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[2013] ZAECPEHC 19
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Maart v Minister of Police (3049/2011) [2013] ZAECPEHC 19 (9 April 2013)
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE, PORT ELIZABETH
CASE NO: 3049/2011
Date heard: 31/01/2013 & 01.02/2013
Date Delivered: 9/04/2013
In the
matter between
JACOLINE
MAART
...................................................................................................
Plaintiff
And
THE
MINISTER OF POLICE
.................................................................................
.Defendant
JUDGMENT
GOOSEN,
J.
The circumstances of this matter are tragic. The Plaintiff, a 38
year old mother of two children, instituted action for damages
in
respect of the emotional shock and trauma suffered by her as a
result of the unlawful killing of her minor son, Angelo Marconi,
by
employees of the defendant. The merits of the plaintiff’s
claim were conceded shortly before the commencement of the
trial and
accordingly the facts giving rise to the claim were not in dispute.
On Sunday 20 June 2010 the plaintiff attended a church service in
the morning. On returning home she saw that her son, the deceased,
was part of a group of youths who were consuming alcohol in the
street outside of her home. She confronted her son who was under
the
influence of alcohol and told him to return home. He responded to
her in an aggressive and confrontational manner and returned
to his
friends in the street and continued drinking. The plaintiff was
distressed by her son’s behaviour and as a result
she
proceeded to the Kamesh Police Station where she requested the
assistance of the policemen who were on duty. It seems that
she
wanted the policemen to apprehend her son and possibly take him in
to custody. The policemen on duty informed her that they
could not
do so. Nevertheless a group of reservist policemen agreed to
accompany her to where the youths were drinking. The policemen
gathered outside of the home of the plaintiff and called the
plaintiff’s son over to speak to them. The deceased was under
the influence of alcohol and apparently responded in an aggressive
manner. When the policemen attempted to physically detain
him, the
deceased drew two knives, threatened the policemen and then fled to
avoid detention. He was pursued by the police and
he was cornered in
a nearby yard. Although the precise details of what occurred were
not presented in evidence, it appears that
the deceased attempted to
escape and during this attempt he was shot at close range. The
bullet struck the deceased in the back
of his head and he died
instantly. The shooting occurred in full view of the plaintiff. As a
result of observing her son’s
death, at the hands of the
policemen summoned by her, the plaintiff suffered severe trauma. It
is this shock and emotional trauma
which forms the basis of her
claim for damages.
As indicated, the defendant conceded the merits of the claim. The
only issue therefore was the determination of the quantum of
damages
to award to the plaintiff. In this regard too the issues were
considerably narrowed by agreements concluded by the parties.
In
this respect the defendant accepted liability for payment of funeral
expenses in the amount of R19 012.00; past medical
expenses in
the amount of R2650.00 and future medical expenses in the amount of
R51 500.00. The only issues in dispute relating
to the quantum
of the plaintiff’s claim concerned past and future loss of
income as well a general damages.
It is common cause between the parties that the plaintiff has
suffered severe emotional shock and trauma as a result of her having
observed the shooting of her son. Reports prepared by Prof Zabow, a
psychiatrist who assessed the plaintiff, were handed in by
consent
between the parties, it being agreed that the contents of the
reports be admitted in evidence. According to the first
of these
reports, dated 21 September 2012, Prof Zabow provided a psychiatric
clinical diagnosis of the plaintiff, indicating
that she is
presently suffering from chronic post traumatic stress disorder of a
severe form and a major depressive disorder
with attendant
psychosis. Dr Zabow records in his report that the plaintiff, on
examination, presented as “…
markedly
depressed and psychotic symptoms are present. Emotional distress
increased with discussion of the sequence of events
and her
presentation is in keeping with persistent chronic post traumatic
stress disorder syndrome. Her mood is secondary to
this disorder.
Her affect demonstrated depression and anxiety. She has
hallucinatory experiences and expresses paranoid indication
of
delusional intensity.”
