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[2016] ZAGPPHC 110
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Matsana v Minister of Police and Another (37287/2012) [2016] ZAGPPHC 110 (29 March 2016)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NO:
37287/2012
Not reportable
Not of interest to other
judges
Revised
DATE: 29/3/2016
KENIAS NDLALA
MATSANA
Plaintiff
and
MINISTER OF
POLICE
First
Defendant
MATOME GUNSTON
HLAKO
Second
Defendant
JUDGMENT
AC BASSON, J
[1]
On 8
October 2014 Semenya, AJ granted judgement in favour of the plaintiff
(Mr Matsana) in respect of the merits of the matter and
held that the
first and second defendants are jointly and severally liable to pay
the plaintiff’s proved or agreed damages
arising from the
injuries sustained by the plaintiff on 30 October 2011.
[2]
Is common
cause that the plaintiff suffered a gunshot wound to his right foot
and that he had received treatment for his degloving
injury at
Kalafong Hospital where a K-wire fixation of the 4
th
and 5
th
metatarsals of his right foot was done. This wiring was later removed
but the injury caused unsightly scarring on his right foot.
[3]
Initially
in 2011 the plaintiff was employed as a Community Patroller. He
was still engaged as such when the incident occurred
on 30 October
2011. Post-incident he was on sick leave for two months during which
he received his normal income of R 1 500.00
per month. He
returned to his work as patroller. In September 2012 he was appointed
as coordinator. He was paid R 2 000.00
per month in this
position. He continued working in this capacity until March 2015 when
his contract ended. After the contract
ended the plaintiff started to
work as a hawker.
[4]
This trial
is for the determination of the issue of quantum of damages caused to
the plaintiff arising from the injury sustained
on 30 October 2011.
[5]
According
to the plaintiff he continues to suffer from bullet shrapnel which
remains in his foot; pain in his right foot; scarring
to his right
foot where the split skin graft was tethered to the underlying
tendons and bones of the foot; and scarring of the
right thigh which
was the donor area of the skin graft. According to the plaintiff he
has impaired function of the right foot and
can no longer perform the
same physical activities as he used to prior to the shooting. This,
according to the plaintiff, has negatively
affected his prospects of
employment and his quality of life. More in particular, he claims
that he cannot partake in his formally
usual social activities such
as soccer and gardening. He also claims that he is self-conscious
about the scarring on his foot.
[6]
At the
outset I should point out that whereas the plaintiff has filed
various expert reports, the defendant has filed no expert
reports. I
will firstly deal with the issue of future medical expenses as this
appears to be a non-contentious issue. In any event
the defendant has
elected not to file any medico-legal reports.
Future medical
expenses
[7]
Dr Heymans
(an orthopaedic surgeon) stated that on examination the plaintiff
walked with a normal gait. Both ankles movements are
recorded as full
and stable. Dr Heymans recorded that the plaintiff complained about
pain and discomfort in his right foot. He
recommended a conservative
and nonsurgical treatment consisting of non-steroidal
anti-inflammatories. Dr Heymans sets out the costs
involved in this
treatment in today’s terms to amount to R 18 937.00. He also
notes that: “With the recommended treatment
the patient’s
orthopaedic symptoms should clear up to such an extent that he will
be able to do his normal duties as a security
officer until normal
retirement. For the scarring of his right foot, a plastic and
reconstructive surgical report is recommended.”
He also noteed
that whilst the plaintiff complains about pain in his right foot, on
full examination the right ankle movements
are full and movement of
the toes of his right foot is full.
[8]
Dr Heymans,
however, deferred to the expert opinion of a plastic and
reconstructive surgeon for further assessment and recommendations
regarding the plaintiff’s scarring.
[9]
Dr
Annandale (a plastic and reconstructive surgeon) also assessed the
plaintiff and concluded that the tethered skin graft on the
right
foot is impairing the function of the right foot and causes pain when
the plaintiff walks long distances. He also indicated
that the donor
scar is “not acceptable”.
[10]
Dr
Annandale recommended that, in order to improve the functioning of
the right foot and to relieve the painful symptoms experienced
by the
plaintiff, the plaintiff should undergo a two-stage surgical
procedure roughly one month apart in order to remove the skin
graft
and to effect a placement of a dermal substitute and another skin
graft on top of that. The total cost of this procedure
in today’s
terms is estimated at R 123 776.00.
[11]
A few
sessions of occupational therapy is also recommended by Mrs Caga - a
registered occupational therapist. She also recommended
that the
plaintiff be supplied with pain relieving heat packs, a low bench, a
trolley/dolly (once-off) and pressure garments for
the foot scar. The
total amount in respect of the services in today’s terms is
estimated at R 20 105.00. I have not
allowed for the amount of R
35 773.00 claimed in respect of future garden services. In my view no
proper case has been made out
warranting gardening services for the
lifetime of the plaintiff.
