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[2016] ZAECPEHC 12
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Damana v Minister of Safety and Security (1418/2011) [2016] ZAECPEHC 12 (26 January 2016)
IN
THE HIGH COURT OF SOUTH
AFRICA
(EASTERN
CAPE LOCAL DIVISION – PORT ELIZABETH)
CASE
NO. : 1418/2011
Heard
on : 9 and 10 September 2015
Date
delivered : 26 January 2016
In
the matter between:
MZUKISI
DOUGLAS DAMANA
Plaintiff
And
MINISTER OF SAFETY AND
SECURITY
Defendant
JUDGMENT
MAJIKI
J:
[1]
The saying that “sometimes the chains that prevent us from
being free are more mental than physical” cannot be more
relevant than in the present case. The quote’s background
emanates from a horse that is tied into a plastic chair,
it remains
still, because it believes, it cannot move.
The
plaintiff is a 48 year old bachelor with three children. Four
years ago he was assaulted by the members of the South African
Police
Services. He claimed damages against the defendant. The
defendant was held liable for the assault on the plaintiff
and was
ordered to compensate the plaintiff for damages that the plaintiff
proved. The matter served before this court for
determination
of general damages and loss of income. The claim for future
medical expenses was settled between the parties
in the sum of R32
000.00.
[2]
The following issues were recorded as admitted in the parties’
pre-trial minute:
2.1
The plaintiff was admitted to hospital, following the injury on 21
January 2011. He
was placed in a cervical skeletal traction
from 21 January to 3 February 2011, i.e. for 13 days.
2.2
On 3 February a C5/6 fusion was carried out on him under general
anaesthesia. He was
discharged on 8 February wearing a neck
brace i.e. 5 days after the procedure.
2.3
In total he was hospitalised for 18 days.
2.4
The neck brace was removed after 6 weeks.
2.5
The C5/6 anterior fusion is now solid.
2.6
Since the brace was removed the plaintiff seldomly suffered pain and
took analgesic medication
therefore.
2.7
There is a 35% chance that within the next fifteen years he would
have to have an extension
of fusion to the C6/C7 level.
[3]
Dr Keeley, a specialist neurosurgeon testified on behalf of the
plaintiff. He had already prepared two reports which he
confirmed in court. He testified that the plaintiff
complained of weakness in his arms and legs which was probably
indicative of an injury in the spinal cord. The X-ray
examination found that the facet joints between C5 + C6 were
dislocated.
The fracture was unstable. As a result
thereof he was put in traction and by July 2015 he had total
stability.
Solid fusion had taken place between C5/C6. He
had no pain in his neck. Dr Keely agreed with Dr
Mackenzie that
the plaintiff received no further specific treatment
for injuries sustained in the assault. Severe pain would have
lasted
for about two weeks after the injury. C6/C7 is
detoriating and may require fusion in future. The joints above
and below
take more strain because of the fused area. The
plaintiff experiences unpleasant frightening cracking sensation in
his neck
when making certain movements.
[4]
The plaintiff complained to him that he had difficulty with
swallowing, this is associated with anterior cervical fusion. The
complaint seemed like a vague description of pharyngeal
inco-ordination. He has to take sloppy type of foods, not gulp
too
much, not even fluids, to avoid choking. This has been the
situation since the surgery and is a permanent condition.
[5]
The plaintiff never worked since the accident. The noted
deterioration takes place without him being subjected to the
stress
of work. Heavy manual labour is a significant factor which
would enhance deterioration of C6/C7. Lifting heavy
objects
braces shoulders in the neck. It is reasonable to assume
hastened degeneration in the neck.
[6]
Dr Keely disagreed with doctors Vlok and Mackenzies’ reports
that the plaintiff could be physically capable to return
to work a
year after the fusion. According to him, Dr Vlok had
never examined the plaintiff and did not
study the
plaintiff’s MRI scan.
