Oelofse reports that there is a loss of lordosis and that she experiences severe tenderness in the posterior midline C2-T1.  He noted mild tenderness in the left and right paravertebral area and records that she experiences a moderately severe muscle spasm.  He concluded that the plaintiff has sustained a disc lesion at the level C5/6.  He proposes that conservative treatment in the form of painkillers and anti-inflammatory drugs be administered in respect of the neck injury.  In addition, physiotherapy, biokinetics and the wearing of a neck brace when pain becomes severe will be required.  Dr Oelofse predicts that there is a 30% chance that an anterior fusion at C5/6 will be required.  In the event that a fusion is performed he postulates that there is a 20% chance of her developing secondary pathology at a level adjacent to the fusion.  In the event therefore that the plaintiff does require an anterior fusion at C5/6 there is a 20% chance of having to undergo a secondary fusion due to the degeneration at an adjacent level. 

[17] Turning to the injury of the pelvis Dr Oelofse records that she sustained a soft tissue injury to the pubic ring and si-joints.  For this injury she was treated with physiotherapy.  Currently the plaintiff still experiences moderately severe pain over the right and left sacroiliac joint.

[18] On examination Dr Oelofse noted that the plaintiff has difficulty undressing and he was able to demonstrate moderately severe tenderness over the left and right sacroiliac joint, the symphysis pubis and the pubic rami (left).  He concluded that there was still mild instability of the pubic symphysis.   The Fabre test yielded a positive finding. 

[19] Dr Oelofse concluded that there is a soft tissue injury of the right and left sacroiliac joints and the pelvic ring.  He recommended conservative treatment in the form of painkillers and anti-inflammatories.  Physiotherapy, biokinetics, Pilates exercises and the wearing of a supportive pelvic band is also recommended.  He does not however predict any future surgical intervention in respect of the injury to the pelvis.

[20] The fracture of the distal femur required the administration of pain medication and anti-inflammatories.  As recorded earlier an open reduction and internal fixation of the fracture was carried out and a Plaster of Paris cast applied.  The plaintiff received physiotherapy and required crutches to ambulate.  Upon examination the plaintiff reported moderately severe pain over the old fracture site.  She perceived a mild loss of power and swelling in her leg and reported that she had a limping gait.  She reported that the knee occasionally “gives way” and she experiences pain in the leg when working. 

[21] On examination of the patella femoral joint Dr Oelofse was able to demonstrate tenderness over the internal fixation site and moderately severe retropatellar tenderness.  On the tibiofemoral joint a positive McMurray sign was detected for the medial meniscus injury.  There was also a mild elasticity of the medial collateral crusiate ligaments.  The plaintiff had difficulty in squatting and had a mildly painful gait.  Dr Oelofse concluded that these were positive signs of a fracture of the distal femur which had healed with the internal fixation still in situ.  In respect of this injury too he recommended conservative treatment in the form of painkillers and anti-inflammatories coupled with physiotherapy and biokinetics.  He proposed too that the internal fixation should be removed. 

[22] The aforegoing reflects the nature and extent of the injuries sustained and the medical sequelae of her injuries.

[23] The plaintiff grew up in Cradock and there completed Grade 6 before moving to Port Elizabeth where she ultimately completed Grade 10.  She has no other qualifications and the nature of the work which she was performing was physically demanding.  It is not in dispute that she is unable to take up such a position again. 

[24] Ms Ansie van Zyl records that the plaintiff reports that she currently experiences severe pain in her right knee and leg during colder weather and when she is required to stand for longer periods of time or walk long distances.  She struggles to lift and carry heavier objects.  Plaintiff reported too that she struggles with headaches which are accompanied by neck pain and stiffness.  She cannot sit for longer periods of time due to her lower back pain and she struggles to get up to start walking when she has been sitting for longer periods of time.  She struggles to work in a stooped position due to pain and straightening up from such a position is difficult and painful.

