1. Fracture of pelvis
Muller v RAF 2008 JOL 21251 (SE)
Judgment Date: 30 / 10 / 2007
The plaintiff, who was born on 26 July 1981, was a passenger in a motor vehicle bearing registration numbers, CRY 884 EC when that vehicle collided with the insured vehicle (motor vehicle CHW 138 EC) in Uitenhage. He sustained a severe fracture of the pelvis with dislocation of the right hemi pelvis through the symphysis pubis and sacro-iliac joint. He also suffered an acute abdomen, a neck injury, bruises and abrasions on his head, an injury on the right lower leg and a contusion of the right knee.
He underwent a laparotomy on the same night of the accident at the Uitenhage Provincial Hospital. Two days thereafter, he was transferred to Cuyler Clinic in Uitenhage where an attempt was made to perform an open reduction on the fractured pelvis. A skeletal pin was inserted into the right lower limb to reduce and maintain reduction of the dislocated pelvis. On 19 February 2003, the plaintiff was transferred back to the Uitenhage Provincial Hospital where he remained for a further month.
Prior to his discharge from hospital the denham pin was removed from his right tibia and he was mobilised using crutches. There were no subsequent visits to the Uitenhage Provincial Hospital. Instead the plaintiff attended his own general practitioner, Dr R van Heerden on a monthly basis for analgesic tablets. His last visit was in May 2004. He remained on crutches for two months after discharge from hospital.
On 3 August 2004, the plaintiff consulted with Dr James Forgus, an orthopaedic surgeon. A medico-legal report prepared by Dr Forgus forms part of the record. Dr Forgus also gave evidence at the trial. According to Dr Forgus the injuries sustained by the plaintiff in the collision resulted in him being left with a permanent limp on the right side; the right leg is three centimetres shorter than the left leg. Muscle wasting of the right thigh has resulted in the right thigh measuring eight centimetres smaller than the left thigh. The right hip flexes 20 less than the left hip. The plaintiff squats incompletely due to stiffness of the right hip. He presents with extensive callus formation over the sacro- iliac joint.
According to Dr Forgus, the attempt that was made at Cuyler Clinic to reduce the dislocation in the pelvis was not successful. In his assessment the plaintiff would have been unfit to resume duties for four to six months after the collision. (In this regard the plaintiff testified that he resumed duties earlier than this period because he had no choice). Dr Forgus’ opinion was that the plaintiff should not play active sports, jog and carry heavy weights (more than 10kg) in future. One and a half years after the collision the plaintiff’s sacro-iliac joint and symphysis had not fused and resulted in instability of the joint. Heavy weight bearing activities and excessive bending might further destabilise the joint.
Dr Forgus’ opinion was that the shortening of the right leg should, as a matter of urgency, be permanently compensated by a raised shoe involving a heel and a sole. He anticipated that within a period of eight to ten years of the consultation the plaintiff would develop pain in the sacro-iliac region on the right side. This would necessitate a sacro-iliac joint fusion (arthrodesis). In the end the plaintiff was only suited to sheltered work of sedentary nature for the rest of his employable life.
Regarding pain and suffering Dr Forgus testified that the plaintiff would have experienced severe pain for three to four weeks after the collision whereafter the pain would diminish over the next three to four weeks. He would have, through this period, been totally incapacitated and would have experienced extreme discomfort as a result of a skeletal traction on his right leg.
A further medico-legal report prepared by Dr Basil Mackenzie, also an orthopaedic surgeon, also forms part of the record. The contents were admitted by both parties at a pre-trial conference. In essence the opinions expressed by both Dr Forgus and Dr Mackenzie are similar, particularly insofar as the effects of the injuries sustained by the plaintiff on his post-morbid income earning capacity. Dr Mackenzie, however was of the opinion that it will not be necessary to perform an arthrodesis on the plaintiff.
Dr Mackenzie’s opinion was that the plaintiff is physically “18% permanently partially impaired”. This reflects his compromised capacity to manage activities of daily moving, including sitting, standing, lifting, carrying and other activities. He further opined that although the plaintiff was 18% physically impaired, he could remain employable in his semi-skilled job description to the age of 50 years, whereafter his capacity to compensate for his impairments will diminish so that he will need to delegate all tasks involving heavy-weight bearing activities. In this way he could remain employable to about 57 years.