[7]
The plaintiff testified that he experiences pain when it is cold and
when swallowing. He misses eating meat as he survives
only on
soft foods. He is shy to eat when there are people around, he
can no longer attend traditional
ceremonies
where people mostly eat meat. He was in great pain on the day
he was assaulted. He sat still on the sofa
the whole night
until he went to the hospital the next day. Upon his discharge
he had to go and stay at his mother’s
house. He
could not do anything for himself. His younger brother had to
help him. He had a brace on, his hands
were weak.
[8]
He feels small when people look at him. He was humiliated by
the assault in full view of onlookers. He has lost
a lot of
weight. He is stammering and speaks very softly.
[9]
Before the incident he was working for about 7 to 8 months, in a
period of 12 months, at a time, in Uitenhage. He was
working on
a contract basis, building walls, reconstructing windows, that
involved having to break
walls in order to
put new windows. All the employees were paid in
cash; a sum of R3
000.00 per month. They had no
bank accounts. He obtained a matric and N1 motor mechanic
certificates, whilst in jail.
He did some practical work
whilst he was in jail. When the jobs were scarce he would
do gardening and was able
to assist in work involving motor
mechanic. He would make about R700-00 in a month. He
would stand in a corner,
called Maqokolweni and be picked by people
who looked for casual labourers. After he was injured he could
no longer be picked.
[10]
After the injury he once got employment in a chicken farm. He
was supposed to catch chicken and put them in boxes.
He gave up
the job after 3 days because of the pain he had at the back of his
neck when bending and getting up catching the chicken.
[11]
He burnt his book where he recorded his employment details. He
had lost hope in ever getting employment again.
It did not
occur to him and he was also not advised that he must ask for a
letter from one Mr Stuurman, he once worked for.
He was
concerned about telling the court bout the injuries he sustained.
It would be difficult to locate other of the people
who picked him up
from the corners.
[12]
He disagreed with the doctors that he could still work. He
stated that his spine becomes painful when he bends to pick
up things
or when he walks for a considerable distance. He said he did
not remember telling Dr Mackenzie that he had
no pain and did
not feel weak. At the time of the injury he did not
have full time employment, he was working
as a casual labourer.
This explains why he told Dr Mackenzie that he was unemployed.
[13]
He admitted that he had history of incarceration, during his working
life of 26 years. He started working at the
age of
18 years. He spent 15 years in jail. At the time of
the injury he had a pending case of possession
of dagga. In
some instances he was sentenced to lashes, reformatory school and
cained for his brushes with the law.
[14]
Dr Van Daalen, an Industrial Phycologists testified that when he did
his report he was not aware of the plaintiff’s criminal
record. Nevertheless, that would not affect the plaintiff in
the kind of industry he was working in, which only considers
whether
a person can do the job or not. He understood that when the
plaintiff had indicated that he
was
unemployed it is because he had been a casual
labourer. The plaintiff had said he knew
some of his
ex-employers but was not advised to look for them.
Usually, such workers deal only with foremen who collect
them, even
though the workers would know the owner of the contract, the
owners would not have their casual labourers’
details.
The workers are usually sourced from the localities where the work is
being undertaken.
[15]
He was of the view that the plaintiff could not compete in a labour
market. The plaintiff told him that he has no strength.
He is scared of injuring his neck or he is scared for his neck due to
the injury he had had. He does not appear to be a person
that
can be picked by people who look for labourers. He cannot
deliver expeditiously at work. The plaintiff’s
condition of the vertebrae had dramatically improved, but his neck
had not. Doctors Mackenzie and Vloks’ medical perspective
is purely from a physical point of view, they did not consider the
plaintiff’s psychological state. He on the other
hand,
considered a range of factors, holistically, the injury, the fusion,
the plaintiff’s lack of strength , fear for his
neck, his
weight, speech difficulty, the type of work he would have to do and
etc. Dr Mackenzie obtained answers to direct
specific questions
relating to whether the plaintiff was paralysed or not.
The weakness in the plaintiff’s arms
did clear after sometime
but his body in its entirety lacked strength. It would be
difficult for him to find work.
