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[2022] ZANCHC 51
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January v Minister of Police and Others (1080/2015) [2022] ZANCHC 51 (2 September 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
CASE
NO: 1080/2015
In
the matter between:
KGOSIMANG
JACOB JANUARY
Plaintiff
and
THE
MINISTER OF POLICE
First
Defendant
CONSTABLE
SM MOEKETSI
Second
Defendant
CONSTABLE
NCAMILE
Third
Defendant
JUDGEMENT
O’BRIEN,
AJ
1.
The plaintiff claims an amount of
R1 778 991.00 from the defendants for damages due to
injuries he sustained on 7 June
2012. The amount is made up as
follows:
1.1.
Future medical
expenses: R44 906.00
1.2.
Past loss of
income: R169 369.00
1.3.
Future loss of income / earning
capacity: R858 716.00
1.4.
General
damages: R700 000.00
2.
On 30 May 2017, Acting Justice Lever (as
he then was) ordered that the merits and quantum of the plaintiff’s
claim be adjudicated
separately. Furthermore, in paragraph 2 of the
order, the defendants shall
singuli
and, in
solidum
,
liable for all damages that the plaintiff will be able to prove
caused by the incident at Jan Kemp Dorp Police Station on 7/8
June
2012. The trial on the quantum was postponed
sine
die
.
3.
Due to a discrepancy in the order
separating the merits and quantum, I requested the parties to file a
supplementary note about
the issue. The difference relates to a
typographical error in the order. All the parties agree that the
reference to defendant’s
in paragraph 2 should read defendants.
The
evidence
Kgosimang
Jacob January
4.
The plaintiff testified that he was born
in Christiana. He is married according to customary law and has three
children he supports.
He reached grade 10 at school.
5.
On 7 June 2012, the police picked him up
at home and took him to the police station based on allegations
against him. There were
approximately six members of the public who
made specific allegations against him.
6.
There was a discussion between him and
the police when a particular female police officer approached him and
said that he did not
want to give his co-operation. While sitting,
the female officer assaulted him with a hand radio on his forehead.
He stood up and
pushed her, whereafter a group of police officers
threw him to the ground. While on the floor, these offices
continuously assaulted
him. The assault consisted of kicking,
beatings, and kicks. These officers also used handcuffs. After the
assault, the police officers
demanded he clean the blood on the
floor, but he refused. His eyes were both swollen due to the assault.
7.
No charge was formulated against him by
the members of the public who made the allegations against him.
Instead, he was accused
of assaulting the female officer. After that,
he was detained.
8.
The following day, he was given a notice
to pay an admission of guilt fine of R300 for the assault on the
female police officer.
He refused to accept the notice but took it
due to his mother’s intervention.
9.
He left the police station with his
mother and attended his house doctor. The doctor referred him to
Kimberley Hospital due to the
severity of the injury to his left eye.
The doctor completed a J88 form.
10.
The plaintiff attended a disciplinary
hearing and the court case where he was the complainant. He later
learned that two police
officers were found guilty and fined R500
each.
11.
The plaintiff confirmed that both his
eyes were healthy in September 2011. However, there was an incident
where he injured his left
eye. After the incident, the vision in his
left eye deteriorated. He received treatment at Kimberly Hospital for
this incident.
The treating doctor at the hospital informed him that
he must operate on his left eye to improve his vision. He was told
that the
operation would be done on 28 May 2012. From September 2011
until 28 May 2012, although the sight in his left eye was
deteriorating,
he could still see with the eye. The only problem he
met was with lights.
12.
After the operation, which happened only
on 29 May 2012, his sight improved.
13.
After the assault on him, he has no
sight in his left eye.
14.
He told the court he never had fixed
employment. He did piecemeal jobs as a gardener, a labourer on
construction sites and a taxi
marshal. He did a security course in
Gauteng and later took up employment as a security officer with Coin
Security. He earned between
R3500 and R4000 per month.
15.
After security work, he obtained a code
10 learner driver’s license. He then got employment as a taxi
driver. He earned between
R5000 and R6000 per month
16.
Due to his left eye injury, he cannot
obtain his public driver’s permit. Furthermore, his eye pains
daily, and he is light
sensitive. The doctors informed him that
nothing further could be done to the eye. As a consequence, he
receives a disability grant
of R1690 per month. This lapsed after
twelve months. He played soccer, which he was unable to do after the
injury. After the incident
in June 2012, he was unemployed.
17.
Under cross-examination, he said that he
did not have a public driver’s permit when he consulted with
Delport, but he intended
to get one. He conceded that he only had a
code 8 license. He obtained his driver’s license on 8 August
2014 with no restrictions.
