kameni v Road Accident Fund (881/06) [2008] ZAECHC 77 (9 June 2008)

IN THE HIGH COURT OF

SOUTH AFRICA

BISHO

CASE NO: 881/06

In the matter between:

KHANYISO KAMENI Plaintiff

and

ROAD ACCIDENT FUND Defendant

JUDGMENT

_____________

EBRAHIM J:

Introduction

The plaintiff instituted action against the defendant, pursuant to the provisions of the Road Accident Fund Act, 56 of 1996, (‘RAF Act’) for damages in the sum of R281 890,00 for bodily injuries the plaintiff sustained in a motor vehicle accident on 26 May 2002 at Mdantsane.

Merits and quantum

At the commencement of the trial Mr Dugmore, who appeared for the plaintiff, informed the Court that the merits of the plaintiff’s claim had been conceded by the defendant. Mr Ntsaluba, who appeared for the defendant, confirmed this was so and that an undertaking in terms of s 17(4)(a) of the RAF Act would be issued for the costs of future medical treatment for the plaintiff’s injuries and the attendant costs of accommodation and medication. He also confirmed that the plaintiff was now abandoning his claim for future loss of earnings in the sum of R18 000,00.

The sole issue for adjudication therefore was the quantum for general damages. In relation to the question of damages, it appeared from the defendant‘s plea that it disavowed knowledge of the injuries the plaintiff claimed to have sustained.

Plaintiff’s injuries

Dr P A Olivier, an orthopaedic surgeon, testified that he examined the plaintiff regarding injuries he sustained in an accident some forty-one months earlier. For the purpose of the examination he was provided with the clinical notes of the Cecelia Makiwane Hospital, the MMF 1 (sic) claim form the hospital had completed, and a letter dated 19 August 2002 addressed to the plaintiff’s attorneys by Dr K Watt, an orthopaedic surgeon, who examined the plaintiff on 20 June 2002 (on referral from Dr G M Peer) for an injury sustained three weeks previously.

The plaintiff, in his testimony, confirmed he consulted Dr G M Peer on 18 June 2002 (three weeks after the accident) as he was experiencing difficulty in lifting his left foot and was referred to Dr K Watt for further examination and treatment. Dr Watt, in a letter dated 21 June 2002, informed Dr Peer that his examination of the plaintiff revealed he had sustained a peroneal nerve palsy of the left leg but that there was no fracture.

Dr Olivier, who prepared a medico legal report1, which was tendered in evidence, amplified on his observations and findings. The plaintiff, he said, sustained a bumper fracture to his knee but this description was a misnomer as there was no fracture of the bone. What had actually occurred was that the plaintiff was injured when he was struck from the side by the bumper of a vehicle that caused ‘a blunt injury to the nerve and was responsible for paralysis to the muscles, which are supplied by the common peroneal nerve’,2 resulting in ‘a partial drop foot deformity on the left side’.3

Dr Olivier confirmed that the diagnosis of Dr Watt accorded with his own findings. Further, the plaintiff had complained of weakness in his left ankle, had difficulty in walking properly, was unable to walk fast, run, jump and squat and alleged that his condition had not improved since the motor vehicle accident.

According to Dr Olivier a period of eighteen (18) months was usually necessary to monitor whether there was any improvement. In the plaintiff’s case almost three (3) years had elapsed since the accident and there were signs of complete paralysis of the peroneal nerve. This was of a permanent nature and irreparable, hence the partial drop foot deformity. He examined the plaintiff again, shortly before testifying, and found there was still complete paralysis of the foot. The consequence of the plaintiff’s injury was that his left foot was stationary, or fixed, and as a result he had to lift his left foot higher than normal when walking in order to avoid stubbing his toes against any slightly raised areas he was traversing.

At the time of his initial examination Dr Olivier considered the plaintiff a suitable candidate for a tendon transfer procedure since he was relatively young. However, he now considered the benefits from this to be limited and no purpose would be served in the plaintiff undergoing such a procedure.

