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IN THE HIGH COURT OF SOUTH AFRICA

[TRANSVAAL PROVINCIAL DIVISION]

Date: 16/05/2008

Case No: 10695/05

UNREPORTABLE

In the matter between:

PAULINE MARIA MALATJI PLAINTIFF

And

ROAD ACCIDENT FUND DEFENDANT

JUDGMENT

Plaintiff is bringing an action against the Road Accident Fund in terms of the Road Accident Fund Act 56 of 1996 as amended for personal damages sustained as a result of a motor vehicle accident on the 1^st July 2004.

Plaintiff a forty year old woman was a passenger on the back of a bakkie when another vehicle collided with her bakkie from behind. She was flung from the bakkie, sustained serious bodily injuries and taken to Letaba Hospital for medical treatment which lasted approximately two weeks.

In terms of agreement between the parties merits in the action are conceded 100% by Defendant. The parties further agreed that:­

- Defendant shall provide Plaintiff with a certificate in terms of Section 17(4) (a) of Act 56 of 1996 for medical expenses incurred and to be incurred in respect of injuries sustained by Plaintiff as a result of this motor vehicle accident that occurred on the 31^st July 2004;

- Defendant shall pay Plaintiff past and future loss of income in the amount of R 81 886.00.

Therefore the Court is only asked by the parties to determine the amount of general damages suffered by Plaintiff in this accident.

Finally the parties agreed that the expert reports of Dr L.A Ledwaba an Orthopaedic Surgeon from Polokwane;

Drs P.P. van Zyl and J van der Merwe - diagnostic Radiologists from Polokwane, and P. C Diedericks ­Industrial Psychologist from Lyttelton shall be accepted without any further evidence and are the bases for determination of the Plaintiff's general damages.

According to medico legal reports completed by Dr L.A Ledwaba an Orthopaedic Surgeon from Polokwane, P.C Diedericks, Industrial Psychologist from Lyttlelton, the Plaintiff was a passenger at the back of a bakkie when another vehicle knocked her bakkie from the back. Plaintiff was flung from the back of the bakkie, sustained injuries and was admitted at Letaba Hospital for treatment that lasted approximately two weeks.

According to the expert reports Plaintiff injuries include fracture of the distal left radius, right distal tibia fracture, left wrist fracture and soft tissue injury on both knee joints.

Treatment received at hospital includes application of a full plaster of paris cast to her right leg and left distal radius below the elbow. She was discharged from hospital two weeks later with plaster of paris cast and using crutches until five months later in December 2004 when plasters of paris cast were removed.

Dr L.A Ledwaba mentions in his report that on examination of Plaintiff he found inter alia the following problems:­-

- She does walk in an antalgic limb gait;

- She has a deformity at the right ankle joint with hind foot in inversion. She has short right leg 2cm compared to the left leg;

- The ankle is in equanus position stiff and painful on movement. Subtaloid joint is also stiff, and

- Distal radius malunion with volar angulation deformity.

Dr Ledwaba's diagnosis is as follows:­

- Plafond fracture distal tibia that has malunited. The ankle joint is involved and it is developing osteoarthritis. The distal forearm fracture has malunited and need correction.

- Poor prognosis is anticipated for distal tibia fracture. She is going to develop even worse pain as the osteoarthritis get worse. The forearm fracture malunion will remain unchanged unless surgically treated.

- He recommends surgical treatment for the distal radius in the form of osteotomy with removal of the implants a year after the initial procedure, followed by physiotherapy. After this procedure he is of the opinion that she will have near normal function of the wrist joint. For the tibial malunion he recommends correction of the deformity with an above ankle joint osteotomy. As an alternative he indicates that an ankle fusion can be considered, if the management of her condition is delayed. He also indicates that an athroplasty ankle joint can be considered only if osteotomy doe not relieve pain.

- Regarding work ability he indicates that she is permanently disabled to work as a labourer where she has to stand for long. He also indicates that she has to work in a sitting position for 80% of the time. Furthermore he mentions that she will need to retire five years earlier if she undergoes the above treatment. If she does not undergo the above treatment she will have to remain unemployed.

P. C Diedericks the Industrial Psychologist also examined and evaluated Plaintiff found inter alia that:­

- Plaintiffs cognitive and personality functioning were not restricted due to the accident;

- Her physical functioning was however radically impaired as a result of the injuries, with a risk of losing her current employment at some stage due to worsening of osteoarthritis and resultant increase in pain.

- She has not been rendered completely unemployable, but alternative opportunities to earn income are very limited due to her narrow and limited experience and her fairly low qualification of completing only standard nine without any further formal training and the fact that she will have to compete for work opportunities with other able-bodied individuals in the open job market.

- Long periods of unemployment can therefore be foreseen.

The extent of injuries sustained by Plaintiff and the effect of the injuries on Plaintiff are common cause between the parties and the Court is only requested to determine general damages sustained by Plaintiff in the light of these injuries and their effect on Plaintiff.