He never applied for a public driver’s
permit. He never applied to be a driving instructor. On 25 June 2014,
his driver’s
license was endorsed due to fraud. He fraudulently
helped persons to obtain their learners driver’s licenses.
18.
He helped his father-in-law drive a taxi
to earn an income from 2013 to 2014. After the assault, he still
managed to transport children
to the crèche earning R200.00
per month per child. He also conveys hikers to Kimberley. When he did
this, he neither had
a public driver’s permit nor a drivers
license. By acting in this manner, he knew he was contravening the
law, but states
that taxi drivers work in this manner which helped
him to support his children.
19.
After the assault, he could only obtain
a code eight licence, allowing him to drive small vehicles, not
transport people.
Letitia
Delport
20.
Letitia Delport, an occupational
therapist, has been doing medico-legal work since 2007 for plaintiffs
and defendants. She had in
her possession an instructing letter from
the plaintiff’s attorney, Dr Vos's report, the
ophthalmologist's report, and Kimberly
Hospital's medical records.
21.
On 26 March 2015, she assessed the
plaintiff. He complained of blindness in his left eye, inability to
distinguish between colours,
loss of vision in his right eye, and
sensitivity to light affecting his eyesight.
22.
He explained to her his employment
record as a security officer, a labourer, participation in a driving
school where he taught driving
lessons and finally, as a taxi driver
until 2012. After the incident, he struggled with his driving ability
and could not obtain
a public driver’s permit. In her opinion,
the plaintiff cannot get a public driver’s permit with his eye
impediment.
23.
Apart from his difficulty walking in
darker or lighter offices, he presented with no other functional
impairments. The plaintiff
informed her that his right eye tires when
completing tasks that take a while. Furthermore, sunlight causes pain
in his eyes. He
cannot lift heavy objects, which puts pressure on his
eyes.
24.
He needs aids such as a walking stick
for blindness, a magnifying glass, and a cell phone with a bigger
dialling pad.
25.
Regarding his earning ability, he is
unable to work in direct sunlight. He would not be able to work as a
taxi driver because of
his inability to obtain a public driver’s
permit. The plaintiff will be able to do sedentary or semi-sedentary
work. Due
to his injury, the plaintiff will not be able to work in a
mining environment. The witness confirmed that unemployment is a huge
problem in the country. In her experience, people with physical
disabilities are mostly unemployed.
26.
Under cross-examination, she testified
that the reference to attorneys’ notes should read medical
notes. The plaintiff informed
her that his eyesight deteriorated, and
his right eye problems were due to the incident on 7 June 2012.
27.
She further confirmed that the
information in her report from the plaintiff was her source. Delport
said the plaintiff told her
he could not renew his public driver’s
permit. She described that he could not climb ladders due to the
plaintiff’s
difficulty with depth perception. She is not able
to comment on the plaintiff’s report to Dr Vos that he does not
perceive
any problems with his eyesight in his right eye.
28.
The plaintiff also told her he has a
code 8 driver’s license. He can drive short distances.
Everhardus
Jacobs
29.
Dr Everhardus Jacobs obtained degrees at
masters and doctorate levels from the Universities of the Free State,
Stellenbosch, and
Johannesburg. He is a registered industrial
psychologist with 30 years of experience in the corporate sector. At
the time of his
testimony, he had completed approximately one
thousand seven hundred reports.
30.
He assessed the plaintiff on 14 May
2015. During his assessment, he interviewed the plaintiff and
obtained collateral information
to determine the plaintiff’s
earning capacity. He established that the plaintiff obtained grade 10
with no further qualifications.
The plaintiff did construction jobs
for ten years and four years as an unregistered security officer with
a grade C classification.
The plaintiff resigned and started working
as a taxi driver in Jan Kempdorp. Later, the plaintiff became a part
owner in a driving
school. According to the plaintiff, as co-owner of
the driving school earned R7500,00 per month. However, he could not
produce
evidence of proof of income.
31.
After he stopped the driving school, the
plaintiff worked for his stepfather as a taxi driver and did casual
jobs like transporting
school children. At the time of the assessment
in 2015, the plaintiff was unemployed.
32.
Although the occupational therapist
recommended that the plaintiff would be able to do semi-sedentary
work, he has no experience
in sedentary work. According to the
occupational therapist, the plaintiff is excluded from certain types
of employment. He will
not be able to pass an eye test for working in
a mine as a general worker.
33.
From an employment perspective, the
plaintiff will be an unequal competitor. The plaintiff will also not
benefit as a disabled person
because he cannot do a sedentary job.
Because of the plaintiff’s physical limitation will result in a
disadvantage when competing
with able persons.
34.
As the co-owner of a driving school, the
plaintiff was able to teach people to obtain a learner’s
driver’s license.