[25] In determining general damages the court is called upon to exercise a broad discretion to award what it considers to be fair and adequate compensation having regard to a broad spectrum of facts and circumstances connected to the plaintiff and the injuries suffered,  including their nature, permanence, severity and the impact on her lifestyle.  In Sandler v Wholesale Coal Suppliers Limited   1941 AD 194 at 199 Watermeyer JA stated:

“The amount to be awarded as compensation can only be determined by the broadest general considerations and the figure arrived at must necessarily be uncertain, depending upon the judge's view of what is fair in all the circumstances of the case.”

I agree with this general approach. 

[26] There is no hard and fast rule of general application requiring the court to consider past awards as they are seldom on all fours with the facts of the case under consideration.  Nevertheless, the court will generally be guided by awards previously made in comparable cases and will be alive to the tendency for awards to be higher in recent years than has previously been the case.  In considering previous awards it is appropriate to have regard to the depreciating value of money due to the ravages of inflation.  It would however be inappropriate to escalate such awards by a slavish application of the consumer price index.  (See for example AA Onderlinge Assuransie Assosiasie Bpk v Sodoms 1980 (3) SA 134 (A).)

[27] On a consideration of these general principles I have endeavoured to assess what I consider to be fair compensation.  The injuries which the plaintiff sustained and the sequelae thereof are set out above.  Mr Frost has urged me to award an amount of R550 000,00  in respect of general damages.  Mr Milinganasio, on the other hand, submits that an amount of R450 000,00 would represent fair compensation.

[28] In seeking to guide me to an appropriate award Mr Frost has referred me to Abrahams v The RAF (Corbett & Honey vol VII J2-1) in support of his submission that an award of R550 000,00 would be appropriate in the present circumstances.  Mr Milinganiso advised that he was unable to refer to any authority in support of his submission.  I have had regard to the facts of a number of previous matters, to the awards that were made in each case, to the effect which the ravages of inflation have had on the value of such awards and to the recent tendency in our courts to make more generous awards.  Suffice it to say that I have had regard to Noble v RAF, Corbett & Honey vol VI J2-54;  Roe v RAF, Corbett & Honey vol VI J2-59;  Abrahams v RAF supra, Rieder v RAF, Corbett & Honey vol VI E6-1;  Mgudlwa v RAF, Corbett & Honey vol VI E3-1;  De Bruyn v RAF, Corbett & Honey vol V J2-69;  Vilakazi v RAF, Corbett & Honey, vol V J2-160 and Van der Mescht v RAF, Corbett & Honey vol VI J2-42.

[29] I have considered all the facts of this matter and I have attempted to take care so as to ensure that the award which I make is fair to both sides, to give just compensation to the plaintiff but not to “pour out largesse from the horn of plenty” at the expense of the defendant (compare Pitt v Economic Insurance Company Limited 1957 (3) SA 284 (N) at 287E-F).  On an assessment of all these considerations I am of the view that an award of R500 000,00 in respect of general damages for pain and suffering, discomfort, disability and the loss of the enjoyment of the amenities of life is appropriate.

Costs

[30] Mr Frost has urged me to make a punitive costs order against the defendant as a token of the displeasure of the court for the manner in which the litigation was conducted.

[31] It is indeed surprising that no agreements could be reached prior to trial in order to narrow the issues.  In respect of the merits no contributory negligence was in issue and the only dispute was whether or not the driver of the insured vehicle was negligent in respect of the causation of the accident.  In a pre-trial minute filed on the morning of trial records the following:

“1.  Q:    Does the Defendant admit that it’s insured driver was negligent to a degree in causing the collision on  29 December 2009 when colliding with the Plaintiff whilst she was a pedestrian?

A:     The Defendant’s legal representative does not admit the content of this paragraph.

Q:     Does the Defendant have its insured driver at Court for the Plaintiff’s legal representative to consult with?

A:     The insured driver was subpoenaed and he is present in Court.”

[32] I have recorded earlier the evidence in respect of the manner in which the collision occurred.  The driver of the insured vehicle was not called to testify and I can only conclude that his instructions during consultation confirmed his negligence.  In these circumstances it is indeed astonishing that no admission in respect of the merits could be forthcoming.

