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[2015] ZAKZDHC 21
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Gumede v Minister of Safety and Security (12575/2007) [2015] ZAKZDHC 21 (13 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE
NO 12575/2007
In the
matter between:
SIBONGISENI
DERRICK
GUMEDE
................................................................................
Plaintiff
and
MINISTER
OF CORRECTIONAL
SERVICES
............................................................
Defendant
JUDGMENT
NTSHANGASE
J
INTRODUCTION
[1]
The plaintiff claims R722 677.00 as damages from the defendant on the
grounds of negligence of the employees of the defendant
who, as
claimed, ‘employed and was responsible for certain servants at
the Durban Westville Prison, including prison warders,
the head of
Medium Prison and other senior management (the employees) who acted
within their scope of employment.
[2]
On 30 January 2006 the plaintiff as a prisoner was assigned a duty of
‘petrol boy’, a petrol attendant to fellow
prisoners
charged with the duty of cutting grass with brush-cutters. The
plaintiff’s claim arises from injuries he sustained
from burns
on that date in the performance of his assigned duty as a result of
the alleged negligence of the defendant’s
employees. I
shall not burden the record with detail of the alleged acts of
negligence as liability is no longer an issue
as, by order of Ploos
van Amstel J on 12 June 2013, the defendant was held ‘liable to
compensate the plaintiff for such damages
as he will be able to prove
as a result of the injuries sustained …’
[3]
The case proceeds before me on plaintiff’s quantum of damages
only in respect of future medical and ancillary expenses,
future loss of earnings, general damages for past and future pain,
shock, suffering and discomfort as well as general damages for
permanent disability, permanent loss of amenities of life and
disfigurement.
THE
MERITS
[4]
It is common cause that the plaintiff sustained 28% burns to his
right axilla, chest, thorax, both forearms and hands. The reports
of
the experts engaged by the plaintiff which bear on the plaintiff’s
claim have been accepted by the defendant except the
actuary’s
on an issue I shall later deal with.
[5]
On the aspect of future medical and ancillary expenses
Dr
LT Dumas
a specialist plastic and
reconstructive surgeon opines that the plaintiff would ‘substantially
benefit from formal contracture
release of the right axilla which
will improve mobility of the right shoulder and would also benefit by
contracture release of
the bond of tissue of the central chest.’
For future surgical interventions Dr Dumas approximates the cost of
hospitalisation
which includes theatre and anaesthesia at R50 000,
the anaesthetist’s fee at R15 000 and the surgical fee in
total
at R37 500. It translates to approximately R102 500.
[6]
In her physiotherapy assessment report on the plaintiff
Ms
G Hughes
a physiotherapist recommends
various rehabilitative interventions and approximates the financial
implications of physiotherapy in
total as R49 015.
[7]
Ms
R
Stewart
, an occupational therapist
recommends referral of the plaintiff to an occupational therapist
experienced in rehabilitation of individuals
with hand injury for
‘provision of on-site employee support through regular work
visits.’ She recommends two
strategically planned work
visits at R3 750 per visit. Post-operatively the plaintiff
will require scar remodelling
interventions to prevent re-contracture
of the axilla and central chest which would require pressure media
and hydration media.
Ms Stewart recommends an allowance of
R4 000 for provision of necessary media and follow up with the
occupational therapist.
For provision of adaptive equipment to
enhance ease of execution of physically strenuous activity, an
allowance of R3 500
is recommended for adaptive equipment and a
further R3 500 for replacements assumed in ten years’
time. For psycho-supportive
counselling and intermittent crisis
management to address the emotional/psychological
sequalae
of his injury, she recommends an allowance of ten sessions of
psycho-supporting counselling at R850 per session. Ms Stewart
also recommends appointment of a case manager to monitor and
co-ordinate the plaintiff’s rehabilitative interventions, to
act as liaison and to provide support to ensure that functional and
treatment goals are met. An allowance of R2 750
per annum
for five years is recommended.
[8]
Ms M Naude
a clinical psychologist conducted a psychological assessment of the
plaintiff to determine his emotional status after injury.
Ms
Naude described the emotional and psychological
sequalae
on the plaintiff as including a
depressed mood, anhedonia, diminished libido, impoverished sleep,
fluctuating concentration, low
energy, suicidal ideation, heart
palpitations and flashbacks. He has withdrawn from social
interactions. Ms Naude recommends
supportive psychotherapy to
treat his depression and help manage his anxiety, supportive
psychotherapeutic and life skill sessions
to support his recovery,
for four months, bi-monthly appointments for six months, i.e monthly
appointments for six months at approximately
R850 per appointment.
[9]
According to
Dr V Moodley
,
a specialist psychiatrist, in order to monitor the plaintiff’s
response to treatment, to optimize medication and psychotherapy,
he
will need to be followed up two weekly for the first three months and
thereafter monthly for the rest of the year. According
to this
he will engage in fifteen consultations at R850 per consultation.