In cross examination, Mr Ntsaluba, who appeared for the defendant, did not contest the expertise of Dr Olivier as an orthopaedic surgeon who specialised in this type of injury. Questioned on the absence of any reference in the hospital records to a doctor having examined the plaintiff’s left foot on admission to hospital Dr Olivier, not surprisingly, was unable to comment on whether such an examination had taken place. The opinions and conclusions proffered by Dr Olivier are unchallenged as the defendant did not present any evidence to gainsay these.

Despite the absence in the hospital notes that the examining doctor had diagnosed an injury to the plaintiff’s left knee of the nature described by Dr Olivier there is sufficient other evidence to justify the conclusion that his knee was injured in such a manner in the accident.

The uncontroverted facts are that shortly after the accident the plaintiff consulted Dr G M Peer because of problems he was experiencing with his foot and was referred to Dr Watt for examination and treatment. The report of Dr Watt of the examination he conducted three weeks after the accident confirmed that the plaintiff ‘was knocked by a car and fortunately there is no fracture, but he sustained a peroneal nerve palsy of his left leg’.

Dr Olivier’s examination (albeit only on 18 October 2005) is further confirmation that the plaintiff sustained an injury to his knee that resulted in complete paralysis of the peroneal nerve and the partial drop foot deformity of his left foot.

The defendant has not been able to cast doubt on the correctness of the clinical findings or the conclusions of the orthopaedic specialists. To his credit, Mr Ntsaluba rightly conceded during argument that the plaintiff’s knee was injured in the

accident and there had been permanent damage to the peroneal nerve. He qualified this concession, however, with the contention that the plaintiff had exaggerated the extent of his disability and the drop foot deformity was not as severe as stated by Dr Olivier.

In my view Mr Ntsaluba’s cross examination of Dr Olivier did not expose any improbabilities in his diagnosis of the plaintiff’s injury or his opinion of the consequences of the drop foot deformity and his prognosis. The probabilities overwhelmingly support that the sequelae of the injury are as stated by Dr Olivier.

The defendant has not presented any evidence to gainsay the opinion of Dr Olivier, and I therefore accept, that ‘[t]here will be a permanent degree of weakness in the left lower leg and the left ankle [that] will prevent the [plaintiff] from participating in weight bearing activities such as jogging, hiking, participating in contact sport, jumping, etc. The [plaintiff] will however be able to dance and to be a community walker. He will also be able to perform his normal activities in and around the house,’ but ‘will walk with a limp for a significant part of his life due to the drop foot deformity and due to pain as a result of osteoarthritis’.4 The plaintiff would, however, ‘be able to perform his work as a technician’.5

The plaintiff confirmed that he was unable to squat, run, or walk at a fast pace, and said his ability to execute movements quickly with his left foot when driving a motor vehicle had been adversely affected. He was also unable to walk long distances without experiencing pain in his ankle and foot.

Quantum

In support of the claim for an amount of R200 000,00 for general damages Mr Dugmore cited the case of Coetzee v Union and National Insurance Co Ltd6 in which the Court (in April 1969) awarded the sum of R6 200,007 for general damages for pain and suffering, permanent disability and loss of enjoyment of life for injuries the plaintiff sustained to his ankle and shoulder and bruises of the hip and back.

A further case Mr Dugmore referred to was Peter v RAF (a judgment delivered on 18 August 2003 in Bisho Case No. 356/2002) in which the Court awarded an amount of R200 000,008 for general damages in respect of an injury to the hip which required an operation to replace the hip. Mr Dugmore asked the Court to bear in mind what was stated in RAF v Marunga9 read with the elucidatory comments in De Jongh v Du Pisanie NO.10

Mr Ntsaluba did not refer the Court to any decisions that could provide guidance in determining an appropriate award for general damages save to contend that the extent of the plaintiff’s permanent disability was less than what he had tried to establish.

The degree of pain he had to endure was also not fully supported by the evidence of Dr Olivier. Moreover, the plaintiff could walk, despite some abnormality and was able to drive a motor vehicle, albeit with a degree of difficulty. He submitted that an award between R120 000,00 and R150 000,00 for general damages would be adequate compensation.

