IN
THE HIGH COURT OP SWAZILAND
In
the matter between:
JOSE
FERREIRA RAMOS Plaintiff
and
SWAZILAND
ROYAL INSURANCE
CORPORATION
Defendant
CORAM
F. X. ROONEY
P.
COETSEE For Plaintiff
P.
FLYNN For Defendant
JUDGMENT
27/01/89
Rooney,_J.
The
plaintiff was injured in a motor accident on the Mbabane/ Manzini
Road on the 10th March, 1986.
The
other vehicle invlolved was insured against third party claims by the
defendant., In this action the plaintiff seeks to recover damages for
personal injuries and consequential loss arising out of the accident,
which it is alleged was caused by the negligence of the driver of the
motor vehicle insured by the defendant.
Originally
liability was denied, but, at a pre-trial conference held on the 10th
August last year the merits of the plaintiff's claim was conceded. It
was further admitted that as a result of the collision the plaintiff
suffered bodily injuries consisting of a severly comminuted closed
fracture of the left ankle which fracture will probably lead to the
development of an arthritic condition in the ankle necessitating an
arthrodesis operation to the ankle.
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The
following damages were agreed upon -
a)
E1,874-33 for past hospital expenses.
b)
E1,424-10 for past medical expenses
c)
E13,396-56 for loss of earnings
d)
E7,750- for future medical expenses
e)
E36,000- for future loss of earnings.
These
agreed amounts which total E60,444-99 must be included in the
judgmento The only issue remaining is the amount of the claim for
general damages for pain and suffering, loss of amenities of life and
disablement.. The amount claimed by the plaintiff on this head is
E30,000.
It
is not disputed that following the accident, the plaintiff bias
admitted to the Milpark Hospital, Johannesburg. The irttial treatment
consisted of an open reduction with internal fixation to his
fractured ankle. He was discharged from hospital after one week in a
plaster cast, and on crutches.
The
cast was removed 5 weeks later. Extensive physiotherapy followed. He
continued to use crutches for a further three weeks.
In
October, 1986 the plaintiff was examined by Mr Ian Dymond, an
orthopaedic surgeon. He found that the plaintiff was able to perform
his duties as an engineer with little limitation. He retained a
significant limp.
At
the time of his examination by Mr Dymond, the plaintiffa was
described as/fit young man of twenty six. The fractures had united
and the plaintiff had a functional ankle. The surgeon was of the
opinion that the condition of his ankle would . progressively
deteriorate as the years passed and that further
surgery
would be required, by way of debridgement of the joint and later,
with the onset of osteo-arthritis, he would require
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ankle
fusion. The plaintiff had suffered considerable pain in the past and
he was inconvenienced by the stiff ankle and occasional pain in the
joint.
The
plaintiff wag examined by another orthopaedic surgeon in December,
1987. Mr Ian Leitch found that the plaintiff still had a limp. He
described the condition of his ankle as good, but, not normal.
Mr
Leitch was of the opinion that some degree of poet-traumatic
degenerative osteo-arthritis must be expected to develop at some
future time. He suggested that the plaintiff will have to undergo
arthrodesis when he is about fifty years of age. Thereafter he will
be able to move about with a slight limp. There had been a
curtailment of the plaintiff's ability to participate in vigorous
running sports like soccer and squash.
It
has therefore been established that the plaintiff's injury was severe
and painfull, but, he has made a good recovery. At present the
residual disability consists of a stiff ankle joint which imports a
permanent slight limp. His sporting activities have been affected and
there is a reasonable prospect of a deterioration in his condition in
middle age which will require corrective surgery.
The
only remotely comparable case which has been decided in this Court is
that of Themba Mlotsa v. Swazi Roayl Insurance Corporation (Civil
case 643/87, unreported). The plaintiff suffered a broken leg, there
were feu indications of permanent disability and a definite prospect
of improvement in the plaintiff's condition. An award of E2,000 for
pain and
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suffering
was made by Dunn.J. on the 4th March, last year.
The
present plaintiff's condition is more serious as there is an actual
disability remaining and the prospect of further complications in
later life.
A
more serious case was M.C. Johnston v. Swaziland Royal Insurance
Corporation (Civ. case 436/05, unreported) in which Hannah CO.
awarded E30,000 to a plaintiff whose leg was amputated above the
knee. He lost his hearing in one ear and was disfigured.
There
is a reference to a very similar personal injury claim in Halsbury's
Abridgement 1985, paragraph 768 at P. 189. An engineer suffered a
fracture of his ankle. Although the injury had healed it was accepted
that there would be an increase in residual symptoms towards the end
of his working life and a risk of osteo-arthritis developing. In
Jaram v. Bruch Electrical Machines Ltd the Queen's Bench Division
awarded the plaintiff £5,000
on the 13th March, 1985.
That
award, made in sterling nearly four years ago, is at least a guide to
the damages which should be assessed in this case. While a court must
make an allowance for the depreciation in the value of money, it need
not follow any particular formula. (A.A. Onderlinge Assuransie
Assasiase BPK v. Sodame (1980) 3 S.A. 134 .
Fluctuatipn in currency exchange rates since 1985 need not be taken
into account. What matters is the relative purchasing power of a
particular currency on the domestic market.
I
am of the view that the appropriate amount which the
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plantiff
In this case should receive for general damages is E12.000.
Having
regard to the damages agreed, I enter judgment for plaintiff in the
sum of E72,444.99 together with costs, which costs should include the
engagement of counsel from outside Swaziland.
F.X.
ROONEY
JUDGE
