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[2010] ZAWCHC 588
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Sobahle v Pietersen and Another (11223/05) [2010] ZAWCHC 588 (30 November 2010)
Republic
of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NO: 11223/05
In
the matter between:
SIVUYILE
SOBAHLE
….................................................................................
Plaintiff
and
WILLIAM
PIETERSEN
…...................................................................
First
Defendant
THE
MINISTER OF SAFETY AND
SECURITY
…................................................................................
Second
Defendant
JUDGMENT
DELIVERED ON 30 NOVEMBER 2010
GOLIATH.
J
:
[1]
On 4 November 2004 at or near Pearly Beach, Gansbaai, the first
defendant, a member of the South African Police Services, wrongfully,
unlawfully and intentionally assaulted the plaintiff by shooting him
in his left leg with a shotgun. He sustained a serious injury
which
resulted in a through knee amputation of the left leg. Plaintiff
instituted a claim against defendants for damages incurred
as a
result of the injury sustained by him in the incident, and the
sequelae
thereof.
The second defendant conceded liability for plaintiffs damages and
the trial proceeded on the question of the quantum of
damages only.
[2]
The issue of quantum specifically centered on general damages, past
and future loss of earnings and future hospital and related
costs.
The anticipated prosthetic requirements for plaintiff encompassed the
biggest component of the claim. Various experts were
called to
testify on behalf of both parties. Jan Brand (orthotist), Dr P A
Olivier (orthopaedic surgeon), Marion Fourie (occupational
therapist), Elsa Wakefield (physiotherapist), Dr Johan Lourens
(industrial psychologist), Alexander Munro (actuary), Eduardo Nunes
(architect), Gilliam Koen (quantity surveyor), Nelphas Jonas
(builder), Anthony David Twine, Nozicelo Sobahle and plaintiff
testified
on behalf of plaintiff. On the other hand William
Pietersen, Marq Labuschagne (physiotherapist), Malcolm Freedman
(orthotist) Hannes
Swart (industrial psychologist) and Dr Richard
Marks (orthopaedic surgeon) testified on behalf of defendant.
[3]
Plaintiff was 24 years old at the time of the incident. The injury
involved the femoral neck and midshaft of the femur, with
an
associated serious vascular injury. Although the femoral fracture was
fixated with an intramedullary nail, and a vascular reconstructive
procedure performed, the left lower leg could not be salvaged and had
to be amputated through the knee on 7 November 2004. The
post
operative period was complicated by the fact that plaintiff developed
infection of the stump. This condition necessitated
a clean-up
operation known as a debridement procedure, which was performed on 20
November 2004.
[4]
From the date of the incident plaintiff spent many months in hospital
and had to undergo numerous operations. As an in-patient,
plaintiff
spent approximately three months in hospital. Following his discharge
plaintiff attended follow-up visits to the hospital
as well as the
clinic for wound care treatment. He experienced a severe degree of
pain and discomfort and had to endure a septic
wound ever since the
injury in 2004. A moderate degree of pain and discomfort is expected
for a period of 12 weeks following stump-related
procedures in
future. The fitting of a prosthesis may also cause discomfort should
complications arise. Considerable improvement
is expected once
treatment is complete and he has been fitted with a prosthesis.
However, it is likely that his physical capacity
and mobility will
always be restricted in certain respects. Plaintiff is currently
mobilizing with crutches which he finds challenging.
Plaintiff will
have to adjust to his new life as an amputee.
[5]
Adv
Botha,
who
appeared for plaintiff, submitted that an award of R500 000 for
general damages would be suitable, while Adv
Van
der Schyff,
who
appeared for defendant, submitted that R350 000 was more appropriate.
The search for comparable cases in order to make a proper
award for
general damages for pain, suffering and loss of amenities of life
only leads to broad parameters within which an award
may be made.