[10]
Mr Gregory Whittaker
performed an actuarial calculation of the capital value of the loss
of income sustained by the plaintiff as a result of the incident
which occurred on 30 January 2006 as well as to determine the
capitalized value of the future medical and related expenses that
may
be incurred by the plaintiff as recommended by various medical and
rehabilitation experts at 1 November 2014, (the calculation
date).
[11]
In his calculation of the capitalized value of future medical and
related expenses that may be incurred by the plaintiff in
terms of
medical and rehabilitative interventions recommended by experts, Mr
Whitaker arrived at a total of R245 298.00 as
the calculation
date. I turn now to deal with the estimated loss of income.
Estimated
loss of income
[12]
As is submitted on behalf of the plaintiff, before the incident of 30
January 2006 he relied on his physical well-being to
generate
income. Post-injury tests according to Ms Stewart suggest
‘persistent physical, behavioural and functional
compromise
that cause the plaintiff to function in a diminished capacity in the
work place.’ The physical, emotional, behavioural,
cognitive
and functional
sequalae
of his injury prevent him from working at pre-morbid levels.
Whereas the plaintiff would have continued to compete for unskilled
employment, post-injury ‘(he) is no longer deemed suited to
unskilled work of moderate to heavy strength demands’.
Ms
Stewart points to the negative social stigma attached to visible
disfigurement, the high level of competition for unskilled
work, the
scarcity of work of unskilled employment of light strength demands
and the plaintiff’s past criminal record as
factors which
minimise his prospects of employment and which suggest his
well-placement in his present enterprise of selling fruit,
vegetable
and other commodities from home, which, according to the plaintiff
yields an income of approximately R80 to R100 per
day.
[13]
In the process of computation of the plaintiff’s loss of
income, Mr Whitaker’s actuarial calculation applied a
contingency deduction of 25% and 40% respectively on the pre-accident
and the post-accident earnings in terms of Ms Stewart’s
recommendation for an application of a slightly higher than normal
contingency. He arrived at a net loss of R77 379.
[14]
Mr Whitaker’s calculation in regard to loss of income was
challenged on the grounds of variance between the testimony
of the
plaintiff in which he said his income was R2000 per month when, to Mr
Whitaker he said his income at NMI [‘Mercedes
Benz’] was
R30 000 per annum and caused Mr Whitaker to base his
calculations on an unreliable figure of R30 000.
In a plausible
explanation, as I understood it, the plaintiff states that Mr
Whitaker based his calculations on his gross income;
R2 000 per
month he referred to in his testimony was his net income after
deductions. I pause here to state that this
efficiently
explains the apparent variance.
General
damages for past and future pain, shock, suffering and discomfort
[15]
In making the assessment I have had regard to the duration and
intensity of the pain and the suffering experienced and to be
undergone by the plaintiff. It includes both physical and
mental pain and suffering of the past and future – as a direct
consequence of the infliction of the injuries as well as the pain and
suffering associated with surgical operations. (Ms
Hughes
recommends surgical release of scar contracture to enhance mobility).
[16]
As at the time of infliction of the injuries by the fire, the
intensity of the associate pain, the shock and discomfort are
imaginable. According to the plaintiff his life of pain
continued without assistance in the prison where he was kept until
his wounds became septic. He states that he was subsequently
hospitalised at King Edward VIII Hospital and at St Aiden’s
Hospital until March 2006. (According to Ms Hughes he was
admitted to Westville Hospital and then
immediately
transferred to King Edward VIII Hospital where he remained for one
week.) The plaintiff states that he was subsequently referred
to a clinic where he is provided with pain killers as the only
treatment. (According to Ms Hughes the plaintiff told her
that
‘he attended the clinic in Umkomaas where they dressed and
attended to his wounds until they were healed.’) I
refer to
this as relevant in regard to the extent of assistance he received to
relieve him of pain.
He
still experiences pain in the right arm, shoulder and chest which
worsens in cold weather or prolonged use of the arm.
According
to Dr Dumas the plaintiff now has a ‘painful contracture of the
central chest.’ The plaintiff has been afflicted
by pain from
the initial injury, the repeated pain-inducing wound dressings and
the protracted healing process.
[17]
It is evident from the description, extent and location of the
injuries that the fire caused extensive pain on his body.
As
confirmed in the report of Dr Dumas he ‘presents with an
extensive area of healed burn scars of the anterior aspect of
the
chest and the anterior aspect of the trunk overlying the abdominal
wall. It would appear that the extent and depth of
the burn
wounds sustained was deeper on the right hand side of the chest wall
with more scarring on the right axilla, right chest
and central
chest.’ Dr Dumas also states that ‘there is more scarring
on the right axilla, right chest and central
chest.’
[18]
Cognizance must be taken of the future experiences of pain which will
attend surgical operations and the discomfort from future
prolonged
contemplated medical and rehabilitative interventions.
[19]
On the aspect of pain Ms Stewart states:
‘
Given
the circumstances under which his injury occurred, the less than
sympathetic environment in which he found himself during
his recovery
and the seemingly lengthy burn wound healing thereafter (complicated
by sepsis), it is quite possible that Mr
Gumede has developed a
pain disorder. His clinical presentation is certainly
suggestive thereof, with the DPQ indicating
that the plaintiff’s
pain experience requires psychosocial interventions in order to be
comprehensively addressed.’
