The High Court has handed down its reasons for awarding about R26.6 million in damages to a woman who is now wheelchair-bound after her car hit a large pothole more than a decade ago.
In September last year, the High Court in Mahikeng ordered the province’s Department of Public Works, Roads and Transport to pay R26 691 626.40 to Mmabatho Beauty Mongale.
The court had previously determined that the department was 100% liable for the damages. The purpose of last year’s hearing was to determine the compensation to be awarded.
The department did not defend the claim. On the date of the hearing, only Mongale had filed reports from 15 experts and comprehensive heads of argument. The department filed neither expert reports nor heads. The only submission made on behalf of the department was that the reports were common cause and could not be disputed. Consequently, the court relied solely on Mongale’s submissions when determining the quantum.
City Press quoted the department’s acting director of communication, Mmakgori Tong, as saying the department received the claim in 2017. The department instructed the Office of the State Attorney in Mahikeng to challenge the matter. “Unfortunately, the State Attorney did not file any reports to support the department’s case,” Tong was quoted as saying.
She said the department has communicated its concerns on how the matter was handled to the State Attorney.
Mongale’s vehicle hit the huge pothole in Brits in North West in November 2014. She lost control of the car, and it overturned.
At the time of the accident, Mongale had been a professional nurse for about 25 years. Now, she is paralysed in the lower half of her body and will require ongoing medical care and assistance for the rest of her life.
Extensive medical treatment
At the request of the department, Judge Tebogo Djaje, the Deputy Judge President of the North West Division, earlier this year provided reasons for his order.
Mongale sustained a multitude of severe injuries as a result of the accident. These included a T3/T4 fracture with complete hemi-section of the spinal cord, resulting in paraplegia. She also suffered fractures and dislocations of the right and left hips, right shoulder, right ribs, left femur, right scapula, and right clavicle. Additionally, she experienced bilateral haemo-pneumothorax, a right kidney injury, and extensive scarring across her body.
Judge Djaje said Mongale is a paraplegic and wheelchair-bound. She uses a catheter, as well as nappies, and is completely dependent on her daughter for assistance.
The judgment outlined the extensive future treatments required by Mongale, including multiple surgical interventions.
Furthermore, medical experts reported cognitive and psychological impacts, including possible long-term memory impairment and “marked underlying depression of a mild to moderate extent”, Judge Djaje said.
Mongale was awarded R128 453.92 for past medical expenses and R19 520 267 for future medical expenses, after applying a 5% contingency deduction.
Loss of earnings
At the time of the accident, Mongale had a stable career, having progressed from a professional nurse to senior professional nurse and chief professional nurse at General de la Rey Hospital. Her qualifications included diplomas in nursing and midwifery, and specialisations in general psychiatric and community care, as well as a certificate in health assessment and treatment.
Mongale will not be able to return to work. An orthopaedic surgeon determined she had a whole impairment of 77%. An occupational therapist described her as having significant occupational dysfunction and being “a vulnerable employee who would not be able to compete in the competitive labour market”. Her condition is permanent, with no expected improvement in her physical capabilities.
In calculating the loss of earnings, the court considered Mongale’s earnings at the time of the accident, her career progression, and her intention to work until age 65. Contingencies were applied: 5% on past loss of earnings, 10% on pre-morbid future income, and 5% on post-morbid future income. The court found these contingencies fair and appropriate, given her age (just under 50 at the time of the accident) and promotion prospects.
The court awarded Mongale R4 242 905 for past and future loss of earnings.
For general damages, which compensate for pain, suffering, and loss of amenities of life, the court awarded R2.8m. This amount was determined by referencing past awards in similar cases.
In addition to the damages, the court ordered the department to pay Mongale’s legal costs, including the costs for senior and junior counsel, as well as “reasonable costs” for obtaining medico-legal and related reports from the experts.