And he derived an income from it.
35.
After first saying that the plaintiff
cannot obtain a PDP, Jacobs testified that he is not certain whether
the plaintiff will be
able to get it. Jacobs further testified that
the plaintiff would be unable to do security work.
36.
In an uninjured state, the plaintiff was
able, as an unskilled worker, to earn R82 000,00 in 2019. He
would have moved up the
scale to a semi-skilled worker, earning
R124 600,00 in 2019, which would be his career plateau.
37.
Regarding his injured career path,
Jacobs opines that the plaintiff has some earning capacity. The
plaintiff will be able to do
casual jobs earning R124 600,00 in
2019 terms.
38.
Under cross-examination, Jacobs
perceived the plaintiff as unimpaired in an uninjured state. The
plaintiff did not give the specific
years he worked for Coin
Security. He conceded that a person like the plaintiff, who was out
of the security business for ten years,
will have difficulty
returning to that sector. He confirmed that the plaintiff did not
refer to his criminal record during the
assessment. A criminal record
will influence the appointment of an individual in the corporate
sector. It is doubtful that an individual
will obtain employment in
the corporate sector. Individuals with a fraud conviction will not
likely be appointed to the security
sector.
39.
Jacobs conceded that the plaintiff could
continue as a taxi driver in the informal sector. The witness could
not say whether the
plaintiff, with his previous conviction of fraud,
would be able to obtain a PDP.
Dr
Jacob Vos
40.
Vos qualified as a doctor in 1978. He
specialises in ophthalmology since 1994. Since 1995 he has been in
private practice. For the
last few years, he has only done anterior
segment work, including cataracts, glaucoma, and filtration. There
was a misconception
about the date of the injury. Initially, he
thought it referred to the assault in September 2011, but the actual
assault was on
7 June 2012.
41.
He testified that the plaintiff was
blind in his left eye. The scenario was sketched that the plaintiff
was assaulted in September
2011; he attended the hospital in
Kimberley; he was recommended to undergo an operation on his left
eye; on 29 May 2012, he was
operated on at Barkley West hospital; he
had to return the following day for a follow up within two weeks.
Before the follow-up,
he was assaulted on 7 June 2012. The plaintiff
was admitted to Kimberley Hospital on 8 June 2012, where he was
examined. He again
went to Kimberley hospital on 18 June 2012.
42.
Against the above background, the
witness testified that the assault on 7 June 2012 played a direct
role in the blindness in the
plaintiff’s left eye. He explained
that the eyeball holds a liquid – which is not water –
made up of enzymes,
salt and calcium. This liquid circulates in the
eye, fusing with the blood vessels. This fusion happens in a channel
called Schlemm.
If the channel is blocked or damaged, it will
influence the pressure in the eye.
43.
During the incident in September 2012,
the iris pulled up and sealed the laceration in the eye. This
laceration was at the bottom
of the cornea. When the plaintiff was
seen on 23 September 2011, the notes stated that he had a mature
cataract – meaning
that the lens turned white. The plaintiff’s
top vision was very weak. The doctors diagnosed the plaintiff as
having a post-traumatic
cataract. The future treatment would be the
removal of the cataract.
44.
When the plaintiff returned, the doctors
prepared to remove the traumatic lens to implant a new one. This
process included the determination
of the size of the new lens. At
that time, the intra-ocular pressure in his eye was 15mm tonometry.
Vos states this is within normal
limits between 10 and 20mm.
45.
Apart from the cataract, there was a
vitreous haemorrhage as well as a retinal lapse, and afferent pupil
defect
46.
In his opinion, the doctors who decided
on the operation to remove the cataract, the plaintiff will have
vision in the eye, or the
vision that he had will improve.
47.
On 29 May 2012, the doctors operated,
and the left extracapsular lens was extracted. According to Vos, the
operation was a success.
An air bubble was placed to hold the iris to
avoid chafing. Due to the air bubble, the doctors could not see
inside the eye. Neither
could the plaintiff see with the eye.
48.
If there was no air bubble in the eye,
he would have been able to see with the eye but not have perfect
vision. After the operation,
the plaintiff still had a cut in the
cornea, which impaired his vision. This can be improved through a
cornea implant. If a cornea
implant is not done, a procedure whereby
the current cornea is operated on will result in better vision. If
that is done, the plaintiff
would not be blind.
49.
Dr Vos also explained that the cut in
the cornea affects your navigational sight.
50.
After the assault on 7 June 2012, the
plaintiff was at the hospital. The pressure in the plaintiff’s
left eye dropped to four.
The doctors queried the existence of fluid
at the top of his eye where the incision was made to extract the
lens. The liquid formed
a bubble.