Reference was made by counsel in argument to various cases
inter
alia
Pitt
v Economic Insurance Co Ltd,
1957
(3) SA 284
(D),
Road
Accident Fund v Marunga,
2003
(5) SA 164
(SCA),
Van
Deventer v Premier of Gauteng,
2004
[Corbett & Buchanan: Quantum of Damages Vol 5] E2-1 (TPD),
Galant
v Road Accident Fund
2004
[Corbett & Buchanan: Quantum of damages Vol 5] E2-29 (Arbitration
Forum),
De
Jongh v Du Pisanie NO,
2005
(5) SA 457
(A) and
Bovungana
v Road Accident Fund,
2009
(4) SA 123
(E). The search for comparable cases in order to make a
proper award for general damages for pain, suffering and loss of
amenities
of life only leads to broad parameters within which an
award may be made. In arriving at an award which I consider to be
fair and
just I have had regard more particularly to the matters of
Van
Deventer v Premier of Gauteng
(supra)
and
Galant
v Road Accident Fund
(supra)
which,
in my view, is reasonably comparable to the present case. Having
considered the relevant awards, in my judgment an award
of R400 000
00 for general damages is appropriate in the present matter.
[6]
During follow-up visits it was noted that plaintiff still had a
septic wound and the fracture did not heal. Dr Olivier established
that chronic osteitis (bone infection) was present on the left stump.
The experts agree that plaintiff will require future surgical
intervention and treatment in respect of the osteitis which the
parties are
ad
idem
should
amount to R129 000. Consequently the plaintiff is entitled to the
agreed amount of R129 000.
[7]
Dr Olivier testified that it is probable that plaintiff will develop
stump-related complications and that it is anticipated
that plaintiff
will probably in future require three stump-revision procedures at
ages 30, 40 and 50 respectively at a cost of
R33 000 per revision in
2009 terms. Dr Olivier referred to the development of pressure sores
and neuromas which are the most common
long term complications which
necessitates stump-revisions. Dr Marks disagreed with this assessment
and expressed the opinion that
the initial amputation was a surgical
success and that the correct soft tissue bone balance had been
achieved. Thus he testified,
the stump healed well and the absence of
any complaints reduces the need for a stump-revision. Dr Marks
rejected the possibility
of a late neuroma on the grounds that
plaintiff did not report a neuroma-related pain and that a neuroma
never develops if the
amputation procedure was successful, especially
five years after the said amputation. I accept the evidence of both
experts in
this regard. However, due to the fact that a stump is
dynamic and not static, I am satisfied that provision should be made
for
at least two stump-revision procedures at a cost of R33 000 per
revision, subject to a contingency deduction of 10% (ten per cent).
[8]
Dr Olivier expressed the view that due to a combination of osteopenia
that is already present in the left femure and plaintiffs
inability
to negotiate uneven surfaces without risk, it is foreseen that he
will fall in future and sustain fractions. He anticipates
that
plaintiff will probably sustain two fractures in future, at the age
of 50 and 60. Dr Marks disagrees and sees no reason for
plaintiff to
develop osteopenia since the stump is weight-bearing and hence loss
of gravity is not an issue. Dr Olivier conceded
that it is possible
that an amputee would not necessarily suffer a consequential fall,
thus obviating any fractures. There is no
concrete evidence to
support the notion that falls, coupled with fractures, are inevitable
consequences of those wearing a prosthesis.
I am of the view that
with proper training in the use of a prosthesis, plaintiff will be
able to ambulate with minimal risk of
sustaining a fracture.
[9]
Both Dr Olivier and Dr Marks anticipate the need to provide for
future consultations with an orthopaedic surgeon, but disagreed
on
the frequency of the visits. Plaintiff's counsel conceded that it
would be fair to both parties to allow for a frequency of
two visits
at a cost of R660 per consultation, per annum. I am in agreement with
his concession. The normal 10% (ten per cent)
contingency deduction
should be applied.
[10]
Similiarly, the need for future medication especially
anti-inflammatories and analgesics is not seriously disputed by Dr
Marks.
