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[2012] ZAGPPHC 343
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Skhosana obo S.S v Members of the Executive Council for the Department of Education, Mpumalanga (21713/2008) [2012] ZAGPPHC 343 (10 December 2012)
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NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORHT
GAUTENG HIGH COURT, PRETORIA)
CASE
NO: 21713/2008
DATE:10/12/2012
In
the matter between:
ONICA
V SKHOSANA obo
SS
.................................................................................
Plaintiff
and
THE
MEMBERS OF THE EXECUTIVE
COUNCIL
FOR THE DEPARTMENT OF EDUCATION,
MPUMALANGA
...........................................................................................................
Defendant
JUDGMENT
MAKGOKA,
J:
[1]
In this matter I am called upon to determine the quantum of general
damages in respect of the plaintiff’s minor son, S.
The
liability has been determined by this court (Matojane J), in favour
of the plaintiff. That determination was confirmed by the
Supreme
Court of Appeal in an appeal to it by the defendant. See MEC for
Education: Mpumalanga v Skhosana
[2012] ZASCA 63
(17 May 2012).
[2]
S had sustained injuries on 15 August 2007 when a device that he was
playing with, exploded, causing injuries to his forearms,
stomach and
legs. The injuries were mainly lacerations to his abdomen, both
thighs and both firearms. He was then a twelve-year
old, grade 5
pupil. He was taken to hospital, where the lacerations were sutured.
The incident took place on the grounds of a primary
school in
Mpumalanga, hence the Department was held vicariously liable.
[3]
Two medico-legal reports prepared on behalf of the plaintiff; were
handed in by agreement. The reports were prepared by Dr.
ZE Annandale
(plastic and reconstructive surgeon); and Dr. V. Ferreira
(psychiatrist). S also testified, during which he confirmed
the key
findings of the experts as regards the impact the incident had on his
life.
[4]
According to Dr. Annandale, the lacerations are completely healed,
although S is left with permanent scars, which have widened
and are
also painful. The pain is serious enough to justify the use of
analgesics. Dr. Annandale is of the opinion that radiotherapy
can
assist to prevent repeated pain symptoms. S reportedly also developed
sinusitis problem after the incident.
[5]
In his report, Dr. Ferreira sets out the following psychiatric
complaints by S: anxiety, causing him to avoid the place where
the
incident happened; irritability; increased startle reaction; initial
nightmares and flashbacks about the explosion, which have
decreased
significantly since, currently occurring only occasionally; a
periodic depressed mood, mainly as a reaction to his fellow
pupils
making fun of his scars. He is also called a ‘bomb boy’
and finds this embarrassing and demeaning; his behaviour
had also
changed and he became irritable and short tempered. His mother
describes his behaviour as ‘cheeky’, following
the
incident.
[6]
Dr. Ferreira also notes that S experiences pain associated with
exercise. He previously used to enjoy physical activities like
riding
on his bicycle, but currently pain over the affected areas, as well
as tiredness, inhibits him from doing this as often
as before.
However, he is still a member of the school choir.
[7]
Before the incident S socialised well and had many friends, but since
the incident he became socially withdrawn. He currently
only has a
few friends. He enjoys watching television, playing television games
and reading activities that he can enjoy on his
own.
[8]
It is on the basis of all these factors that I must determine the
amount of general damages.
GENERAL
DAMAGES
Purpose,
approach and general principles
[9]
I turn now to general damages. Arriving at an appropriate award for
general damages is never an easy task. The difficulty in
placing
monetary value on pain and suffering, loss of amenities of life and
disability, is described by Gauntlett, the learned
author in Corbett,
The Quantum of Damages vol 1, 4ed, at pages 4-5 as follows:
“
In
determining the award of damages to be made under the heading general
damages there are of course no scales upon which one can
weigh things
like pain and suffering and loss of amenities of life, nor is there a
relationship between either of them and money
which makes it possible
to express that in terms of money with any approach to certainty. The
broadest general consideration and
the figure arrived at must
necessarily be uncertain,
depending
upon the judge’s views of what is fair in all circumstances of
the case. (Sandler v Wholesale Coal Suppliers Ltd
1941 AD 194
at
199.)”
[10]
The purpose of awarding general damages is to compensate a claimant
for the pain, suffering, discomfort and loss of amenities
of life to
which he or she has been subjected as a result of the particular
injuries that were sustained. Although the determination
of an
appropriate amount in this regard is largely a matter of discretion,
some guidance can be obtained by having regard to previous
awards
made in comparable cases. Past awards in comparable cases afford a
useful guide in determination of general damages.
[11]
Awards in previous cases can, however, only offer broad and general
guidelines in view of the differences that inevitably arise
in each
case. The process of comparison is not a meticulous examination of
awards, and should not interfere upon the court’s
general
discretion (Protea Assurance v Lamb
1971 (1) SA 530
(A) at
535H-536A). The previous awards should obviously be updated to
present day values in order to properly serve as a basis
for
comparison. In making such an adjustment, one should be mindful of
the fact that, whereas it is permissible to have regard
to the
general depreciation in the value of our currency by utilising the
consumer price index (CPI) a slavish adherence thereto
may lead to
undesirable results.
[12]
Mr. Du Plessis, counsel for the plaintiff, submitted that an amount
of R 125 000 would be an appropriate compensation for general
damages. Counsel made these submissions with reference to the
following cases: Mangwana v Du Toit and Another 1982 (3) C &
B
342 (A); Lennox Residential Hotel v Buys and Another 1978 (2) C &
B 836 (C); Majiet v Santam Ltd 1997 (4) C & B K3-1
(C) and
Ciinton-Parker v Administrator Tvl
1996 (2) SA 37
(T). Mr. Nonyane,
counsel for the defendant, on the other hand, contended that the
nature and sequelae of the injuries warrant
no more than R 50 000 in
respect of general damages.