51.
On 18 June 2012, the plaintiff was again
at the hospital. There was some infection in the eye. Ten days after
the assault, his pupil
was not in its normal position. According to
Vos, trauma probably caused the shift in the pupil. The intra-ocular
pressure was
thirty-six, way beyond the average score of 22. The
score of 36, according to Vos, is not threatening. If dealt with
correctly,
his vision can be saved.
52.
Vos opines that he suspects that the
plaintiff had a pressure attack of above 50 in his eye, which caused
damage to the eye. The
leakage of fluid caused pressure on the
incision wound. This results in pressure because the eye does not
produce fluid anymore.
53.
In Vos’ opinion, the trauma of the
assault on the plaintiff’s head caused the rise in pressure.
Cortisone could also
cause raised pressure. The nerves were not
damaged by glaucoma.
54.
On 25 August 2014, the medical notes
state that the pupil is skewed. It was established that the eye’s
nerves were permanently
damaged.
55.
In his opinion, the assault on 7 June
2012 caused a leak under the mucous membrane resulting in lower
pressure in the eye. The treating
doctors were compelled to give the
plaintiff stronger medication to stop the leakage. He suspected that
the plaintiff had a vascular
incident due to the high pressure in the
eye, resulting in a bleak nerve, thin blood supply, and retinal
atrophy. Glaucoma could
not have caused the blindness. The assault
contributed to the blindness.
Dr
Kenneth Hornby
56.
He is a medical specialist who completed
his qualification in October 2011. Since 2012 he has worked as a
consultant at Kimberley
Hospital and became the head of the
ophthalmology department in 2017. He is the only doctor who performs
retinol surgery in the
Northern Cape for state patients.
57.
According to the medical records, the
plaintiff’s first contact with the hospital was on 8 September
2011, when he had normal
vision.
58.
The plaintiff had a cornea laceration.
An operation sealed off the corneal laceration without any leakages.
The plaintiff had some
inflammation which was treated with cortisone.
He developed a cataract in his left eye.
59.
After the operation on 8 September 2011,
the plaintiff had a follow-up visit on 28 May 2012.
60.
The medical notes show that on 28 May
2012, measurements were taken to decide the strength of the lens. At
that stage, his left
eye nerve was intact. The pressure in the left
eye was normal. Dr Jordaan indicated a vitreous haemorrhage. He
testified that the
treating doctor could not assess the nerve
function for possible retinal lapse on the sonar. In such an
instance, his practice
is to remove the cataract to allow him to see
the retina. He confirms that the treating doctor completed a
difficult medical procedure
when he loosened the iris, pulled open
the pupil and removed the lens. When he removed the lens, there was a
tear,
61.
Dr Hornby confirmed that the assault in
September 2011 caused the cataract. He also confirmed that after
September 2011, the plaintiff
not only had a cut and an air bubble
but also bleeding. All these would have influenced his vision
testing. He agreed that for
the plaintiff to have normal vision, he
must have a cornea implant. According to Hornby, interpreting the
medical notes, there
was moderate intra-ocular inflammation. The
treating doctor was uncertain whether there was fluid leakage in the
eye, which is
why he queried it. The nerve in the left eye was
functional after the operation.
62.
Two weeks after the operation, the notes
show that the pressure in the left eye was thirty-six but still
bleeding. There was no
vitreous bleeding in the front section.
Furthermore, it is not stated that the pupil shifted. He explained
that if there is a leakage,
the fluid will go to that area to seal
it, but it is not noted that it was present.
63.
He explained to the court how the
pressure in an eye works. He did not see any evidence of pressure of
more than sixty, resulting
in an artery shutting down completely. The
fact that the plaintiff did not complain shows that between 8 June to
18 June 2012,
there could not have been so much pressure to have
caused optic nerve failure.
64.
Hornby opines that the permanent loss in
the left eye is most likely due to the injury that occurred in
September 2011.
65.
It is not in dispute that on 11
September 2011, the police attacked the plaintiff. It is common cause
that the police assaulted
the plaintiff on 7 June 2012. After the
assault in September 2011, the plaintiff received treatment at
Kimberley Hospital.
66.
After the assault on 7 June 2012, Dr
Fisher saw him and recommended that he should attend Kimberley
Hospital as he was seriously
injured.
67.
After the incident in September 2011,
the vision in his left eye deteriorated, and the plaintiff attended
Kimberley Hospital for
treatment. The doctor recommended an operation
on his left eye to enable him to see better. The hospital booked a
procedure for
29 May 2012.
68.
After the operation on 29 May 2012,
there was a visual improvement in his left eye.
69.