However, Dr Marks is of the view that plaintiffs hip condition
would require future medication, hence a reduced need for
anti-inflammatories
and analgesics should provision be made for a hip
replacement. Due to plaintiffs limited evidence on this aspect, I am
satisfied
that provision should be made to provide plaintiff with two
months' medication per annum for life as conceded by defendant in the
amount of R35 131. Defendant also conceded an anticipated
arthroplasty on the basis that a 50% contingency deduction be applied
in order to accommodate the 50% probability of such procedure. The
amount of R100 000 is accordingly allowed, with a 50% per cent
deduction for contingencies.
[11]
The issue surrounding the need for a wheelchair is clearly resolved
by Dr Olivier's evidence. He testified that he envisages
that
plaintiff will be a community walker until about the age of 60, when
the need for a wheelchair would be most likely. This
opinion is
confirmed by Mr Labuschagne who testified that the wheelchair would
only be required post operatively and then again
at the age of 60. In
my view it is therefore reasonable for the plaintiff to be provided
with two wheelchairs, the first one post-operatively,
and the second
one as of the age of 60, with the latter including compensation for
the servicing for a period of three years in
the sum of R37 946 as
conceded by defendant. Consequently, I propose to award this amount
in full. The experts are in agreement
with the need for elbow
crutches and crutch ferrules and it is accordingly allowed as claimed
by plaintiff. The need for shower
and grab rails were not contested
and these items are allowed subject to the normal 10% (ten per cent)
contingency deduction.
[12]
The need for a lumbro-sacral corset is based on the assumption that
plaintiff would suffer future mechanical back ache if the
patient is
going to walk with a limp. Dr Olivier testified that plaintiff may
require a corset intermittently in future, but is
unable to predict
when it will be required. Dr Marks, on the other hand, is of the view
that the absence of a fixed flexion deformity
and in view of the fact
that the prosthesis will be made to size, there is no basis for
concluding that the plaintiff would suffer
future mechanical back
ache. I am not persuaded that a corset at a frequency of one per
annum is reasonable in the circumstances.
Due to the uncertain nature
of this complication I am prepared to make provision for such an
eventuality in the form of six corsets
at the rate of R1 500 each.
This award is subject to a contingency deduction of 10% (ten per
cent).
[13]
Plaintiff did not testify about the existence of phantom pains as
confirmed by Mr Botha and Dr Marks. No evidence was presented
of the
probability that phantom pains will return and Dr Olivier conceded
that it is possible that this problem has been resolved.
The claim
for lyrica is accordingly disallowed.
[14]
With regard to anticipated domestic assistance, housing requirements
and household maintenance, I am in agreement with defendant's
submissions in this regard. The main purpose of a claim for damages
is not to enrich a claimant at the expense of the State. Plaintiff
was not a property owner prior to the incident and failed to lay a
basis in fact and/or in law for this claim.
[15]
Furthermore Dr Coetzee, a bilateral amputee fitted with a hydraulic
knee, is testimony to the fact that despite his disabilities,
he is
conducting a meaningful family life and continued to practice as a
medical doctor. The evidence is overwhelming that plaintiff
would be
able to attend to his basic domestic chores once fitted with a
prosthesis. The evidence clearly established by both orthopaedic
surgeons as well as the prosthetist, is of the view that the
plaintiff would recover sufficient functionality once fitted with
a
prosthesis. The claims for anticipated domestic assistance, household
maintenance and housing requirements are disallowed.
[16]
The prosthetic requirements encompasses the biggest component of
plaintiffs claim. Plaintiff initially claimed compensation
for a
Total Multi-axis Polycentre Hydraulic Knee Joint, also referred to as
a "Total Knee'. Plaintiff relied on a report filed
by Mr Brand
which contained the benefits of this type of knee which is safe and
exceptionally widely used. Defendant's prosthesist
agreed with the
initial report and concluded that the Total Knee was well suited for
plaintiff. Mr Brand subsequently reconsidered
his report and
completely rejected the Total Knee in favour of the MPC Plie Knee
which is 600% more expensive than the Total Knee.
It is evident that
the Plie Knee is a new generation advanced knee which has not been
well researched to date.