[12]
The
above-mentioned future medical expenses have been recalculated by Mr
Potgieter, a Fellow of the Actuarial Society of South Africa,
in
order to estimate the present value of the plaintiff’s future
medical expenses to be awarded. In summary the present value
of the
plaintiff’s future medical expenses are as follows:
1.
Conservative
treatment recommended by the orthopaedic surgeon Dr Heymans: R 18
937.00.
2.
Treatment
recommended by the plastic and reconstructive surgeon Dr Annandale: R
123 776.00.
3.
Treatment
recommended by the occupational therapist Ms Caga: R 20 105.00.
The total amount in
respect of future medical expenses awarded to the plaintiff is R 162
815.00.
General Damages
[13]
It is
common cause that the plaintiff sustained a gunshot wound from a
high-powered rifle to the right foot when he was inside a
police van
with two other police officers. It is common cause that he underwent
two operations to his foot. It is also evident
from the report of the
plastic and reconstructive surgeon that two further operations are
recommended to relieve the painful symptoms
experienced by the
plaintiff in his right foot.
[14]
The wound
also left some unsightly scars on his right foot and his right thigh.
Dr Annandale describes the cosmetic appearance of
the donor scar for
the skin graft as “unacceptable” whilst Dr Heymans
describes the scar as a “large unsightly
skin graft scar”.
According to the plaintiff he can no longer play soccer and work in
his garden at home due to his injured
foot.
[15]
I have
already referred to the reports of Dr Heymans and Dr Annandale.
According to Dr Heymans the movement of the right ankle is
full and
the ankle is stable. The plaintiff only complains about pain in his
foot which, according to Dr Annandale, can be alleviated
by two
further operations.
[16]
On behalf
of the plaintiff it was submitted that an award of R 180 000.00
is justified in the circumstances. On behalf of the
defendant it was
submitted that this court should not order more than R 100 000.00 in
respect of general damages.
[17]
Although
reference may be made to case law, it is trite that such cases can
only be guidance as each case will depend on its own
unique factual
basis. In this regard both parties referred the court to various
cases that may be seen as being comparable and
may be of assistance
to the court.
[1]
In
Saunders
v Union Governmen
t
[2]
a woman was wounded in both feet by a rifle shot fired by a sergeant
in the National Volunteer Brigade. The court awarded her general
damage. The equivalent rand value of this award in 2016 is an amount
of R200 000.00.
[18]
In
Minister
of Justice v Auxiliary Insurance Corporation Ltd
[3]
the plaintiff sustained a potts fracture of the ankle that resulted
in the likelihood of flat foot and an inability to partake
in sport
to any serious degree. The court awarded him general damages. The
equivalent rand value of this award in 2016 is an amount
of R158
000.00.
[19]
In
Road
Accident Fund v Azwindini Marunga
[4]
the court confirmed the dictum in
Wright
v Multilateral Vehicle Accident Fund
where the following was stated:
“
I consider that
when having regard to previous awards one must recognise that there
is a tendency for awards now to be higher than
they were in the past.
I believe this to be a natural reflection of changes in society, the
recognition of great individual freedom
and opportunity, rising
standards of living and the recognition that our awards in the past
have been significantly lower than
those in most other countries.”
[20]
In
Adams
v Cape fabricated metals Pty Ltd
[5]
the court awarded the plaintiff for a fracture of the right foot
resulting in permanent disablement and future pain and discomfort
general damage in today’s value of R 95 000.00.
[21]
In
Havenga
v Parker
[6]
the plaintiff suffered a fracture of his left elbow caused by a shot
from a .38 revolver. He suffered acute pain which subsequently
subsided. Ultimately the plaintiff suffered no permanent loss of
amenities of life. Today’s value of the ward is R 40 000.00.
[22]
In
Nxumalo
v SA Eagle Insurance
[7]
the plaintiff suffered an extensive degloving injury of his right
lower limb with severe scars on his thigh and lower leg. This
plaintiff also suffered a permanent deformity disability with
disfigurement of his knee and upper leg and suffered loss of mobility
with impairment of muscle power. Today’s value of the ward is
R305 000.00.
[23]
Having
regard to the case law referred to, it would seem that the injuries
sustained by the plaintiff are to some extent comparable
to the
injuries sustained by the plaintiffs in the
Adams
and
Havenga
-
cases. I have also considered the report by the plastic and
reconstructive surgeon who states in his report that, although little
can be done about the appearance of the donor scar the right foot,
surgery to the foot will improve the functioning of the right
foot
and that the painful symptoms that he currently experiences in his
right foot will be improved. Although the orthopaedic surgeon
deferred to the opinion of the plastic and reconstructive surgeon, I
have taken note of the fact that in his opinion, apart from
complaints about pain and discomfort in his right foot, a full range
of movement of the right ankle and the toes of the right foot
was
possible and that in his view the patient should be treated
conservatively.