The first question to be decided is
whether the cause of blindness in his left eye was due to the assault
in September 2011 or the
assault stated in the claim on 7 June 2012.
A secondary question is the failure of the plaintiff to obtain
treatment for a period
of 10 months which may have contributed to the
loss of vision in his left eye.
70.
In the plaintiff’s case, the
assault on 7 June 2012 was the sole cause of his blindness. Contrary
to that, the defendant submits
that the assault on 7 June 2012 is not
the sole cause of his blindness but other inter-related issues after
the assault in September
2011. Stated differently, the defendant
argues that multiple factors contributed to the blindness in the
plaintiff’s left
eye.
71.
Thus, it is a question of whether the
assault on 11 September 2011 and various factors caused his blindness
in the left eye or the
assault on 7 June 2012.
72.
The onus is on the plaintiff to prove a
causal connection between the assault on 7 June 2012 and the damages
he suffered.
73.
In
Lee v
Minister for Correctional Services (Treatment Action Campaign &
Others as
amici curiae
)
2013 (1) SACR 213
(CC) at para 38
:
“
The
point of departure is to have clarity on what causation is. This
element of liability gives rise to two distinct enquiries.
The first
is a factual enquiry into whether the negligent act or omission
caused the harm giving rise to the claim. If it did not,
then that is
the end of the matter. If it did, the second enquiry a juridical
problem, arises. The question is then whether the
negligent act or
omission is linked to the harm sufficiently closely or directly for
legal liability to ensure or whether the harm
is too remote. This is
termed legal causation.
”
74.
In
Lee
,
the Constitutional Court held that factual causation depends on a
conclusion drawn from available facts or evidence and relevant
probabilities.
[1]
75.
In a case of positive conduct on the
part of a defendant, the behaviour is mentally removed to decide
whether the relevant consequence
would still have resulted.
76.
In
its reasoning, the Constitutional Court rejected the view of the
Supreme Court of Appeal that reasonable systemic adequacy would
have
altogether ended the risk of cotangent (TB). The Constitutional Court
held that it was unnecessary to substitute reasonable
alternative
measures to determine factual causation because our law allows for a
more flexible approach.
[2]
In
developing the Constitutional Court’s argument, Mhlanthla J
reasoned that the simple question to ask is whether
the factual
conditions of the plaintiff’s incarceration were a more
probable cause of his tuberculosis than that which would
have been
the case had he not been incarcerated in those conditions.
77.
In
Lee
at para 57
, the court reasons as
follows:
“
Postulating
hypothetical lawful, non-negligent conduct on the part of a defendant
is thus a mental exercise in order to evaluate
whether probable
factual causation has been shown on the evidence presented to court.
It is not a matter of adducing evidence,
as the Supreme Court of
Appeal appears to have found. I accept that the postulate must be
grounded on the facts of the case, but
that is not the same as saying
that there is a burden on the plaintiff to adduce specific evidence
in relation thereto.
”
Was
the cause of the plaintiff’s blindness the assault in September
2011 or June 2012?
78.
With the above question in mind and
having regard to the principles laid down in
Lee
,
I consider the evidence presented by the parties.
79.
Before doing so, it is necessary to set
out a court’s approach in evaluating expert evidence because
both parties called experts
with opposing views about the cause of
the plaintiff’s blindness.
80.
In
Michael
& Another v Links Field Park Clinic (Pty) Ltd & Another
[2002] 1 All SA at para 36
, the
court said the following:
“
That
being so, what is required in the evaluation of such evidence is to
determine whether and to what extent their opinions advanced
are
founded on logical reasoning. That is the thrust of the decision of
the House of Lords in the medical negligence case of Bolitho
v City &
Hackney Health Authority
[1997] UKHL 46
;
[1998] AC 232
(HL). With the relevant dicta
in the speech of Lord Browne-Wilkinson we respectfully agree.
Summarised they are to the following
effect.
”
and
[37]
“
The
court is not bound to absolve a defendant from liability for
allegedly negligent medical treatment or diagnosis just because
evidence of expert opinion, albeit genuinely help, is that the
treatment or diagnosis in issue accorded with sound medical practice.
The court must be satisfied that such opinion has a logical basis, in
other words that the expert has considered comparative risks
and
benefits and has reached a defensible conclusion’ (at 241 G –
242 B).
”
81.
Counsel on both sides tried to persuade
me that I should accept the opinion advanced by their expert.
However, as a general observation,
I cannot help but think that the
opposing medical experts were proponents of a view depending on who
called them. It left this
uneasy feeling with me in the assessment of
their evidence.
82.
Dr Vos was of the view that the incident
on 7 June 2012 was independent of the incident in September 2011. The
opposing view by
Dr Hornby was that a multiplicity of factors played
a role in causing the blindness in the plaintiff’s left eye.
