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2012
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[2012] ZAKZDHC 19
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Walters v Minister of Safety and Security (7397/2001) [2012] ZAKZDHC 19 (12 April 2012)
IN
THE KWAZULU-NATAL HIGH COURT, DURBAN
REPUBLIC
OF SOUTH AFRICA
CASE
NO : 7397/2001
In
the matter between:
AVRILL
ELIZABETH WALTERS
…............................................
Plaintiff
and
THE
MINISTER OF SAFETY & SECURITY
….......................
Defendant
_____________________________________________________
J U D G M E N T
K
PILLAY J
[1] The Plaintiff, Avrill
Elizabeth Walters, an adult female accountant, instituted action
against the Defendant, the Minister of
Safety & Security for
damages arising out of the death of her husband, Michael John Walters
(the deceased) who was arrested
and detained for drunkenness. The
deceased committed suicide whilst in police custody.
[2] The action was
defended by the Defendant.
[3] Judgment was given in
favour of the Plaintiff as follows:
“
Defendant
is held liable for such damages as the Plaintiff may prove or is
agreed upon, together with costs.”
[4] The parties could not
reach agreement on the quantum of the Plaintiff’s damages. This
necessitated the Plaintiff having
to adduce evidence to prove her
claim.
[5] The Plaintiff’s
Particulars of Claim in relation to quantum was amended on numerous
occasions without any objection from
the Defendant.
[6] The final claim is as
follows:
(a) Loss of support R1
980 159.40
(b) General Damages R 200
000.00
(c) Funeral costs R 5
001.67
(d) Future medical
expenses R 120 349.00
[7] In paragraph 13 of
the Particulars of Claim the Plaintiff alleged that as a result of
the deceased’s death, she suffered
shock, anxiety, emotional
and psychological suffering and feelings of guilt.
[8] However, this
paragraph was subsequently deleted on amendment and replaced with one
where the nature of the sequelae she suffered
was more
particularised, as follows:
“
As
a result of the aforegoing the Plaintiff has suffered
(a) Mood disorder
(depression);
(b) Post traumatic
stress disorder;
(c) Feelings of
hopelessness;
(d) Phobic response
behaviour to members of the South African Police Services;
(e) Occupational
problems;
(f) Self image and
body image disturbances;
(g) Neuro
Psychological deficits of functionary aetiology;
(h) The need for
ongoing psychological treatment.”
[9] It became clear that
Plaintiff had now widened the ambit of her claim to include a claim
for loss of income/earning capacity.
After I queried exactly what her
claim was, the Plaintiff elected to proceed with her claim for loss
of support only.
[10] As a result thereof,
the parties agreed that an updated loss of support report be compiled
by the actuary, Gerard Jacobson.
The said report was handed into
Court by consent on 2 April 2012. There was no dispute about the
actuary’s calculation. In
arriving at a final figure of R562
415 the actuary applied a 5% contingency in respect of accrued loss
and a 12.5% contingency
in respect of prospective loss. He also set
out his reasons for justifying such contingency deductions. I am of
the view that the
aforesaid contingencies are fair. The Defendant has
not challenged the actuary’s calculations.
[11] In support of her
claim, the Plaintiff testified and adduced the evidence of Dr
Schlebusch, Miss Sonia Hill and Mrs Foresfield.
[12] The Plaintiff
testified that she matriculated in 1976. She met the deceased when
she was 16 years old. They attended the same
school. The deceased was
a first year apprentice as a fitter and turner at the time.
[13] She began living
together with the deceased from the age of 19 years. They had a son
in 1978. She described herself as a straight
A student who was not
sporty. She and the deceased married in 1989. They moved down from
Benoni to Durban and settled in Bluff.
The deceased secured a job
with the Frame Group of Companies.
[14] They were happy with
the normal ups and downs associated with marriage, until their son
left home. The deceased started drinking
more heavily and had mood
swings. He would not return home and sometimes sleep for days. This
worsened to emotional abuse and destructive
behaviour like smashing
glasses and his hands against objects.
[15] This did not cause
her to lose her love and affection for him. Instead she spoke to him
about his behaviour and he then sought
psychiatric help and was
diagnosed as being bipolar.
[16] She did not know how
to deal with his emotional outbursts and destructive behaviour. On
the advice of a social worker, she
obtained a family violence
interdict and had him locked up on one occasion. She regretted doing
this as he had to be kept from
Friday to Monday until he saw a
Magistrate.
[17] On the second
occasion when he displayed the same behaviour, she called the police
but specifically told them not to arrest
him on the interdict but to
keep him locked until he sobered up. This was agreed to by the police
who now had come to know the
deceased.
[18] The following
morning she was informed of the death of the deceased in custody. She
was shocked and needed tranquilisers.
[19] After matriculating
she worked as an invoice clerk for Indo Atlantic Airfreight and
worked herself up to Accountant Manager
with a staff of 20 to 30
under her management. After the company was liquidated she secured a
job as a credit controller then to
bad debt recoveries risk
department and then to financial controller.
[20] She eventually moved
to Investec Bank as accounts administration controller. Over the
years she managed to qualify for performance
bonuses. She enjoyed
good health until she suffered two mini strokes after her
hysterectomy. She was 38 years old at the time.
There was a time that
she continuously had glandular fever. She was put off work for three
months, and slept for those three months.
[21] On her return to
work she had to move to a less stressful department, viz the
documentation department. She worked well in
this department. Her
health also improved.
[22] Apart from this
medical ailment, she suffered mild depression for which she sought
psychiatric help and was put on mild anti
depressants for six weeks.
This was before her husband’s demise.
[23] Her son emigrated.
Her father died during one of her visits to her son. She had looked
after him after he had had brain surgery.