In his discussion Prof Zabow
records that the plaintiff showed marked impairment in function with
acute symptoms requiring urgent
treatment. His conclusion was that
“
(s)he is not able to engage in employment or any
substantial gainful activity due to her present symptomatology.
There has been
significant life style change and quality of life
effects extending to family and domestic issues due to restriction
of activities
of daily living. She has difficulties maintaining
social function at pre-morbid level or doing what she used to do.
She is in
need of psychiatric management and medication to address
the depression and anxiety. It is difficult to predict response to
treatment
but the conditions are treatable.”
In his
supplementary report Prof Zabow deals only with the psychiatric
management which he identified as being required and the
cost
estimates associated with an intensive 12 month treatment regime and
a further 18 month period for follow up consultations.
The Plaintiff also presented the evidence of Mr Ian Meyer, a
clinical psychologist, and Michelle Nobre, an industrial
psychologist.
Both parties submitted reports prepared by actuaries
based upon the report prepared by Nobre. These actuarial reports set
out
two different scenarios relating to the calculation of future
loss of earnings for the plaintiff. These relate to the plaintiff’s
response to treatment, namely if she responds well to treatment and
in future once again becomes employable or does not do so
and
remains unemployable for the rest of her life. I shall deal with the
evidence presented by the plaintiff in relation to the
heads of
damages claimed by the plaintiff.
Past loss of income claim
It is common cause that at the time of the incident giving rise to
the claim, the plaintiff was employed as a stock controlling
clerk
for Metro Wholesalers in Uitenhage and had been employed by the
company for a period 13 years. Following the incident the
plaintiff
was booked off work for a period of approximately a month. She
thereafter returned to work, although it appears that
she frequently
had periods when she was ill and unable to work. This continued
until April 2011 when the plaintiff was retrenched
by the company,
apparently because the company closed down its operations. Since
then the plaintiff has been unemployed.
The actuarial reports prepared by Munro and Jacobson on behalf of
plaintiff and defendant respectively, calculate the plaintiff’s
past loss of earnings based on the income figures provided in the
report of Nobre to date of calculation being 1 February 2013
as
R108 800.00 and R170 814.00 respectively.
It was suggested in argument that I should award the aggregate
between these two figures as being the established past loss of
earnings. Mr Jooste, who appeared for the defendant, conceded that
this would represent a fair and reasonable basis for determining
the
plaintiff’s past loss of earnings. Mr Mouton, for the
plaintiff, submitted that I should apply the usual 5% contingency
to
this figure and that there are no circumstances present which would
warrant the application of a greater contingency.
Mr Jooste, to the contrary, argued that having regard to the fact
that the plaintiff lost her employment as a result of her employer
closing down that this warranted the application of a higher than
normal contingency in relation to the calculation of past loss
of
earnings. He submitted that a contingency in the order of 15% would
be warranted.
In my view the fact that the plaintiff was retrenched by reason of
her employer closing down certainly impacts upon the assessment
of
her past loss of earnings. Bearing in mind that these past loss of
earnings relate to the calculation of her lost earnings
consequent
upon the damage causing event between the date of causation of the
damage and the date of trial, the fact that some
loss of earnings
would have arisen in any event would have the effect of reducing the
calculation of her actual loss of earnings
as at the date of the
trial. This factor can, in my view, be brought to account by
applying a slightly higher contingency than
that for which the
plaintiff contends.
Contingencies are by their nature those “
hazards
that normally beset the lives and circumstances of ordinary people”
1
.
Once such circumstances is the possibility of a period of
unemployment occasioned by retrenchment. I consider that a
contingency
allowance of 10% in respect of the plaintiff’s
past loss of earnings, being the aggregate figure of R139 807.00
determined
by the actuaries, would be appropriate in the
circumstances of this matter.
Future loss of income claim
The determination of the plaintiff’s future loss of income is
dependant upon a finding as to whether the plaintiff is likely
to
respond well to the psychiatric treatment that she is required to
undergo and, therefore, whether it is likely that she will
be able
to return to the open labour market. It was common cause between the
parties that in the event that the plaintiff does
not respond well
to the treatment she will remain unemployable for the rest of her
life.