[20]
The plaintiff’s pain extends to the mental anguish he suffers.
According to Dr Moodley, the plaintiff’s ‘mood
appeared
low as he described the difficulties and limitations he currently
endures following his injuries.’ According
to Dr Moodley
the plaintiff described ‘features of anxiety following the
incident. He has recurrent thoughts of the
incident when alone
… He also reports experiencing nightmares resulting in
disrupted sleep patterns … He describes
constant dreams of
fire and somebody running after him. He avoids big fires in his
yard …”
General
damages for permanent disability, permanent loss of amenities of life
and disfigurement
[21]
One of the plaintiff’s problems as confirmed by Ms Hughes is
that ‘the right arm cannot move as it should’
and it is
weak. Ms Hughes describes the plaintiff’s mobility, gait,
balance and function as follows:
‘
His
dynamic balance is compromised. He loses his balance when
forced to turn quickly on uneven terrain or in a confined space
and
it is difficult for him to hop and turn to the right simultaneously.
He does not effectively employ the right arm for
balance and righting
reactions.’
According
to Ms Stewart ‘(n)otwithstanding further interventions,
cognizance must be taken that the right upper limb will
never be
restored to its uninjured state …’ According to Ms
Hughes ‘(the plaintiff’s right arm and
therefore also his
bilateral upper limb functions is permanently curtailed, as is his
ability to work as a manual labourer.’
[22]
The incident left him with scars. As described by Ms Stewart
‘(a) large burn scar is evident over the anterior,
chest and
abdomen, extending into the right axilla …’ Considerable
body image disturbance is evident as a result of
this scarring, with
the plaintiff referring to himself as “an animal.” In
regard to social
sequalae
Ms Naude states that ‘(the plaintiff) has withdrawn form social
interactions and prefers to stay at home with his fiancé.’
As summarised by Ms Stewart, bathing and dressing now present
problems. The plaintiff has difficulty reaching overhead to
wash his back. He has disturbed sleep patterns with scars itching in
summer months. He now finds it difficult to perform
physically
strenuous household tasks of painting, raking sweeping the yard and
slashing due to upper limb pain. His sporting
activities are
curtailed. On the emotional and psychological
sequalae
Ms Stewart as did Ms Naude notes that the plaintiff presents with a
depressed mood, anhedonia, diminished libido, impoverished
sleep,
fluctuating concentration, low energy, suicidal ideation heart
palpitations and flashbacks.
[23]
Ms Stewart found the plaintiff apathetic, withdrawn and lacking in
energy and conveying a sense of helplessness. She
quotes him as
saying:
“
I
am sick … my right arm is finished … the arm is useless
and can’t do anything.”
Testing,
according to Ms Stewart ‘revealed a strained relationship
between the plaintiff and his fiancé Mpumezile.
While
(the plaintiff) was passive, submissive and emasculated, Mpumezile
appeared angry, frustrated, fatigued and “fed-up.”
The
lack of sexual intimacy has also strained their relationship.
[24]
The burns as earlier indicated have left extensive disfigurement in
the form of scars over the plaintiff’s right upper
arm, axilla,
chest and thorax as well as on the lower arms and hands. ‘There
is an extensive sear spanning the anterior
right upper arm and
extending across the chest and abdomen to past the midline on the
left (measures approximately 9 x 26 x 30cm)’
as per assessment
report of Ms Hughes. Such scar would be visible unless
cautiously covered by clothing, as would be the
scars on the lower
arms and hands. Ms Stewart refers to ‘negative social
stigma attached to visible disfigurement’.
The plaintiff’s
loss in this regard would be an aesthetic one.
[25]
In order to establish his claim on the various heads the plaintiff
testified as the only witness. There was no meaningful challenge
to
his testimony. No witness was called by the defendant.
[26]
Plaintiff’s counsel referred me to various cases with past
awards for comparative purposes. I have taken account
of past
awards in comparable cases including those to which I was referred by
counsel to serve as a guide in evaluating, and expressing,
in terms
of money, what would serve as a reasonable award under the various
heads of the plaintiff’s claim. The plaintiff
has
succeeded in proving claims for damages under the various heads to
the extent which reflects in my order which follows.
THE
ORDER
[29]
Having taken all factors into account, the defendant is ordered to
pay to the plaintiff the sum of R622 677 made up as follows:
1.
Future medical and ancillary expenses
R245 298.00
2.
Future loss of earnings
R 77 379.00
3.
General damages
R300 000.00
4.
Costs of suit.
DATE
OF HEARING: 11 February 2015
DATE
OF JUDGMENT: 13 March 2015
FOR THE APPELLANTS: Adv M Sibisi, instructed by
Tomlinson Mnguni and James
FOR THE RESPONDENT: Adv N Z Khuzwayo,
instructed by The State Attorney: KwaZulu-Natal