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[2011] ZAECPEHC 49
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Riekert and Another v Branch (1766/2009) [2011] ZAECPEHC 49 (24 November 2011)
NOT
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE, PORT ELIZABETH)
Case No: 1766/2009
In the matter between:
JEREMY LUKE RIEKERT
…........................................................................
First
Plaintiff
SHEILA ANN RIEKERT
….......................................................................
Second
Plaintiff
And
CHRISTOPHER BRANCH
…...........................................................................
Defendant
Coram:
Chetty, J
Date Heard:
10 and 11 November 2011
Date Delivered:
24
November
2011
Summary:
Delictual
action for damages –
Defendant pleading self defence – Medical evidence at complete
variance with his version –
Consistent only with plaintiff’s
evidence – Onus not discharged
Quantum
of
general damages assessed at R150 000.00
________________________________________________________________
JUDGMENT
________________________________________________________________
Chetty, J
[1] During the early hours of the 22
nd
February 2009, the first plaintiff
(the plaintiff), then a first year physical education student at the
Nelson Mandela Metropolitan
University (
NMMU
),
presented himself at the trauma unit of the Greenacres Hospital in
Port Elizabeth, where he was examined by Dr L.
Conradie
(Dr
Conradie
).
Clinical examination revealed no evidence of drugs or alcohol and the
plaintiff appeared to be calm and co-operated fully. Dr
Conradie
recorded the plaintiff’s account
of the events which preceded his arrival at the hospital as follows –
“
patient
reports that he was assaulted tonight. Head butted on left side
forehead and sustained human bite wound left thigh”
.
His clinical findings he noted as. “
Annular
lesion suggestive of human bite wound on lateral aspect of left thigh
just above knee. Bruising below left eye. Mild peri-orbital
swelling.
Depressed fracture left frontal area of forehead with bleeding from
left nostril. CT scan report: Depressed fracture
of left frontal bone
involving left frontal sinus in the roof of the left orbit”
.
[2] On 28 February 2009, Drs
Hein
Slabbert (
Dr
Slabbert
)
and
Dean
Barclay (
Dr
Barclay
)
,
a maxillofacial and oral surgeon and ophthalmologist respectively,
performed a joint operation on the plaintiff. The former’s,
an
open reduction and internal fixation of the frontal bone and orbital
roof fractures in which he, in his medico-legal report,
described as
follows:-
“
Following induction
of anesthesia and intubation the patient was prepared and draped in a
supine position. A “fire break”
was shaved for
preparation of a coronal incision. A coronal flap was raised and the
fracture site exposed. The fractured pieces
of bone were mobilized,
the orbital roof and medial orbital wall was explored and a bony
spicule abutting onto the superior rectus
was removed. The bony
fragments were then replaced and immobilized using Synthes 1.5mm
screws and plates. The orbital roof was
reconstructed using a
resorbable orbital plate secured with a single 1.5mm screw.
The area was irrigated and
closed using 2/0, 3/0 Vicryl and Skin Clips. A portable suction drain
was placed.”
Dr
Barclay’s
participation was
necessary to correct the problematic double vision in down gaze in
the plaintiff’s left eye. During the
operation he repaired the
depressed fracture over the frontal sinus, repaired the rim of the
superior orbit and removed the fragment
of bone causing the
restriction of the superior rectus muscle. The joint operation proved
a resounding success, save for certain
sequelae
,
which I shall, in due course advert to.
[3] On 25 June
2009, the plaintiff and the second plaintiff instituted a delictual
action for damages against the defendant, Mr.
Christopher
Branch
,
a fellow student at the NMMU. In their amended particulars of claim
they alleged that the defendant wrongfully and unlawfully
assaulted
the plaintiff by head butting him, gouging his eyes and biting him.
In his plea, the defendant denied the unlawfulness
of the assault and
pleaded that he struck the plaintiff in self defence and in defence
of his girlfriend. He denied head butting
the plaintiff, contending
that he fisted him and counter-claimed, averring, that he had been
unlawfully assaulted by the plaintiff.
[4] Prior to the
commencement of the trial, the parties, in compliance with the
prescripts of Rule 37, held several pre-trial conferences
and reached
agreement on several key issues,
viz
the onus, the
evidential value of the medical reports, the quantum of the past
medical expenses incurred by the second plaintiff
and the possible
separation of the defendant’s claim in reconvention, the
quantum component to stand over for later determination.
At the
commencement of the trial I made an order in conformity with the
last-mentioned request and allowed an amendment to the
particulars of
claim substituting the plaintiff’s mother, Mrs.
Sheila
Ann Riekert
,
as the second plaintiff.