83.
Both doctors agree that the plaintiff
suffered a laceration to his cornea in his left eye after the assault
in September 2011. Therefore,
both agreed that the plaintiff had
developed a post-traumatic cataract and was scheduled for an
operation to remove it. Both doctors
further agreed that the cataract
operation would be complicated, and the plaintiff would have had a 5%
to 10% sight in his left
eye after the operation.
84.
Both doctors agreed that a cornea
transplant is not a guarantee for improving the vision in the
plaintiff’s left eye. Regarding
the shortage of corneas, it was
highly unlikely that the plaintiff at the lower end of the receiving
scale would have been a candidate
for such an operation.
85.
In the words of Dr Vos, it is
exceedingly difficult to give a prognosis given the risk of
complications inherent in such an operation.
Dr Vos initially said in
his report that the injury to the plaintiff’s left eye resulted
from the assault on 6 June 2012
(read 7 June 2012). However, he was
uncertain about the cause of the blindness in the plaintiff’s
left eye. His evidence
was that he would have to confer with Dr
Hornby, and he might amend the cause of the plaintiff’s
blindness because nobody
knows what caused it. Furthermore, he
conceded that the penetrating incident in September 2011 could have
caused damage to the
eye because the posterior segment of the eye
could not be evaluated.
86.
Dr Vos’ theory that the pressure
in the eye could be the cause is pure speculation.
87.
Given the uncertainty in the evidence of
Dr Vos regarding the probable cause of the plaintiff’s
blindness, I am not convinced
that the underlying speculative factual
basis is correct.
88.
Initially, Dr Vos commended the
record-keeping of the Kimberley Hospital. However, when confronted
during cross-examination about
certain entries, his view was that he
was not prepared to accept the medical notes or the content. He was
not prepared to concede
when faced with something not in the
plaintiff’s favour.
89.
Hornby could not, with certainty or as a
matter of probability, state that the assault on 7 June 2012 was the
cause of the plaintiff’s
blindness in one eye. According to
him, the pre-existing ocular pathology sustained in 2011, the effects
of longstanding vitreous
haemorrhage, glaucoma and non-compliance
with treatment and follow-up all contributed to the significant
visual loss in his eye.
90.
Regarding the pressure in the eye, Dr
Hornby said that there is no documentation suggesting high pressure
in the eye.
91.
Mr Botha, for the plaintiff, was
extremely critical of the evidence of Dr Hornby. Because initially,
he said in his report that
the permanent loss of vision of the left
eye was most likely due to an injury that occurred in September 2011,
while in cross-examination,
several factors contributed to the
plaintiff’s blindness which started in September 2011.
92.
Furthermore, he conceded that the trauma
of June 2012 could have caused vitreous bleeding.
93.
What is troublesome is that even before
he consulted with the plaintiff, he believed that the former had
fabricated his version.
94.
During the address by counsel for the
defendants, she conceded that before the events of 7 June 2012, the
plaintiff had 10% vision
in the left eye. On a question I asked, she
argued that the defendant, in those circumstances, would only be
liable for 10% of
the damages.
95.
Applying the
Lee
test for factual causation, the
assault on the plaintiff on 7 June 2012 was one of the causes that
contributed to the blindness
in the plaintiff’s left eye.
However, I do not exclude that other factors may have contributed to
the blindness in the eye.
But that does not mean the defendant would
escape liability because the assault was only one factor contributing
to the plaintiff’s
injury. The defendant must take his victim
as he finds him. The plaintiff had some vision in his left eye, which
a cornea transplant
may have improved. The fact that the plaintiff,
according to Dr Hornby, was at the lower end of receiving one is of
no moment.
96.
I accept that the plaintiff’s
failure to go for treatment before the assault on 7 June 2012 may
have aggravated his medical
condition as far as his left eye is
concerned. I do not accept the evidence of the plaintiff that he felt
not to go to the hospital
because he was given a medical script for
medication. A prudent person would, given his eye condition in
similar circumstances,
have taken the necessary steps to go to the
hospital and have follow-ups concerning his condition after the
assault of September
2011. But the failure to go to the hospital
happened before the assault on 7 June 2012.
97.
It is still necessary to decide on legal
causation. The question is whether the assault on 07 June 2012 is
linked sufficiently closely
or directly to the loss for legal
liability to ensue or whether the loss is too remote. (See:
International
Shipping Co (Pty) Ltd v Bentley
1990 (1) SA 680
(A) at 700 E –
701 G
)
98.
The
test to be applied is flexible in which factors such as reasonable
foreseeability, directness, the absence or presence of a
novus actus
interveniens, legal policy, reasonability, fairness, and justice all
play their part.
