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[2021] ZAGPJHC 438
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Sicina v The Minister of Police and Another (41425/2017) [2021] ZAGPJHC 438 (13 September 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED
13
September 2021
Case
No.: 41425/2017
In
the matter between:
SICINA
MLUNGISI NICHOLAS
Applicant
and
THE
MINISTER OF
POICE
First Defendant
KGASHANE
REUBEN THOKA
Second Defendant
JUDGMENT
MAKHOBA J:
[1]
All that this court was required to decide in this matter in which
the Plaintiff claimed
payment of money from the Defendant were:
1.1
Past and future loss of earnings.
1.2
Future medical expenses.
[2]
The parties have already settled the matter in respect of damages.
[3]
It is common cause that on 16 December 2016 the Plaintiff was shot by
the Second Defendant
who was on duty and was employed by the First
Defendant. He sustained an injury on his metatarsal.
[4]
The matter was set down for trial and both the Plaintiff and the
First Defendant were
represented by counsel. It was agreed between
the parties that the matter will proceed via a video link and both
parties addressed
the court and filed heads of argument. Oral
evidence was led and both parties asked the court to decide the
matter on the papers.
Counsel for the Defendant asked the Court to
dismiss both claims as the Plaintiff was unemployed not because of
the injuries but
because he was retrenched. On future medical
expenses counsel for the Defendant asked the court to dismiss the
claim as the Plaintiff
was fully recovered.
[5]
The Plaintiff filed the following expert reports:
5.1
Dr.P Marumo – Disability and impairment specialist.
5.2
Nyiko Macherke – Occupational therapist
5.3
S-Vos – Industrial psychologist
5.4 G.
Jacobson – Actuary
[6]
The Defendant filed the following expert reports:
6.1 Dr.
M.R Shandukani – Orthopaedic Surgeon
6.2 Dr.
C. Sivhabu – Occupational Therapist
6.3 Dr.
H. Malaka – Industrial Psychologist
[7]
The Orthopaedic Surgeon reported as follows about the Plaintiff:
“
No
permanent disability as a result of injuries sustained”
[1]
“
Good
prognosis. No future morbidity is expected.”
[2]
[8]
Of outmost importance is paragraph 12.6 of Dr. DR Shandukani
[3]
which reads as follows:
“
Future
Employability
The injury sustained
has not rendered him disabled and does not prevent his employability.
It is my opinion that without formal
training he will find it
difficult to get employment”.
[9]
In conclusion on paragraph 13 the Dr Shandukani says “It is my
opinion that
the injury sustained by Mr Sicina was not severe.”
The doctor also says “At the time of my assessment he has
reached
maximal recovery with no mobility as a result”.
[10]
Dr. C Sivhabu conclude as follows in her report
[4]
:
“
11.5
Conclusion
11.5.1
Mr. Sicina demonstrated physical ability to perform work in a
medium
physical demand level. He has retained the inherent physical
requirement of his pre-incident work. It is however unfortunate
that
was retrenched 7 months post-accident. Mr. Sicina indicated that his
retrenchment was not influenced by the injuries he sustained
in the
incident in question.
11.5.2
Mr. Sicina has Grade 9 and no variety of work experience than
his
experience as a machine operator. His level of education and work
experience put him at a disadvantage in the open labour market.
It is
therefore expected that he will struggle to enter open labour market
at his pre morbid level considering his vocational skills.
He is
still suited to perform manual work in the medium physical demand
level.”
[11]
In regard to the Plaintiff’s future medical treatment. Dr
Shandukani
[5]
says there is no
clinical basis for him to have chronic pain. The doctor further says
the following:
“
12.5
Medical Expenses (Quantum)
12.5.1
Past Medical Costs
Mr. Sicina was treated
in a public hospital, treatment of which is already heavily
subsidized
12.5.2
Future Medical Costs
Conservative
Management
Analgesia at maximum
amount of R10308 per annum
There is no value for
him to get any physiotherapy or any orthotic services.
Surgical
Management
Mr. Sicina has no
indication for surgical intervention. X-rays did show an exostosis
pointing to the sole of foot, but he does not
have any callosity on
the sole, which may be attributed.”
Seeing that the experts
report that the injuries sustained by the Plaintiff as a result of
the shooting did not result in permanent
disability or serious injury
it is my view that he is not entitled to be compensated for future
medical expenses.
[12]
In respect of a claim for loss of earnings and/or earnings capacity
the following are trite legal
principles:
In
the matter of Southern Insurance Association Ltd v Bailey NO
[6]
His Lordship Appellate Justice Nicholas stated as follows:
“
Any
enquiry into damages for loss of earning capacity is of its nature
speculative, because it involves a prediction as to the future,
without the benefit of crystal balls, soothsayers, augurs or oracles.