[16]
He could not agree with the suggestion that the plaintiff at the time
of the injury was still continuing with his criminal
activities.
From 1998, he was out of prison for 10 years, up to 2008. He
worked and lived a normal life. He had
integrated successfully
into the society. With regard to possession of dagga in 2008, Dr Van
Daalen did not attach much significance
to, he said there are huge
cultural differences from society to society.
[17]
He accepted what the plaintiff had told him about his employment
information. He found no basis to suspect him of not
being
truthful and therefore saw no need for him to verify the
information. The plaintiff’s earning capacity to him
did
not appear to be a thumbsuck. The plaintiff
explained it fully. He said he was building patios,
fitting
doors etc. He earned R3 000.00 per month. A month with 22
days gives a calculation of income of R150.00 per
day, which is a
normal rate in that industry. In bad months he earned R750.00
per month doing gardening.
[18]
The method of the actuarial calculations by Munro Forensic Actuaries
were not disputed. What is contentious is the
factual
basis for it.
[19]
In order to assess the general damages for pain and suffering the
court has to look at the nature and extent of the injuries
and
duration of the pain suffered by the plaintiff; amongst others.
The injury and pain that was suffered by the plaintiff
are common
cause between the parties. What requires to be evaluated is the
evidence regarding what he is suffering at the
moment.
[20]
The plaintiff did not appear as an untruthful witness to me. He
easily conceded even less comfortable details of some
parts of
his history. I was able to observe his appearance, weight,
difficulty in speaking. I find no basis not
to believe his
evidence that he has difficulty swallowing and the effects same
has in his daily living. This is over
and above the admitted
evidence that he seldomnly experiences pain. He specified
that he feels pain when it is cold,
when he bends and when he walks
for a distance. I therefore accept his evidence in this regard.
[21]
With regard to loss of earnings, I am of the view that Dr Van Daalen
explained to the court that it is true from an orthopaedic
and
medical points of view that the plaintiff’s condition had
improved and stabilised. However, his difficulties entail
a
psychological aspect which the doctors did not enquire into.
The plaintiff generally does experience loss of strength and
fears
for his neck.
[22]
I must state that the issue as to whether the plaintiff would still
be able to work is difficult to decipher in the manner
in which his
case has been presented. The evidence as supported by what the
plaintiff told the doctors indicates that he
experiences little
pain. The evidence also establishes that, physically he fully
recovered. He also demonstrated to
Ms Ansie Van Zyl, the
occupational therapist, that he was strong and does not have pain.
[23]
Having said that, the plaintiff testified at length about his current
circumstances. Over and above his health challenges,
he tried
to work in a chicken farm. He had to quit in three days because
he was not coping. In my view, despite all
the physical fitness
that was recorded, same could not carry him through to sustain
the work that required physical
effort. In my
view, it may be so that his case was mystified by the aspects
relating to pain, however it became apparent
during trial that the
plaintiff still suffers. He cannot bend, walk for long, and has
lost weight, amongst others.
[24]
With regard to employment history I accept that for the times he was
out of prison he did work, when work was available.
As a
contract worker his income was in the tune of R3 000.00 per
month. When work was scarce, he would earn about R700.00
per
month. I do not attach so much significance, as the respondents
would want, to the fact that the plaintiff had said he
was
unemployed. My view is that, the plaintiff was not on any
contractual work at the time he was injured. He was also
not
working on any particular person’s
garden
at the time. However, he would avail himself and in all
likelihood, he would be picked as it had always been
the case and go
and work for R150.00 a day. In addition to that, he had
some competency in mechanical works. It
is not unusual that, a
person with circumstances like the plaintiff’s, would spend
such earnings without keeping a record
or taking the money to the
bank first.