[3]
99.
In
delict, the reasonable foreseeability test does not require that the
precise nature or the exact extent of the loss suffered
or the
precise manner of the harm occurring should have been reasonably
foreseeable for liability to result. It is sufficient if
the general
nature of the harm suffered by the plaintiff and the general manner
of the harm occurring was reasonably foreseeable.
(See
Burchell
Principles of delict at 92 ff
and
the authorities cited.)
[4]
100.
In my judgment, when the police
assaulted the plaintiff on 7 June 2012, it was reasonably foreseeable
that he might suffer serious
injuries. In this regard, the fact that
he was bruised when Dr Fischer saw him speaks for itself. In any
event, hitting a person
on his forehead or face with a weapon that
could cause serious harm is reasonably foreseeable.
101.
Furthermore, police officials must
uphold the law and promote constitutional values. To act contrary to
those principles would undermine
the public’s confidence in the
police. Therefore, fairness and justice require that unlawful acts
committed by police officers
go against the grain of society which
cannot be countenanced.
102.
I, therefore, found that the damages
claimed were not too remote, and a causal link has been established
between the assault by
the police officials on 7 June 2012 and the
damages the plaintiff suffered.
Loss
of Earning Capacity
103.
Under this rubric, the plaintiff claims
an amount of R858716.00 for loss of earning capacity. The basis of
this amount flows from
the report of the industrial psychologist
Jacobs.
104.
Mr Botha submitted that the plaintiff
should be compensated based on the evidence of Jacobs’ 100%
loss of his earning capacity
due to loss of vision in his left eye.
According to this argument, Jacobs testified that people who are
physically disabled, like
the plaintiff, find it almost impossible to
find any gainful employment.
105.
Mr Botha further submitted that Jacobs
evaluated the earning ability of the plaintiff not on the work that
he did but on the income
that he was able to generate in his
uninjured condition, which put the plaintiff in the unskilled
category in the non-corporate
sector. Accordingly, the argument goes,
it is unnecessary to make any finding about whether the plaintiff is
entitled to be compensated
for earnings that he generated without a
driver’s license.
106.
Ms Sieberhagen submitted that the
plaintiff failed to prove a causal connection between the assault on
7 June 2012 and the total
loss of vision in his left eye. Therefore,
he is not entitled to claim damages for loss of income.
107.
Furthermore, the evidence of Delport is
based on the wrong facts. Delport’s report refers to the
incident of September 2011,
and the report of Dr Vos dated 4 December
2014 which refers to the assault that took place during September
2011.
108.
Ms Sieberhagen further submitted that
Jacobs’ evidence considered the plaintiff uninjured and without
impairments.
109.
The central issue about the plaintiff’s
ability to generate an income must be based on facts. Mr Botha
submitted that because
the defendant did not call an occupational
therapist or an industrial psychologist as witnesses, this court
should accept the evidence
presented by the plaintiff. I cannot
entirely agree with the submission that because the defendant did not
call any opposing witnesses,
the court should
mero
motu
accept the evidence of the
occupational therapist and industrial psychologist.
110.
In my judgment, it is simplistic to
calculate the plaintiff’s earning capacity not on his work but
on the income that he could
generate in his uninjured condition. Such
an argument does not consider the facts, the plaintiff’s
employment history, which
shows that he was unemployed for various
periods. Furthermore, the plaintiff has a criminal record for fraud.
This fact was not
taken into consideration by either Delport or
Jacobs.
111.
Calculating the plaintiff’s income
in his injured state is problematic. This is because the plaintiff
was not truthful. He
initially testified that he did not work after
the incident in June 2012. However, during cross-examination, he
testified that
he worked as a driver from 2013 to 2014. This labour
consisted of transporting children and picking up hikers with his
motor vehicle
to generate an income.
112.
Given the uncertainties regarding his
uninjured employment history and the fact that he did work in his
injured state, I cannot
find credible evidence to determine the loss
of earning capacity on an actuarial basis. Therefore, in my view,
this is a case where
the plaintiff suffered some form of loss of
earning capacity, in which case, I shall award a globular amount.
113.
In finding the amount, I consider the
plaintiff’s employment history, his criminal record, and the
disability grant he received
per month, knowing well that he earned
an income, R300 000.00 would be fair.
General
Damages
114.
As is usually the case, the parties
referred me to various instances where the plaintiffs suffered
similar injuries.
115.
The plaintiff referred to the case of
Matladi v RAF (36243/08) [2010]
ZAPJHC 173
10 June 2010, where the
plaintiff suffered a broken jaw and lost vision in one eye. He was
for two months in hospital and was awarded
general damages of
R210 000.00 in 2010, equating to R377 552.00 in 2022 terms.