[13]
I must make an award that is just, equitable and fair to both sides.
S has sustained multiple wounds as fully described above.
It is clear
form the medical reports, and from his own evidence, that he suffered
some considerable pair and suffering. The incident
has left him with
permanent scars, which are unsightly and embarrassing. He has become
subject of ridicule and taunts by his peers.
The scars have left him
with significant psychological inhibitions such as low self-esteem.
For example, he no longer confident
of participating in swimming
since he is conscious of the scars, were he to take off his shirt. He
is also no longer confident
of wearing short trousers, for fear of
exposing the scars. He has had to endure being teased as a ‘bomb
boy’. The incident
took place when S was just 12 years old. It
must caused him an enormous emotional shock. The incident was also
widely publicised,
with news articles appearing in the Sowetan
newspaper, a national publication with wide circulation.
[14]
Taking into account all the relevant factors, including the nature
and extent of the injuries and their sequelae, the awards
in
comparable cases and the declining value of the currency, I am of the
view that an amount of R85 000 would be appropriate.
[15]
The amounts in respect of past medical and hospital expenses; future
medical and hospital treatment, have been agreed upon.
In the result
the total amount payable is R218 764.15 made up as follows:
Past
medical and hospital expenses: R 2 309.48
Future
medical (as per Dr. Ferreira): R 46 054.67
Future
medical (as per Dr. Annandale): R 85 400.00
General
damages: R 85 000.00
TOTAL
R 218 764.15
[16]
In the result I make the following order:
1.
The defendant is ordered topayto the plaintiff an amount of R218
764.15
2.
The defendant is ordered to pay the costs related to the preparation
and finalization of the medico-legal reports of Dr V Ferreira
and Dr
ZF Annandale;
3.
The defendant is ordered to pay the qualifying and reservation fees
of Dr V Ferreira and Dr ZF Annandale;
4.
The defendant is ordered to pay the Plaintiff’s High Court
costs, on a party and party scale;
5.
The defendant will deposit all of the aforementioned amounts into the
trust account of the plaintiff’s attorney, the account
details
of which are as follows:
Olof
Joubert Trust,
Account
Number …..2609,
Rand
Merchant Bank,
Brooklyn
Branch,
Branch
code: 22-20-26,
Reference:
JS0170
6.
It is recorded that the minor child’s claim for general damages
has been argued in open court and that the judgment related
to this
particular damages component has been reserved until the 10
th
of December 2012.
6.1
The plaintiffs attorney, Mr. Olof Joubert, shall cause a trust to be
established in favour of the minor child, in accordance
with the
provisions of the Trust Property Control Act, No 57 of 1988, as
amended (“the Trust Property Control Act”),
within a
reasonable period after granting of this order. The balance of the
claim amount, after deduction of the legal costs, shall
be deposited
into the said trust’s account;
6.2
The trust instrument, contemplated in paragraph 9.1 above, shall make
provision for, among others, the following:
6.2.1
The minor child to be the sole beneficiary;
6.2.2
Mr Gert Kruger of Absa Trust, situated at 28
th
Floor, Volkskas Centre, 230 Van der Walt Street, Pretoria, to be
appointed as trustee to the minor child and he is to provide security
to the satisfaction of the Master of the High Court for due
fulfilment of his obligations in terms of the Trust Property Control
Act;
.2.3
That the trustee be granted the following powers:
6.2.3.1
to receive, take care of and administer all of the assets of the
minor child, including the amount paid by the defendant
in this
matter to the minor child;
6.2.3.2
to carry on or discontinue, subject to any law which may be
applicable, any trade, business or undertaking of the minor
child;
6.2.3.3
to acquire, whether by purchase or otherwise, any property, movable
or immovable, for the benefit of the minor child;
6.2.3.4
to incur expenditure in respect of the improvement of any property of
the minor child, by means of building or otherwise;
6.2.3.5
to invest or re-invest any monies of the minor child which become
available from time to time for investment and which are
not
immediately required for the purposes, defined in Section 82(c) of
the Administration of Estates Act, No 66 of 1965 (as amended)
(“the
Administration of Estates Act&rdquo
;);
6.2.3.6
to institute or defend proceedings which may be necessary for the due
and proper administration of the minor child’s
estate;
6.2.3.7
the duty of the trustee to disclose any personal interest in any
transaction involving the trust property;
6.2.3.8
the exclusion of contingent rights of the beneficiary in the event of
cession, attachment or insolvency of the beneficiary,
prior to the
distribution or payment thereof by the trustee to the beneficiary;
6.2.3.9
the termination of the trust at the date on which the minor child
turns 18 years of age;
6.2.3.10
in the event of the death of the minor child, that the trust property
accruing to him shall pass to his estate;
6.2.3.11
the amendment of the trust instrument be subjected to the leave of a
court;
6.2.4
The provisions referred to in paragraph 2.2 supra shall, in
accordance
with
the provisions of the Trust Property Control Act, be subject to the
approval
of the Master of the High Court;
6.2.5
The remuneration of the trustee shall be at a rate equivalent to (and
not exceeding) that of a curator bonis as contemplated
in the
Administration of Estates Act;
TM
MAKGOKA
JUDGE
OF THE HIGH COURT
DATE
OF HEARING : 23 NOVEMBER 2012
JUDGMENT
DELIVERED : 10 DECEMBER 2012
FOR
THE PLAINTIFF : ADV JA DU PLESSIS
INSTRUCTED
BY : O JOUBERT ATTORNEY, PRETORIA
FOR
THE DEFENDANT : ADV P NONYANE
INSTRUCTED
BY : STATE ATTORNEY, PRETORIA