Dr Forgus assessed the extent of plaintiff’s partial permanent disability at 20%. Two further medico-legal reports prepared by him which form part of the record confirm the contents of his first report save that when the plaintiff consulted with him on a second occasion (18 July 2006) the stiffness on the right hip had improved.
A medico-legal report prepared by Dr Richard Holmes, a psychologist, is also part of the record. In the report Dr Holmes gives an opinion on the plaintiff’s future prospects of employment and/or income earning capacity. He also testified at the trial confirming the contents of his report. His view was that although the plaintiff was only 22 years old at the time of the accident, it can be reasonably assumed that, but for the accident or any other unforeseen circumstances, the plaintiff would have become a competitor in the open labour market as a semi-skilled worker (or work seeker), performing duties requiring extensive physical activity, including standing, walking, bending and driving. Pre-morbidly, he had the physical ability and the intellectual potential needed for such work. Assuming that he would have remained a committed worker, (and there being no reason to believe that this would not have been the case), he would have remained in employment until he reached retirement age. However, given his relatively poor standard of education and no special skills, his employment opportunities would always have been limited.
The defendant has made an open offer of R180 000 for general damages suffered by the plaintiff. The plaintiff sues for a sum of R250 000. Both parties rely on previously decided cases in support of the amounts claimed and offered. The plaintiff relies on awards made in the following cases:minor injuries. He spent five months in hospital, and his schooling was interrupted. The injury resulted in a leg length discrepancy of about 1Â½cm, which could be corrected by surgery. An amount of R175 000 was awarded as general damages. (The present day value thereof according to Koch (supra) being R243 000).
The defendant, on the other hand relies on the following cases:
value (as per the Quantum Yearbook, 2007; RJ Koch) of R184 000.
President Versekerinqsmaatskappy v Mathews in which the plaintiff, a farmer, aged 53 at the time, sustained a fracture of his left hip, a serious fracture of his hemi pelvis injuries to his eye and certain internal injuries. There was a shortening of his left leg of about 3cm and further rheumatism in the hip joint was indicated. It was anticipated that hip replacement surgery would be required. He was awarded a current value (as per the Quantum Yearbook, 2007) in the amount of R88 000.
Hartzenberg v SA Eagle Insurance, (supra) at Volume 4 F 3â€“7 in which a girl, aged eight years at the time, sustained a fracture of her pelvis and hip. As a result surgery in the form of an open reduction and internal fixation was undertaken as well as traction for a period of about three weeks. She was in a hospital for six weeks and thereafter required to ambulate with crutches for about ten months. As a result, she sustained severe pain as well as disfigurement and her working life was expected to be curtailed. Further, it was indicated that hip replacement surgery was required. She was awarded a current value (calculated as per the Quantum Yearbook, 2007) of R235 000.
I agree with the submission on behalf of the plaintiff that although the plaintiff in this case received less treatment and will endure less medical operations than the plaintiff in the Peter and Marunga cases, he is more incapacitated as a result of the permanent 3cm leg length discrepancy. On the other hand, the plaintiffs in the Hendricks and Hartzenberg cases appear to have sustained more serious injuries than the plaintiff in this case. In Hartzenberg’s case the plaintiff was much younger than the plaintiff in this case. In my view the appropriate award for general damages in this case would be R200 000.
In the result it is ordered that:
The defendant shall pay the plaintiff’s:
1.1 Past hospital – R16 226,49;
1.2 Past loss of income – R12 011,60;
1.3 Future loss of earnings or loss of earning capacity – R626 252,91;
1.4 General damages – R200 000;
Total – R854 491
Interest is to accrue on the said amount of R854 491 as from a date 14 days from date hereof until date of payment;
Defendant is to furnish plaintiff with an undertaking in terms of section 17(4) of the Road Accident Fund Act 56 of 1996, for the cost of future accommodation of plaintiff in a hospital or nursing home or treatment of or rendering of a service or supplying of goods to him arising out of the collision in which he was involved on 2 February 2003 after the costs have been incurred and upon proof thereof.