[25]
I have sought guidance from the case law. Both counsel assisted
in this regard, for which I am grateful. In
Ramolobeng
v Lowveld Bus Services (Pty)
Ltd
and Another, Gauteng North Province, Case No. 29836/2009
on 3 February 2015, a 34 year old male, employed as a packer at a
vegetable market suffered injuries to cervical and lumber spine
and
had a head injury with concussion. He had a spinal surgery, he had an
artificial disk inserted at levels L3/L4 and was hospitalised
for 6
months. He suffered erectile dysfunction, moderate depression, low
self esteem, struggled with domestic chores. He
could not sit
for long, sleep on one side, play soccer and was rendered
unemployable in open labour market. An award
of R550
000.00 was made for general damages.
[26]
I agree with Mr Pretorius on behalf of the defendant that the
injuries in the above matter were serious, the claimant was rendered
unemployable by the injuries. He suffered total loss of
amenities of life.
[27]
In
Nhantumbo
v Road Accident Fund
South
Gauteng Case Number
11385/2011
delivered on 16 August 2013. A 49 year old self
employed panel beater and spray painter suffered soft tissue
injury of the cervical and lumber spine. There was a suggestion
by the doctor that the injuries were permanent, the x-ray
findings on
the other hand detected no abnormality. The plaintiff suffered
severe pain for approximately two to three weeks
subsequent to the
collision. He would suffer pain throughout his life. He
was awarded R200 000.00 in general damages.
[28]
The plaintiff on the other hand did not suffer so much of prolonged
pain, according to admitted facts. He also has not
suffered
total loss of amenities of life.
[29]
The amount claimed for past and future loss of income in the amended
particulars of claim is R100 000.00, during argument a
sum of R119
610.00 and R299 440.00 in respect of past and future loss of income
was suggested respectfully. The general damages
claimed are in
the sum of R500 000.00. During argument it was suggested that
an amount in the range of R450 000.00 to
R500 000.00 would be
reasonable, a sum of R475 000.00 was suggested.
[30]
In respect of loss of earnings, I have to consider whether it has
been established that had the assault not occurred, the plaintiff
would have earned and if so, how much. The date of the
incident was 21 January 2011, at the time the plaintiff had
a pending
case of possession of dagga; he had a history of incarceration but
had been out of prison for 13 years before the date
of the incident;
his earnings were irregular, i.e on contract basis and when there
were no contracts as low as R700.00 per month;
[31]
If I am to accept that the plaintiff would have worked until he was
65 years of age. He would have worked for 21 years
from the
date of incident. It is only in 15 years that there is a chance
of 35% fusion. The plaintiff did not
present a guaranteed
structure of employment, his employment depended on availability of
would be employers.
[32]
The plaintiff was also prone to committing offences that could
land him in jail again. At the time of the incident,
he had a
pending case. In my view, it is immaterial what he would have
kept the dagga for, he would have kept an illegal
substance,
nevertheless. I also do not accept Dr Van Daalen’s
view that his criminal history would not affect
his future
employability. He is prone to re-offending, he said when it is
tough he resorts to committing crime. If
he did so, and
was found guilty of a criminal offence, he would be sent to jail and
would be unemployed. I have
to take into account all
these factors in my determination of quantum for loss earnings in
this matter.
[33]
In respect of past and future loss of earning, I am considering the
net amounts of R132 900 00 and R374 300 00 calculated by
the
Munro Forensic actuaries. I would then apply 40% contingency
deduction in the light of what I have raised above
on each of the
amounts.
[34]
In the result, I consider the following amounts to be reasonable,
General
damages
R275 000.00
Past
loss of earnings and
Future
loss of earnings
R304 320.00
Future
medical expenses (as settled)
R 32 000.00
________________________
B
MAJIKI
JUDGE
OF THE HIGH COURT
Counsel
for the plaintiff :
Mr P
H Mounton and Ms N Barnard
Instructed
by
: Messrs
G P Van Rhyn , Minnaar & Co. Inc.
Rhymin
Building
Republic
Square
UITENHAGE
c/o
Daniel Saks Inc.
218 Cape Road
Mill Park
PORT
ELIZABETH
Counsel
for the defendant :
Mr B Pretorius
Instructed
by
: State
Attorney
29 Western Road
Central
PORT ELIZABETH