I have already set out hereinabove the evidence of Prof Zabow whose
opinion was that the particular conditions experienced by
the
plaintiff presently are treatable. As indicated however he was
unable to state with any precision how the plaintiff was likely
to
respond to the envisaged treatment regime.
Mr Meyer’s evidence was relevant in this regard. He testified
that in his opinion there was a very poor likelihood that
the
plaintiff would recover to such an extent that she would be able to
re-enter the open labour market and that she would, on
the
probabilities, remain unemployable. He stated that in considering
whether the plaintiff would respond positively to the treatment
regard must be had to the particular circumstances of her case, the
chronic nature of her conditions and the severity thereof.
Ordinarily it would be expected that a person suffering from post
traumatic stress disorder would commence recovery within a
period of
three months of an incident giving rise to the disorder. In this
instance the plaintiff has demonstrated no marked
recovery even
after two and half years has elapsed since the traumatic incident.
The fact that she is, after this length of time,
severely ill and
presenting with severe post traumatic stress disorder, chronic
severe major depressive disorder with psychotic
features and with,
what Meyer described as chronic bereavement disorder, suggests that
her prognosis for positive response to
treatment is poor. Meyer
further suggested that there are certain features present which
compound this poor prognosis, namely
that the plaintiff still lives
in the same neighbourhood and that she is confronted daily with the
location of her son’s
death; that the neighbourhood is violent
and that the plaintiff regularly experiences trigger events which
stimulate recall of
the tragic circumstances in which her son died.
Meyer conceded, in cross examination, that the plaintiff possessed a
number of personality traits that were conducive to her
recovery,
namely her extensive commitment, pre-morbidly, to engagement in her
church where she serves as an elder. Her involvement
in social and
home visits to the elderly as well as in work with youth groups in
the church. Although she is presently unable
to participate in these
activities she nevertheless has a desire to do so once again.
Meyer’s opinion however was that
these positive attributes
which would stand her in good stead to recover from the trauma are
vastly outweighed by the many difficulties
she faces in her
recovery.
The defendant did not present any expert evidence to contradict the
views expressed by Meyer. The defendant nevertheless argued
that in
determining the question as to likelihood of recovery this court
must accept that the plaintiff accepts that there is
a prospect of
such recovery, having regard to the fact that provision has been
made for a claim for future medical treatment.
Given that such
treatment is to be undertaken it must be accepted that it may have a
positive outcome. It is indeed of course
possible that once
treatment has been received that the plaintiff’s condition may
improve and that she may well recover
sufficiently to re-enter the
open labour market. This much is the effect of Prof Zabow’s
evidence. However, as already
noted Prof Zabow is unable to state
whether the treatment will, as a matter of fact, be successful. The
fact that treatment is
to be received in the future and the fact
that such treatment is necessary, says nothing about its likely
effect. Whether the
treatment will have the outcome that the
plaintiff will have recovered sufficiently to re-enter the open
labour market is dependant
upon those factors which are presently
able to be identified in the plaintiff’s condition which point
to a likelihood of
recovery. Those are the factors identified by
Meyer and, on his unchallenged evidence I accept that the prospects
of recovery
are poor.
In the light of this evidence it was argued by the plaintiff’s
counsel that this court should accept the scenario of future
loss of
earnings based upon the plaintiff not being able to recover
sufficiently to re-enter the open labour market. Having accepted
that scenario, it was contended that a contingency factor of 20%,
being higher than the norm, should be applied to take account
of the
possibility of a recovery after treatment as well as the
vicissitudes which would beset the plaintiff in re-entering the
open
labour market given her age, her qualification levels and the
particular levels of unemployment in this region, factors
adumbrated
in Nobre’s evidence.
In my view that approach has much to commend it in the light of the
particular difficulties, absent contrary evidence, in determining
the likelihood that the plaintiff will recover as a result of
treatment. I accept therefore that the plaintiff has established
that the likelihood that she will recover sufficiently to re-enter
the open labour market and obtain and retain employment for
the
remainder of her working life is poor. I accept therefore that in
determining the value of her future loss of earnings it
will be
appropriate to assume that she will, in consequence of the damage
suffered, remain unemployable for the remainder of
her life.