[24]
Although
the incident undoubtedly was painful to the plaintiff and although he
continues to suffer pain to date, I am of the view
that in respect of
general damages and amount of R 100,000.00 is justified in the
circumstances.
Future loss of income
[25]
The
plaintiff is a 46-year-old male. He is currently self-employed as a
hawker. He finished grade 10 and has worked as an unskilled
person in
various capacities for most of his adult life.
[26]
The GRS
Actuarial Report presented this court with two possible employment
scenarios: the first is as a hawker (as the plaintiff
currently
trades) and the second is that of a general worker.
[27]
I have
already referred to the plaintiff’s previous occupation as
patroller and thereafter as coordinator. The plaintiff confirmed
to
Mr Van Niekerk (an industrial psychologist) that he was only entitled
to work as a co-ordinator and patroller for a period of
three years.
After his contract came to an end in April 2015, he started to work
as a hawker. According to the industrial psychologist
he is of the
view, with reference to the report of the orthopaedic surgeon, that
the plaintiff’s orthopaedic symptoms should
clear up to such an
extent that he will be able to do his normal duties as a security
officer up until his normal retirement. He
also referred to the
report of Dr Allendale where it is noted that surgery (as recommended
by him) will improve the functioning
of the right foot and will
alleviate the pain symptoms. Mr Van Niekerk also referred to the
report of the occupational therapist
(Ms Caga) where it is noted that
the plaintiff has a slightly reduced inward and outward turning
movement of the right foot and
that he walks with a slight limp and
has a decrease walking speed. According to the occupational therapist
the plaintiff is suited
for sedentary to light work but notes that
his current physical problems are also associated with a weakness in
his right wrist
which is unrelated to the incident in question. It is
also noted that the plaintiff’s chances to obtain sedentary
jobs are
limited mainly due to his level of education and past work
experience.
[28]
According
to Mr Van Niekerk there is no evidence that the plaintiff’s
career thus far has been negatively impacted by the
injury sustained
particular in light of the fact that he had continued with his duties
as patroller and later as coordinator from
September 2012 until March
2015 when the contract came to an end. He concluded that it is
unlikely that the plaintiff would have
been able to secure a physical
type of work after the contract came to an end considering the
significant grip strength of deficiency
in his right hand as
supported by the occupational therapist. It should, however, again be
emphasised that the wrist deficiency
is unrelated to the incident and
cannot therefore be taken into consideration in deciding whether to
award damages for future loss
of earnings.
[29]
Mr Van
Niekerk postulates that - even disregarding the incident – the
plaintiff would have started working as a self-employed
hawker. It is
therefore the conclusion of the industrial psychologist regarding the
plaintiff’s post morbid functioning that
there is no evidence
that the incident had any restrictive impact on his functioning and
that the situation is viewed to be unchanged
from the premorbid
scenario.
[30]
I have
considered the reports of the orthopaedic surgeon, the plastic and
reconstructive surgeon, the occupational therapist and
that of the
industrial psychologist. I am particularly persuaded by the view of
the industrial psychologist that there is no evidence
that the
incident had any restrictive impact on the plaintiff’s
functioning post-accident. This conclusion is strengthened
by the
fact that the plaintiff was able to continue with his work as a
patroller. He was even later promoted to coordinator. He
worked for a
period of approximately three years after the incident. I have also
taken note of the fact that in the expert opinion
of the plastic and
reconstructive surgeon, the two surgeries proposed will improve the
function of the foot and will also relieve
the painful symptoms that
he experiences in this area. Taking all of this into account I am of
the view that the plaintiff has
not succeeded in persuading this
court that he is entitled any compensation for future loss of income.
[31]
In the
event the following order is made:
The first and second
defendants are ordered, jointly and severally, to make payment to the
plaintiff of:
31.1 The sum of is
R 162 815.00 in respect of future medical expenses;
31.2 The sum of R
100 000.00 in respect of general damages;
31.3 The reasonable
preparation, qualification and reservation fees of the following
experts:
(i)
Ms Caga
(ii)
Dr JJL Heymans
(iii)
Dr ZF Allendale
(iv)
Mr Johan Potgieter
31.4 The plaintiff’s
costs of suit.
_________________________
AC BASSON
JUDGE OF THE HIGH
COURT
Appearances:
For the
Plaintiff :
Adv C Woodrow
Instructed
by :
Nel, Van der Merwe and Smalman Inc.
For the 1
st
and 2
nd
Defendant :
Adv SJ Coetzee
Instructed
by :
The State Attorney
[1]
Protea Assurance Co Ltd v Lamb
(1971) 1 SA 530.
[2]
1947 (1) SA 100
(W).
[3]
1963 (1E8) QOD 509 (D).
[4]
[2003] 2 ALL SA 148 (SCA).
[5]
1954 (1E9) QOD 519 (C).
[6]
1993 (4E5) QOD 18 (T).
[7]
1995 4 C7B G 5-1.