[17]
Having analysed the evidence of the experts and Dr Coetzee, who
himself is using a hydraulic knee, I could find no compelling
reason
why the Total Knee would not be appropriate for the plaintiff. Dr
Coetzee is able to conduct a meaningful life with this
knee. The
evidence is clearly that many amputees live active lives with this
type of prosthesis. A Plie Knee could perhaps improve
the quality of
an amputee's life marginally, but not to the extent that it justifies
such an expensive knee in this particular
case. The plaintiff lives a
relatively simple life, does not partake in any strenuous sporting
activities and is not engaging in
any form of employment. I am
satisfied that the Total Knee will be appropriate to restore
plaintiff's physical condition to a functional
level which will allow
him to live a meaningful life. It is safe, robust, allows walking,
has shock absorbable qualities, allows
for higher activity and is
exceptionally widely used. I agree with defendant that fair
compensation for the entire Total Knee in
the amount of R2 898 235 is
appropriate. I therefore propose to award this amount in full.
[18]
The parties are in agreement that the plaintiff will require 40
intensive rehabilitative sessions pre- and post-prosthetic
fitment at
a cost of R375 per session. An amount of R14 673 is accordingly
allowed, subject to a contingency deduction of 25% as
suggested by
plaintiff.
[19]
The parties are not in agreement with the need for life long
physiotherapy. Dr Olivier testified that plaintiff will in future
benefit from physiotherapy because of any future complications which
may arise. Both Dr Olivier and Dr Marks are in agreement that
provision should be made for physiotherapy requirements, although Dr
Marks is optimistic that physiotherapy will not be required
other
than post-operatively. With numerous possibilities of secondary
complications, fractures, back pain and stump-revisions,
I am in
agreement that provision should be made for physiotherapy at the rate
of R3 500 per annum with a 30% contingency factor.
I am not convinced
of the need for lifelong physiotherapy as proposed by Dr Olivier.
[20]
In the circumstances plaintiff will incur transport costs which are
not disputed by defendant. I am of the view that it is
fair and just
if plaintiff is compensated for all transport costs incurred
attendant upon the following, as claimed by plaintiff:
-
the prosthetist
-
consultations with orthopeadic surgeon
-
40 pre- and post-prosthetic rehabilitation physiotherapy sessions
-
costs attendant upon attending hospital for treatment for osteitis
-
travelling to Hermanus for an arthoplasty to his hip
-
travelling to Hermanus for two stump-revision procedure
-
one trip per year for maintenance of the prosthesis
-
three trips for a refit of prosthesis during the first five years and
one trip
every
three years thereafter starting at age 37
-
return trip to Gansbaai once a year in order to purchase
antiinflammatories and analgesics
[21]
The plaintiff has claimed an amount of R133 463 and R847 450 in
respect of past income and future loss of earning capacity,
respectively. At the time of the incident the plaintiff was a healthy
24 year old male. He is unmarried and has no dependants.
He grew up
in the Eastern Cape and completed grade 6 at school. He briefly
worked as a labourer and thereafter as a taxi conductor.
He then
moved to his brother in Pearly Beach and was employed as a casual
worker in the informal building sector. At the time of
the incident
he earned R70
(seventy
rand) per day. Evidence was led regarding conflicting employment
history details given to Mr Swart. Mr Jonas was called
to clarify
plaintiffs employment record, but it proved difficult due to lack of
record keeping in the informal employment sector.
Mr Lourens' report
states that plaintiff worked for Jonas in 2002 at the rate of R50 per
day. There is a paucity of details regarding
the exact time plaintiff
worked for Jonas and the frequency thereof. It is therefore agreed
between the parties that plaintiff
was gainfully employed in the
informal building sector. However, the main issue in dispute remained
the frequency.
[22]
In his first report Mr Lourens failed to obtain any collateral
evidence in support of plaintiffs alleged advices to him.
Unfortunately
the subsequent clarifying report is lacking in
sufficient detail to conclude that plaintiff worked for Jonas during
2002, 2003
and 2004. I am therefore not persuaded that plaintiff
worked an estimated seven to eight months per year on average as a
casual
labourer.