The evidence of Nobre, as indicated, is relevant in regard to the
determination of an appropriate contingency allowance to be
made.
She testified that in the event that the plaintiff does recover
sufficiently to re-enter the open labour market, her prospects
of
obtaining employment would be affected by a range of factors. On the
one hand the plaintiff has a good employment record,
including 13
years of employment with her former employer; she has a range of
skills to offer a prospective employer and is a
respected member of
her community. Against this would need to be weighed the fact there
is high rate of unemployment in the Eastern
Cape; that the plaintiff
will be vulnerable having experienced the trauma she has and that
she may not be able to present well
during a job interview; that she
will have been out of the formal labour market for some time and
that she will be competing
against more able bodied and younger
individuals.
Although these factors are relevant to determining the plaintiff’s
ability to re-enter the open labour market, their effect,
cumulatively considered is suggestive of a reduced capacity to
generate income at pre-morbid levels even in the event that the
plaintiff recovers after treatment. For this reason these factors
ought to be considered in the exercise of the discretion to
determine a contingency allowance which is fair to both parties.
Mr Mouton argued that it would be appropriate to apply a contingency
allowance of 20% in this matter since although it is not
likely that
the plaintiff will recover and therefore be able to obtain gainful
employment in future there remains a prospect
that she may do so
having regard to the positive attributes that she has which favour
such recovery.
Mr Jooste contended for a rather larger contingency allowance. I am
unable to agree. As already indicated I do not consider,
on the
evidence presented, that there is indeed a significant likelihood
that the plaintiff will recover. Even if it is accepted
that the
treatment will have a positive effect the prognosis of a recovery
sufficient to re-enter the open labour market is not
good. If indeed
she is ultimately able to re-enter the open labour market, her
prospects of securing employment are not substantial.
The longer she
takes to recover the less likelihood there is that she will indeed
be able to re-enter the labour market and restore
her earning
capacity to pre-morbid levels. This much seems abundantly clear from
the evidence before. I consider that, having
regard to all of these
factors that a contingency of 20% is fair and I shall apply such
deduction in the calculation of the plaintiff’s
future loss of
earnings.
Insofar as the actuarial calculation of the loss is concerned, the
actuaries again produced slightly different figures notwithstanding
the use of the income data provided by Nobre. The difference was
however not significant and it was accordingly accepted by both
parties that I should apply the aggregate of the two calculations to
determine the plaintiff’s future loss of income. That
being
so, the plaintiff’s future loss of income is determined to be
R1 068 609.50, to which a 20% contingency
deduction will
be applied.
General damages
An award of general damages seeks to compensate the plaintiff for
loss suffered in respect of the plaintiff’s personality
interests. It seeks therefore to compensate the plaintiff for pain
and suffering occasioned by the loss causing event, physical
and
other trauma and loss of amenities of life. The assessment of
non-patrimonial damages necessarily varies from case to case
and is
dependant upon the assessment of the plaintiff in the particular
circumstances of the matter.
In this instance Meyer testified that the plaintiff’s loss of
amenities of life has been significant and pervasive. This
is
supported by Prof Zabow. Meyer pointed to the fact that the
plaintiff has, in consequence of the severe chronic post traumatic
stress disorder and major depressive mood disorder, been rendered
incapable of employment in the open labour market. She has
withdrawn
socially, no longer functions within her church community and her
functioning within her family is greatly impaired.
The plaintiff
feels directly responsible for her son’s death, she believes
that she set in motion the events that resulted
in her son’s
death and she experiences her daily existence as dishonouring his
memory. She is overwhelmed by guilt. Her
experience of her family
life serves to exacerbate these feelings of guilt and trauma and she
considers that even recovery would
be contrary to the punishment she
believes God is meting out to her.
The psychological profile presented is one of a deeply traumatised
mother who remains, despite the passage of some years, in
a
desperately compromise and vulnerable state.