[33] In respect of the claim for future medical expenses the defendant did not procure any medico-legal reports.  All the medico-legal reports filed by the plaintiff were admitted on the morning of trial.  It was only during argument of the matter after each side had closed its case that the defendant requested that an order be made that it provide an undertaking in terms of the provisions of section 17(4) of the Act.  Why this could not have been recorded in a pre-trial minute is difficult to understand.  Nevertheless in the present matter, by virtue of the concession of all the medical reports, it did not result in any undue wastage of court time and money.

[34] Although no settlement was arrived at in respect of the plaintiff’s claim for loss of earning capacity the entire case was admitted on the morning of trial.  This too is a matter which ought to have been addressed in pre-trial conferences.

[35] Rule 37(9)(a) provides:

“(a) At the hearing of the matter, the court shall consider whether or not it is appropriate to make a special order as to costs against a party or his attorney, because he or his attorney—

(i)   ...;   or

(ii)   failed to a material degree to promote the effective disposal of the litigation.

[36] This court has previously expressed its displeasure at the manner in which the defendant herein sometimes conducts litigation.  (See for example Mlatsheni v Road Accident Fund 2009 (2) SA 401 (E) at para [14];  Bovungana v Road Accident Fund   2009 (4) SA 123 (E);  and Scheepers v Road Accident Fund (unreported judgment by Goosen J delivered on 12 September 2013 under case no. 1207/08).) The criticisms raised in these judgments find equal application in the present matter.

[37] In the current matter, however, the first meaningful pre-trial conference was held on the morning of trial.  Both parties are equally to blame for failing to utilise the procedure under rule 37 timeously and effectively so as to narrow the issues before the trial.  At the time that the material requests were put to the defendant the costs of the first day of trial had already been incurred and the trial was completed in a single day.  In these circumstances I do not think that a punitive costs order is justified, however, had the trial proceeded to a second and third day, or had the admissions been sought two or three weeks prior to trial  I may well have been inclined to make a punitive costs order against the defendant for the reasons set out earlier herein. 

[38] In the result, I make the following order:

1.         The defendant is to pay to the plaintiff the sum of R500 000,00 as a for general damages.

2.         The defendant is to pay to the plaintiff the sum of R239 305,00 in respect of past loss of earnings.

3.         The defendant is to pay to the plaintiff the amount of R878 985,00 for future loss of earnings.

4.         Payment of the amounts set out in paragraph 1, 2 and 3 above shall be made within fourteen (14) days from the date of this order directly to the plaintiff’s attorney of record, Struwig Hattingh Attorneys, trust account.

5.         Failing payment of the said amounts set out in paragraphs 1, 2 and 3 above the defendant is to pay interest on the aforesaid amounts at the rate of 9% per annum from a date fourteen (14) days after the date of this order to the date of payment.

6.         The defendant shall furnish to the plaintiff an undertaking in terms of the provisions of section 17(4)(a) of the Road Accident Fund Act, 56 of 1996, for 100% of the costs of future accommodation of the plaintiff in  a hospital or nursing home, or treatment of or rendering of a service to her or supplying of goods to her arising out of the injuries sustained by her in the collision on 29 December 2008, after such costs had been incurred and upon proof thereof.

7.         The defendant is ordered to pay the plaintiff’s costs of suit, such costs to include:

7.1       The costs of the reports and supplementary reports, if any, and the reasonable qualifying expenses, if any, of:

7.1.1   Dr M U Moeen

7.1.2   Dr V Oelofse

7.1.3   Dr C Rossouw

7.1.4   Ms A van Zyl

7.1.5   Dr S Munyaka

7.1.6   Munro Forensic Actuaries

7.2       The costs of one pre-trial inspection in loco attended by the plaintiff’s attorney of record, counsel and witnesses.

8.         The defendant is to pay interest on the plaintiff’s taxed or agreed costs of suit at a rate of 9% per annum from a date fourteen (14) days after allocatur or agreement to the date of payment.

J W EKSTEEN

JUDGE OF THE HIGH COURT

 

Appearances:

For Plaintiff:               Adv A Frost instructed by Struwig Hattingh Litigation Attorneys, Port Elizabeth

For Defendant:          Mr Milinganiso instructed by BLC Attorneys, Port Elizabeth

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