[23]
Defendant avers that future loss of income should be calculated on
the assumption that plaintiff was legally employed for a
total of
three months per annum at the rate of approximately R50 per day. I am
not persuaded that this calculation would be fair
and just. I will
accept that plaintiff was earning R70 per day, for a total of three
months per year.
[24]
With regard to plaintiffs post-morbid scenario, it is clear that
plaintiff has no residual earning capacity. I am in agreement
with
defendant's view that a reasonable assumption would be that plaintiff
would have been gainfully employed as a casual labourer
for a least
three months per year. With regard to the earning capacity it is
common cause that the rate of R100 per day in 2009
terms is the norm.
I am satisfied that the usual contingencies of 5% (five per cent) to
past and 15% (fifteen per cent) to future
income should be applied.
It is important to bear in mind that the basis for a damages claim is
"likely earnings" not
optimal potential earnings as are
usually given by industrial psychologists (see
Koch:
The
Quantum Year Book VZR 2009 at 104).
[25]
Defendant opposed plaintiffs request that the costs of two counsel be
allowed. The nature of the issues, the serious injury,
inputs by
various experts called by plaintiff and the preparation of the case
justifies in my view, the exercise of my discretion
in permitting the
costs of two counsel.
In
the result the following order is granted:
The
defendant is to pay the plaintiff the following amounts:
1.
Second defendant shall pay to plaintiff the sum of R400 000 (four
hundred thousand rand) in respect of general damages.
2.
Costs of prosthesis R2 898 235 (two million eight hundred and ninety
eight thousand two hundred and thirty five rand).
3.
The quantum of other future medical and related expenses shall be
computed by an actuary based on the findings reflected in this
judgment, subject to an agreed net discount rate of 1.5% (one and a
half per cent).
4.
The quantum of plaintiffs past and future loss of earnings/earning
capacity shall be actuarially calculated based on the following
assumptions:
4.1.
Past loss of income:- From date of injury to date of judgment,
plaintiff would have continued to work as a casual labourer
for an
average of three months per year earning an income of R70 (seventy
rand) per day.
4.2.
Future loss of income: Plaintiff would have earned an income
calculated at R100 (one hundred rand) per day for three months
of the
year, calculated up to the age of 60.
5.
Second defendant is directed to pay to plaintiff interest on the
actuarial calculated past loss of earnings as from the date
of
service of the summons on second defendant to date of payment.
6.
The amount already paid by defendant in terms of a previous Court
Order should be deducted from the total amount due and the
balance
should be paid within 60 (sixty) days of date hereof and in the event
of such payment not being made timeously, defendant
shall be liable
to plaintiff for the payment of interest on the balance at the rate
of 15.5% (fifteen and a half per cent) per
annum from the day after
the expiration of 60 (sixty) days hereof to the date of payment.
7.
Second defendant shall pay plaintiff's taxed costs in the action on
the party and party scale which costs shall include but not
be
limited to:
7.1.
Costs of proceedings of 17 March 2010.
7.2.
The qualifying expenses of all expert witnesses in respect of whom
plaintiff filed reports of summaries of evidence to be led
at the
trial.
7.3.
The costs of obtaining a running record.
7.4.
The costs consequent upon the employment of two counsel.
8.
Payment
of the costs referred to in paragraph 7 shall be effected within
14
(fourteen) days of the date of the Taxing Master's allocator or
of settlement of plaintiffs party and party bill of costs.
8.1.
Should the costs referred to in paragraph 7 above not be paid by due
date, second defendant shall be liable to plaintiff for
the payment
of interest thereon computed at 15.5% (fifteen and a half percent)
per annum from the 15
th
day
of the Taxing Master's allocator, alternatively the date of
settlement of claimant's bill of costs.
9.
In the event of the parties reaching agreement on the amounts for
past and future loss of income, other future and related medical
expenses or any other issue relating to costs, leave is granted to
approach this court to make such agreement an order of court.
In the
event of the parties not reaching agreement on such amounts, or any
issue of further costs, leave is granted to either party,
on notice
to the other party, to approach this court in chambers to present
oral argument as to the further conduct of the matter.
P
L GOLIATH