In the course of argument reference was made to a number of matters
similar to the circumstances that pertain in this matter
by way of
providing this court with some guidance as to an appropriate award.
In
Draghoender & ‘n Ander v Padongeluksfonds
2
the plaintiff, who was the mother of a young child, was called to
the scene of a motor vehicle collision outside her home where
her
child had been run down and killed. She suffered emotional shock and
trauma and was diagnosed with an anxiety disorder (post
traumatic
stress), a major depressive disorder with psychosis and a panic
disorder with related agoraphobia. She was awarded
general damages
in the sum of R125 000.00 at present day value. Similar facts
were considered in
Kritzinger & Kritzinger v Road Accident
Fund
3
where the plaintiff was the father of two girls who were killed in a
motor vehicle accident. Plaintiff and his wife proceeded
to the
scene and were required to identify the bodies at the mortuary.
Plaintiff was diagnosed as suffering from chronic bereavement
reaction, post traumatic stress disorder and major depressive
disorder. An award of R182 203.00, in today’s value,
was
made for general damages.
In
Walters v Minister of Safety and Security
4
the plaintiff’s husband committed suicide whilst in police
custody after the plaintiff had requested that the police detain
him
overnight because he was intoxicated. The plaintiff developed a
phobia for police, experienced sleep disturbance, poor concentration
and work motivation and was significantly depressed. She was awarded
an amount of R195 000.00 at current value for general
damages.
It is of course trite that previous awards for general damages serve
no more than as a general guide in the assessment of such
damages. A
court determining an appropriate award is required to consider the
particular circumstances and to fix an amount that
is fair and
reasonable in the circumstances.
In this matter it was argued that the particular circumstances are
significantly more serious than that which applied in the
authorities referred to. Here the plaintiff feels directly
responsible for the death of her son; she witnessed the killing of
her son at close quarters. These circumstances served, it was
submitted, as “aggravation”. It was also argued that
the
evidence establishes that the plaintiff’s trauma is
significantly greater than that apparently experienced by the
plaintiffs in the authorities referred to. On this basis it was
argued that at substantially higher award should be considered.
Mr Jooste argued that there is no room for such an approach since
the assessment of general damages is based upon the court’s
evaluation of the nature and extent of the injury suffered and its
impact upon the plaintiff’s amenities of life. There
is
accordingly no room to contend that one person’s post
traumatic stress disorder, even severe, is to be weighed differently
to that suffered by another person because it arose in circumstances
which notionally may be more shocking or traumatic than
another set
of circumstances. It was submitted that the “severity”
of the circumstances giving rise to the injury
is not relevant to
the determination of the quantum of loss. What may give rise to
differentiation in awards is the extent to
which the injury impacts
upon the plaintiff insofar as it gives rise to suffering, pain,
discomfort and a loss of amenities.
It is so that the circumstances in which a plaintiff suffers loss
would not ordinarily play a role in the determination of the
quantum
of general damages. What the court is concerned with in the
assessment of such damages is to compensate the plaintiff
fairly and
reasonably having regard to the range of impacts and effects that
the injury and its
sequelae
have upon the plaintiff. There
can be no precise calculus. It is however apparent in this matter
that the injury here suffered
has had and continues to have a
profound effect upon the plaintiff. The pervasive effect of the
psychological trauma and its
ongoing severely debilitating effect on
the plaintiff are undoubtedly related to the particular
circumstances giving rise to
her loss. These are factors which bear
upon the quantum of an appropriate award of general damages. Having
regard to all of these
circumstances I consider that an appropriate
award will be an amount of R200 000.00.
Interest on the damages and costs
Two final aspects require consideration. Mr Mouton, relying on the
provisions of section 2A(2)(a) of the Prescribed Rate of Interest
Act, Act 55 of 1975 argued that interest payable on the damages to
be awarded should be ordered from the date of service of the
summons
upon the defendant.