116.
In
Mtembu
v Minister of Police [1991] LNQD 10 (D)
,
the plaintiff, a 42-year-old male, lost sight in one eye due to a
gunshot wound. In 1991 he was awarded R55 000.00, equating
to
R360 972.00 in 2020 terms.
117.
In
Smith
v Minister of Safety & Security (51/2010) [2016] ZAECPEHC 73 (22
November 2016)
, the plaintiff was
assaulted and left blind in one eye and with a hearing impairment. He
was awarded R280 000.00 in 2016,
equating to R363 837.00 in
2022.
118.
The plaintiff submitted that the court
should award general damages of R350 000.00.
119.
The defendant referred me to cases where
the plaintiffs either suffered an injury to an eye without loss or
partial loss of sight.
In this instance, I deem it unnecessary to
refer to those cases as the plaintiff suffered a complete loss of
vision in his left
eye.
120.
In deciding general damages, the court
has considered various facts, including that the police officers were
supposed to protect
the plaintiff. Also, the loss of vision in an eye
is serious because it affects a person’s ability to live his
life optimally.
121.
Considering all factors, an amount of
R350 000.00 is awarded for general damages.
122.
The plaintiff also claims for future
medical expenses, as testified by Dr Vos. The defendant indicated
that the plaintiff did not
pursue this claim. I do not agree. The
amount of R27 767.00 is the amount Dr Vos testified, which the
plaintiff will need
for further medical expenses.
123.
I make the following order:
123.1.
The defendant shall pay the plaintiff
for damages he suffered due to the assault on him by members of the
defendant on 7 June 2012,
amounting to R677 767.00, calculated
as follows:
(i)
Future medical expenses:
R27 767.00
(ii)
Loss of earning capacity:
R300 000.00
(iii)
General
damages:
R350 000.00
123.2.
The defendant shall:
(i)
Be liable to pay interest on any
outstanding amount payable in terms of paragraph 1 above unless the
full outstanding amount is
paid within 30 days of the date of this
order calculated at 7% per annum from the date of this order to the
date of payment, both
inclusive;
(ii)
Be liable for payment of interest at a
rate of 7% per annum on any and all tax or agreed costs payable in
terms of this order, or
any portion thereof, not paid within 30 days
calculated from the date of affixing of the Taxing Master’s
allocatur
,
alternatively from date of agreement in respect of costs, to date of
payment.
123.3.
All amounts payable in terms of this
order in respect of capital, interest, and costs shall be payable by
a direct transfer into
the trust account of Elliot Maris Attorneys,
the details of which are as follows:
Account
Holder:
Elliot Maris Attorneys
Trust Account
Bank:
Standard Bank
Account
Number:
[....]
Branch
Code:
050002
Branch:
Kimberley
Reference:
VN6457
123.4.
The defendant shall pay the plaintiff’s
reasonable tax or agreed party and party costs of this action in
respect of the quantum
on the high court scale, which shall include
but is not limited to the following:
(i)
Counsel’s fees;
(ii)
The cost of obtaining all expert
medical, legal reports and any addenda thereto, the qualifying and
reservation fees (if any), the
costs of consultation by the
plaintiff’s expert witnesses in preparation for trial and
attending trial (if any), in respect
of the following expert
witnesses:
(a)
Dr J Vos – Ophthalmologist;
(b)
Dr E Jacobs – Industrial
Psychologist;
(c)
Letitia Delport – Occupational
Therapist;
(d)
Robert Koch – Actuary.
(iii)
The costs of consultations between the
plaintiff’s attorneys and/or counsel with expert witnesses
and/or the plaintiff in
preparation for trial, including:
(a)
The costs of consultation with the
plaintiff to consider any offer from the defendant;
(b)
The travelling expenses (if any) of the
plaintiff’s legal representatives to consult with expert
witnesses in preparation
for trial;
(c)
The reasonable taxable accommodation and
transportation costs incurred by or on behalf of the plaintiff in
attending all medical,
legal consultations with the parties’
experts, attending consultations with his legal representatives and
the court proceedings.
O’BRIEN
AJ
2
September 2022
Parties:
For
the plaintiff:
C
Botha
instructed
by
Elliot
Maris Attorneys
,
Kimberley
For
the defendant:
A
Sieberhagen
instructed
by
The
State Attorney
,
Kimberley
[1]
Ibid
[2]
Ibid
[3]
Standard Chartered Bank of Canada v Nedperm Ltd
[1994] ZASCA 146
;
1994 (4) SA 747
(AD)
at 765 A – B
[4]
Standard Chartered Bank of Canada (supra) 768 F – G