All that the court can do to make an estimate, which is often
a very
rough estimate, of the present value of the loss. It has open to it
two possible approaches:
-
One is for the judge to make a random
estimate of an amount which seems to him to be fair and reasonable.
That is entirely a matter
of guesswork, a blind plunge into the
unknown.
-
The other is to try to make an
assessment, by way of mathematical calculations, on the basis of
assumptions resting on the basis
of assumptions resting on the
evidence. The validity of this approach depends of course upon the
soundness of the assumptions,
and these may vary from the strongly
probable to the speculative.
It is manifest that
either approach involves guesswork to a greater or a lesser extent.
But the court cannot for this reason adopt
a non- possumus attitude
and make no award.”
[13]
In Walker v Road Accident Fund.
[7]
The court not only with approval referred to the aforementioned
judgment of Nicholas AJ but also continued as follows:
“
This
principle applies with equal force to the manner in which a judge is
called upon to deal with any aspect of the assessment
of the loss of
earnings – if it is relevant to the assessment, he/she must
make the best of the material before the court,
notwithstanding that
the result may well be open to criticism.”
[14]
In view of the inherent difficulties and uncertainties it has
generally been accepted that it
is preferable to make an assessment
based on actuarial calculations rather than to take a blind plunge
into the unknown.
[15]
In the matter of De Kock v Road Accident Fund
[8]
the court once again confirmed the approach to be taken with the
calculation of loss stated in paragraph 22 as follows:
“
[22]
In approaching claims of this nature, the courts have always been
open to two possible approaches, namely:
22.1 either that
the Judge makes a round estimate of an amount which seems to him to
be fair and reasonable. That process
is entirely a matter of
guesswork – a blind plunge into the unknown;
Or
22.2 that the
Judge tries to make an assessment by way of mathematical calculations
on the basis of assumptions resting on
the evidence. The validity of
this approach depends of course upon the soundness of the
assumptions, and these may vary from the
strongly probable to the
speculative.
[23]
It is manifest that either approach involves guesswork to a greater
or lesser extent. However,
the court cannot for this reason adopt a
non possumus attitude and make no award.
[24]
The inherent difficulties and uncertainties therein manifest, it has
generally been accepted
that it is preferable to make an assessment
based on actuarial calculations rather than to take a blind plunge
into the unknown.
[25]
I prefer this approach
[26]
Where the actuarial approach is adopted, the traditional method
entails a four-stage process
as follows:
26.1 Calculate
the present value of the future income which the plaintiff would have
earned but for the injuries and the consequent
disability.
26.2 Calculate
the present value of the plaintiffs future income, if any, having
regard to disability.
26.3 Subtract
the figure obtained under 26.2 from that obtained under 26.1.
26.4 Adjust the figure
obtained as a result of this subtraction in the light of all relevant
factors and contingencies.”
[16]
In my view since according to the expert opinion referred to above
the Plaintiff has retained
his inherent physical requirement of his
pre incident work and has reached maximum recovery therefore there is
no need for an award
for future medical expenses. This claim must
therefore fail.
[17]
Again the Plaintiff himself opined to the experts that his
retrenchment was not influenced by
the injuries he sustained in the
incident in question therefore this court cannot order that he be
compensated for the future income
which he would have earned but for
the injuries and the consequent disability. In any event, the
Plaintiff have been compensated
for his injuries and he has fully
recovered.
[18]
In short, the Plaintiff is currently unemployed because he was
retrenched and he was completely
healed.
[19]
I am of the view that the Plaintiff has failed to discharge the onus
of proving on the balance
of probabilities that he is entitled to the
relief he seeks.
[20]
I make the following order:
1.
The Plaintiff’s claim for past and future loss of earnings is
dismissed.
2.
The Plaintiff’s claim for future medical expenses is dismissed.
3.
The Plaintiff is to pay the Defendant’s costs.
Judge
of the High Court
Makhoba
J
Counsel
for the Appllicant
:
Adv
Mataboge
Instructed
by
:
Mathebula & Jona Inc
Counsel
for the Respondent
:
Adv
Vobi
Instructed
by
: State
Attorney Mr Ngcobo
Date
of hearing
: 23 August
2021
Date
judgment delivered
:
13
September 2021
[1]
Vide
Case line 5-11 para 12.4
[2]
Vide
Case line 5-11 para 12.3
[3]
Vide
Case line 5-12
[4]
Vide
Case line 5-36 para 11.5
[5]
Vide
Case line 5-11
[6]
1984
(1) SA 98
AD at 116H
[7]
Case
no. 17955/04 reported on the 28
th
of October 2009 in the High Court of South Africa Kwazulu Natal,
Durban Division.
[8]
Case
no. 2237/2013 reported on the 22
nd
of April 2015 in the High Court of South Africa (Gauteng Division,
Pretoria)