[5] As regards the
burden of proof, the defendant, at the Rule 37 conference,
acknowledged that by virtue of his plea, he was saddled
with the onus
of proving that the force caused by him defending in himself, was, in
the circumstances reasonable and commensurate
with the plaintiff’s
alleged aggression. That concession was properly made and although
Mr.
Naidu
,
in the course of his argument suggested otherwise, the legal position
is trite. It is settled law that the onus rests upon the
defendant.
See
Mabaso
v Felix
1
.
[6] The defendant moreover, not only
admitted the quantum of the second plaintiff’s past medical
expenses in the sum of R91 788.
42, but the
“
correctness”
of the content of the medical reports
and consented to the reports of Drs
Conradie
,
Meintjies
,
Barclay
,
Slabbert
and
Keeley
being
admitted as evidence without the need for them to be called as
witnesses. Notwithstanding the aforementioned admission Mr.
Naidu
argued that I should not defer to the
opinion expressed by Dr
Keeley
in view of what he contended were
patent contradictions in his report. The submission is, in my view,
untenable. The admission at
the Rule 37 conference is at variance
with the argument advanced and there is nothing to gainsay Dr
Keeley’s
conclusion that the injury to the
plaintiff’s left supra-orbital ridge and adjacent frontal sinus
and superior wall of the
orbital cavity was caused by a fierce blow
from a hard concave surface and not a fist.
[7] Whilst it is true that a court
remains the final arbiter and is not bound by expert testimony, it
will not lightly reject expert
evidence falling within the purview of
the expert witnesses’ field. An analysis of Dr
Keeley’s
report and those of the other medical experts demonstrates, quite
unequivocally, the soundness of his opinion. Dr
Keeley’s
report was assailed simply because it refuted the defendant’s
evidence that he had punched and not head butted the plaintiff.
It is
clear from Dr
Keeley’s
report that the injury was
consistent with a head butt and this affords corroboration for the
plaintiff’s testimony.
[8] It is unnecessary to
systematically dissect the evidence adduced during the trial because
the defendant’s version is not
only entirely incompatible with
the medical opinion but moreover improbable in the extreme. Simply
put, the injuries to the plaintiff
could not have been caused in the
manner testified to by the defendant. It is consistent only with the
version deposed to by the
plaintiff and his witnesses. It was readily
conceded by Mr.
Niekerk
that neither the plaintiff nor
Darren
Ausmeier
could be described as particularly impressive witnesses
but that fact does not inure to the benefit of the defendant. He was
an
equally unimpressive witness and upon a holistic appraisal of the
evidence, his version is clearly contrived. I am satisfied that
he
was the aggressor, head butted the plaintiff and clearly did not act
in self defence.
Quantum
[9] Although the plaintiff claimed a
composite amount of R600 000.00 in respect of
contumelia
and general damages, Mr.
Niekerk
submitted that a fair award
would be in the region of R250 000.00. Although Dr
Keeley
expressed the view that the plaintiff made a remarkable recovery, the
uncontroverted evidence is that he still suffers occasional
headaches
and experiences short episodes of facial neuralgia which will endure
for the remainder of his life. Save for the aforementioned
there are
no other lasting
sequelae
. It is furthermore not in issue that
the plaintiff was hospitalized for four days and in recuperation for
approximately two weeks.
Although there were other persons in the
vicinity, the actual head butt was totally unexpected and by the time
the plaintiff and
the defendant fell to the ground, the latter was in
the ascendency, and the fight, over, in a matter of minutes. The
contumelia
suffered by him must be assessed accordingly. All
things considered I am of the view that an award of R150 000.00
to be a
fair sum to compensate the plaintiff for general damages and
contumelia
.
[10] As regards the merits of the
defendant’s claim in reconvention, Mr.
Naidu
was
constrained to concede that there was no evidence to support such a
claim and properly made no submissions thereanent.
[11] In the result the following
orders will issue: -
The defendant is ordered to pay
the plaintiff the sum of R150 000.00 as and for general
damages.
The defendant is ordered to pay
the second plaintiff the sum of R91 788. 42 in respect of past
medical expenses.
Interest on the aforesaid amounts
from the date of service of the summons until date of payment.
Costs of suit, including the fair
and reasonable qualifying expenses of Dr. Keeley.
The defendant’s
counter-claim is dismissed with costs.
________________________
D.
CHETTY
JUDGE
OF THE HIGH COURT
On behalf of the Plaintiffs’:
Adv D. Niekerk instructed by Goldberg & De Villiers, 13 Bird
Street, Central, Port Elizabeth,
Tel: (041) 501 9830, Ref: Ms L.
Pretorius
On behalf of the Defendant: Mr.
V. Naidu, legal Aid Board, 564 Govan Mbeki Avenue, 1
st
Floor, President Centre, North End, Port Elizabeth, Tel: (041) 408
2800, Ref: R van As
1
1981
(3) SA 865
(A)