Counsel for the Plaintiff Mr Botha argues that Plaintiff is entitled to general damages of R 250 000.00 and highlights the following findings from medico legal reports submitted and state that:­

- Plaintiff was admitted to the Letaba Hospital and had a full plaster of paris applied to her right leg and on her left distal radius below the elbow and used crutches for a period of six months;

- At the time of removal of the plaster of paris wrist joint became more painful and the right ankle joint was deformed;

- Plaintiff right leg is two (2) centimetres shorter than her left leg;

- The right ankle joint remains stiff and painful on movement and is developing osteoarthritis;

- There is a malunion of the left writs with Bower Angulation deformity;

- The malunion of the ankle and the wrist will both need further medical treatment for corrections;

- Poor prognosis is anticipated for the distal tibia fracture and the pain will become worse as the osteo­ arthritis gets worse;

- Plaintiff should expect to experience moderate pain on the ankle joints for the rest of her life;

- The mal-united distal radius will need future medical treatment of an osteotomy which includes a bone graft;

- There should be further provision for osteotomy of the distal radius;

- Further provision should also have to be made for follow-up medical procedure to remove implants and physiotherapy of the wrist and the tibia;

- The operations on the arm and the foot have to be performed separately.

Counsel for the Plaintiff Mr Botha further argued that the nature of injuries sustained by Plaintiff were similar to those dealt with in an appeal case of RAF v Marunga 2003 (5) SALR. It was however conceded by Plaintiffs counsel that in Marunga case the injured was much younger – aged 19 years old and participating in sport as against Plaintiff aged forty years old who according to the Industrial Psychologist report by P.C Diedericks did not participate in any sport.

In response counsel for the Defendant Mr Seima initially raised some doubts about causal connection between injuries sustained by Plaintiff and the motor vehicle accident of the 1^st July 2004 in particular whether some of the injuries were pre existing or not. There was a further doubt raised by Mr Seima on behalf of Defendant about the contradictions between Radiologists report by Drs P.P van Zyl and J van der Merwe and report by Dr L.A Ledwaba which created doubt about whether the injuries were pre­ existent and whether there was a bone union or not.

The court pointed to Mr Seima the implication of these submissions in the light of agreement submitted by the parties of the beginning of trial in the matter and Mr Seima decided not to pursue these submissions any further and instead argued that appropriate general damages to adequately compensate Plaintiff's injuries were R 120 000.00.

Mr Seima argued that circumstances from the Marunga case are distinguishable from the case at hand because in Marunga case the injured was more than half the age of the Plaintiff and was an active sports participant. Mr Seima referred the court to Arbitration Case in the matter of Fielies v Road Accident Fund 1999 C & D 5 (4) (AFC) as appropriate authority to determine general damages sustained by Plaintiff.

Summary of injuries and after effects of the injuries in Fielies case above includes:­

- Compound fractures of the left tibia and fibula; - Immediate operation to insert pin;

- Plaintiff discharged from hospital one week after accident but readmitted for bone grafting and discharged 10 days later, with plaster of paris worn for six months and on crutches;

- Some wasting of quadriceps muscle, swelling of foot and pain during cold weather, and absence from work for 11 months and;

- however ultimately recovering completely with no permanent disability.

The Court finds that the Plaintiff's injuries are distinguishable from injuries in the Fielies case in the following respects:­

- That Plaintiff suffered injuries to both the hand and the foot;

- There is malunion of both the wrist and ankle with no guaranteed success of the correction medical procedure;

- Permanent deformity in the form of plaintiff right leg being two centimetres shorter than the left leg; and

- Pain for the rest of her life.

The Court accepts that Plaintiff's injuries and effects thereof are more in par with injuries sustained in Marunga case but the Court has to take into account the youth and active participation of the injured in Marunga while not ignoring that Plaintiff's poor of education places her in extremely difficult position to deal with her permanent impairments.

Taking into account all factors referred to above the Court is of the opinion and orders that general damages of R 200 000.00 should be awarded to Plaintiff and by agreement between the parties Court proceeds to order that past and future loss of income of R 81 886.00 be paid to Plaintiffs by Defendant. The Defendant is ordered to furnish to the Plaintiff a certificate of undertaking in terms of Section 17 (4) (a) of the Road Accident Fund Act, 56 of 1996, for the costs of the future accommodation of the Plaintiff in a hospital or nursing home or treatment of or rendering of a service to the Plaintiff arising out of the injuries sustained by the Plaintiff in a motor vehicle accident on the 31^st July 2004 after such costs have been incurred and upon proof thereof. The Defendant is also ordered to pay the Plaintiff's costs of suit which include the costs of Senior-Junior Counsel, costs of all experts reports, reasonable preparation and reservation fees of the experts witnesses duly notified in terms of rules of Court.

T PHALANE

ACTING JUDGE OF THE HIGH COURT

IN THE HIGH COURT OF SOUTH AFRICA

[TRANSVAAL PROVINCIAL DIVISION]

Case No: 10695/05

In the matter between:

PAULINE MARIA MALATJI PLAINTIFF

And

ROAD ACCIDENT FUND DEFENDANT

COURT ORDER

Having heard counsel for the Plaintiff and Defendant, and having read the documents filed of record, Court orders as follows: -

1. The Defendant is ordered to pay the Plaintiff an amount of R281 886.00 in delictual damages;

2. The Defendant is ordered to furnish to the Plaintiff a certificate of undertaking in terms of Section 17 (4) (a) of the Road Accident Fund Act, 56 of 1996, for the costs of the future accommodation of the Plaintiff in a hospital or nursing home or treatment of or rendering of a service to the Plaintiff arising out of the injuries sustained by the Plaintiff in a motor vehicle accident on the 31^st July 2004 after such costs have been incurred and upon proof thereof;

3. The Defendant is also ordered to pay the Plaintiffs costs of suit which include the costs of Senior-Junior Counsel, costs of all experts reports, reasonable preparation and reservation fees of the experts witnesses duly notified in terms of rules of Court.

By Order of the Court

Registrar of the High Court

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