In assessing the uncontroverted evidence it is clear that the injury has resulted in the plaintiff suffering from a permanent disability which inevitably diminishes his quality of life. Even though he is able to walk, it was apparent to the Court (during his demonstration) that he had to execute his walking movements in an abnormal manner. I cannot agree with Mr Ntsaluba that the plaintiff has exaggerated the pain he had to endure and continues to endure. There is no indication that he has not been truthful in this regard and I accept the opinion of Dr Olivier that the plaintiff will experience ‘a slight to moderate degree of pain and discomfort that will gradually become worse over a period of thirty years’11 and the ‘permanent degree of instability of his left ankle …… will lead to future degenerative changes’ that will require him ‘to undergo an arthrodesis of his left ankle after a period of ± thirty (30) years after the accident’.12 Fortunately for the plaintiff the injury will not prevent him from performing his work as a technician (which it appears he told Dr Olivier was his occupation) or, even for that matter, from assisting in the family tavern which, according to the particulars of claim, is how he was employed.

Conclusion

On the evidence before me the plaintiff’s injury cannot be said to be of the same severity as that sustained by the plaintiff in either the Coetzee or the Peter cases to which Mr Dugmore has referred. After considering all the factors relevant to the assessment of damages, and bearing in mind past awards, I am of the view that an amount of R180 000,00 would be fair and adequate compensation to the plaintiff for general damages.

In addition, the defendant is to furnish the plaintiff with an undertaking which indemnifies him against all future medical costs by issuing the requisite certificate pursuant to the provisions of s 17(4)(a) of Act No. 56 of 1996.

Mr Dugmore has submitted a draft order, which did not elicit any objection from Mr Ntsaluba, and the order being issued is framed in those terms with certain changes as the circumstances require.

Costs

It is trite that costs should follow the result unless there are cogent reasons why this should not be so. The plaintiff has

succeeded in proving his claim and is entitled to an order for costs in his favour.

Order

In the result, there is an order in the following terms:

(a) The Defendant shall pay the plaintiff the following:

(i) The sum of R180 000,00 which is to be paid into the Trust Account, No. 08011102940, of J A Yazbek & Co, for the benefit of the plaintiff, which account is held at Standard Bank, East London (Branch Code 05002100);

(ii) Interest on the said amount of R180 000,00 at the prevailing legal rate as from a date fourteen (14) days after date of this order to the date of payment;

The defendant shall issue an undertaking in favour of the plaintiff in terms of section 17(4)(a) of Act No. 56 of 1996 for the costs of future accommodation of the plaintiff in a hospital or nursing home or treatment of or rendering of a service to him or supplying of goods to him, arising from the injuries he sustained, after such costs have been incurred and upon proof thereof;

The Defendant shall pay the plaintiff’s costs of the action as between party and party, which costs are to include:

The qualifying expenses, if any, the costs of reports and the reasonable full day reservation fees, if any, of Dr P A Olivier and Dr T Rushton;

The costs of the reports and x-rays of East Coast Radiology;

The costs of an inspection in loco with counsel and the photographs taken thereat;

The plaintiff being a necessary witness.

(d) Interest on the costs of the action calculated at the prevailing legal rate of interest from the date fourteen (14) days after allocatur until the date of payment thereof.

_____

Y EBRAHIM

JUDGE OF THE HIGH COURT 9 June 2008

Counsel for the Applicant: A G Dugmore

Attorneys for the Applicant: Monaghan Attorneys

KING WILLIAM’S TOWN

Counsel for the Respondent: T M Ntsaluba

Attorneys for the Respondent: Mlonyeni & Lesele Inc

KAMENI v RAF.CVJ

1 Dated 18 October 2005

2 Ibid at p. 7

3 Ibid

4 Ibid at p. 12

5 Ibid at p. 13

6 Corbett and Buchanan Volume ll p. 55

7 Present day equivalent is R283 000,00

8 Present day equivalent is R231 000,00

9 [2003] 2 All SA 148 (SCA)

10 [2004] 2 All SA 565 (SCA)

11 Medico legal Report dated 18 October 2005 at p. 12

12 Ibid