In support of this it was argued that the defendant did not plead a
substantive defence to the merits of the plaintiff’s
claim yet
the merits of the claim were conceded only on the morning before the
trial date. In the light of this, it was submitted
that the matter
could have been resolved at a stage far earlier than when it was and
that it would be appropriate to order interest
on the damages to run
from the date of service of summons, being 29 September 2011.
Mr Jooste argued that, notwithstanding that the merits were conceded
shortly before the commencement of the trial, the determination
of
the lion’s share of the plaintiff’s damages, namely loss
of earnings and general damages, were matters that could
not, given
the circumstances of the matter, be resolved without resort to
trial. Accordingly interest should be ordered only
from date of
judgment of the matter.
Section 2A(2)(a) of the Act lays down the general principle that
interest accrues from the date of demand or date of service
of
summons whichever is the earlier date. In this instance the
plaintiff does not seek an order that interest runs from a date
earlier than that contemplated in section 2A(2)(a) and accordingly
that aspect need not be considered in the context of sub-section
(5)
5
.
Sub-section (5) confers on the court a discretion to make such order
as to it appears just in respect of payment of interest
on an
un-liquidated claim for damages.
In the view I take of the matter, the plaintiff seeks no more than
the application of the general principle in regard to the
payment of
interest. It was not suggested that such an order would bring about
an injustice to the defendant. In the light of
the circumstances
giving rise to the plaintiff’s claim that cannot, in any
event, be so.
The second issue concerned the question of costs, it being contended
that the plaintiff ought to be awarded the costs of two
counsel. It
was submitted that the employment of two counsel was a “wise
and reasonable precaution” in the circumstances
of this
matter, having regard to the fact that the amount claimed was
substantial (being in excess of two million rand) and the
legal
issues are not uncomplicated.
It was argued that regard should be had to the fact that the merits
of the plaintiff’s claim remained in dispute until
the day
before the trial. That being so, trial preparation involved
consultation with a large number of witnesses. The processing
of a
substantial volume of factual issues coupled with extensive
involvement of expert witnesses in relation to the determination
of
the quantum of the plaintiff’s claim necessitated the
employment of two counsel.
The award of costs, including the costs associated with the
employment of two counsel, is a matter within the discretion of the
trial court. The exercise of the discretion involves consideration
of a number of factors, including the volume of evidence;
the
complexity of facts or the law relating to such facts; the
importance of the matter, and whether there are any difficulties
or
other challenges present in respect of the legal principles or their
application to the facts of the matter.
6
I am satisfied that in this matter, the employment of two counsel
was a wise and sensible precaution to be taken by the plaintiff
and
I am accordingly satisfied that such costs ought to be allowed.
In the result I make the following order:
The defendant is ordered:
to pay to the plaintiff the sum of R1 253 875.90;
to pay interest on the aforesaid amount at the legal rate from
date of service of summons, being 29 September 2011, to date
of
payment thereof;
to pay the plaintiff’s costs of suit together with interest
thereon from date fourteen (14) days after
allocatur
to
date of payment, such costs to include:
the costs of two counsel; and
the qualifying expenses, if any, of the following expert witnesses:
Tuviah Zabow;
Ian Meyer;
Michelle Nobre;
Yolandi Swanepoel; and
Alex Munro.
G. GOOSEN
JUDGE OF THE HIGH COURT
Appearances: For the Plaintiff
Mr P. H. Mouton assisted by Ms. N Barnard
Instructed by Van Vollenhoven & Associates
For the Defendant
Mr P. Jooste
Instructed by the State Attorney
1
A
A Mutual Insurance Association Ltd v Van Jaarsveld and Another
1974
(4) SA 729
(A) (Corbett & Buchanan Vol 2, 360 at 367)
2
[2006]JOL
18271 (SE)
3
2009
(5K3) QOD 21 (ECD)
4
2012
(6K3) QOD (KZN)
5
Springold
Investments (Pty) Ltd v Guardian National Insurance Co Ltd
2009
(3) SA 235
(D&CLD) at 244G
6
Koekemoer
v Parity Insurance Co. Ltd & Another
1964
(4) SA 138
(T) at 144H- 145A