She took his death badly as
they were extremely close. Her husband died nine months later.
[24] During
cross-examination she stated that there was a bond of R80 000.00
outstanding on the home in Bluff she had shared with
the deceased.
She borrowed against the bond to survive as her severance package
from Investec Bank was not enough for her to live
on. The property is
now valued at R75 000.00.
[25] At some point her
brother lived with her. In terms of the deceased’s will, she
has her ½ share plus a usufruct
on their home until her death,
whereafter her husband’s share devolves upon his son. Her
brother who is younger than her
is an alcoholic.
[26] She has been seeking
work but has not had any response. It emerged that she had
pharyngitis on an ongoing basis. She also dislocated
her vertebra for
which she requires physiotherapy. She conceded that she has various
medical ailments throughout her life time.
[27] The deceased’s
drinking commenced after her son left home. She got an interdict to
try and help the deceased and on advice
of a social worker. His
drinking made her anxious. After her husband’s death, she did
get support from a close friend. She
had to wait for her son to
return from the United Kingdom and for an autopsy to be performed
before funeral arrangements could
be made. In the meantime, she
returned to work.
[28] She conceded that it
was unlikely that persons in her position at Investec would rise to
higher echelons. She was assessed
for performance before 2000. This
continued into 2001, 2002 and 2003 up until 2006. Her last assessment
was in 2006. These were
written assessments. In 2000, it was
established that no formal appraisal was in fact done. At beginning
of March 2001 she assumed
the position of Investment Accountant. She
set herself deadlines and met all of those.
[29] For the 2001/2002
year , she received a bonus of R18 000.00. In fact she stated that as
far as she could recall, she received
a bonus every year. In the
years 2004 and 2005, she believed she received R8 000.00 as a bonus.
It was less than normal as her
work had deteriorated. In 2006, her
bonus had dropped to R5 000.00.
[30] In 2007, she took
three months off, due to episodes of depression. At the time she had
not been having any conflicts with co-employees.
She received multi
purpose treatment at Westville Hospital, administered through her
psychiatrist Dr Pillay who collaborated with
her GP Dr Eric Meltzer.
[31] She admitted that
her brother’s drinking also contributed to her stress but not
significantly. She could not say what
triggered her depression.
Investec paid her R5000.00 towards her funeral expenses. She agreed
to part ways with Investec Bank.
She was paid out R510 000.00 which
she had to reinvest because of tax implications. Her post traumatic
stress order began in 2003.
[32] Two experts
testified and reports handed in with regard to the effect the
deceased’s death in custody, and the manner
thereof has had on
the Plaintiff.
[33] More particularly,
Professor Laurens Schlebush testified that he is a Professor,
employed as the Head of Department of Behavioural
Medicine at the
Nelson Mandela School of Medicine at UKZN. His expertise is not in
issue. He consulted with the Plaintiff on 3
June 2004 and on 29 June
2004.
[34] The purpose of his
assessment was to determine the psychological effects on the
Plaintiff of the arrest and death of her husband,
who had committed
suicide in custody on 15 July 2001. He conducted a battery of tests.
He found,
inter alia,
that she was psychologically distressed;
that she felt guilt and was overcome by the sudden and traumatic
nature of his unexpected
death.
[35] He found that she
was a high achiever, who had acquired four credits towards her
banking qualification. After the death of
her husband, she was unable
to complete the course, as she could not focus or study due to
depression.
[36] He found that before
her husband’s death, she was a fairly well adjusted person with
lost of friends, and interesting
hobbies, like antiques collection,
glass work, fabric painting and spiritual and natural healing. All
these hobbies came to a halt
after the death of her husband, as she
started feeling socially embarrassed because of the guilt she bore.
[37] She developed a
phobia for policemen and people in uniform. She goes into a state of
panic when she hears a siren and every
time she sees a policeman she
expects them to be bearers of bad news.
[38] Although she was
suicidal, she would not act on it. She had sleep disturbances, loss
of energy and drive, poor concentration
and poor work motivation. He
found her to be significantly depressed, physically and
psychologically. He found that she was not
malingering. She also had
constant flashbacks. Cross-examined, it was elicited that despite
subsequent treatment, the Plaintiff
had not improved but in fact
deteriorated.
[39] In light of the fact
that the Plaintiff elected to forego her claim for loss of
income/earning capacity, it is not necessary
to set out the evidence
of Sonia Hill, an Industrial Psychologist who was required to furnish
an opinion on the Plaintiff’s
vocational potential and to
determine potential loss of future income. Miss Foresfield related to
Plaintiff’s work ethic.
It is on record.
[40]
It is well established that the Court has a wide discretion in making
an appropriate award for general damages. Although comparisons
of
awards in other cases may offer a useful guide, such comparisons are
not decisive. The following dicta in
Protea
Assurance Company Limited v Lam
is
instructive
1
:
“
It
should be emphasised, however, that the process of comparison does
not take the form of meticulous examination of awards made
in other
cases in order to fix the amount of compensation. Nor should the
process be allowed so to dominate the enquiry as to become
a fetter
upon the Court’s general discretion in such matter.”
[41] I am satisfied, on
the evidence, presented that the psychological sequelae suffered by
the Plaintiff was extensive. In my view
this was a direct consequence
of the manner of the death of her husband in the Defendant’s
custody. I therefore consider
that an award of R185 000.00 is a fair
and reasonable award for general damages.
[42] I accordingly grant
judgment in favour of the Plaintiff as follows:
(1) That the Defendant is
to pay the Plaintiff the sum of R747 415,00 being R562 415.00 for
loss of support and R185 000.00 for
general damages. (This amount was
arrived at after the contingency deductions as aforesaid)
(2) That the aforesaid
capital sum is to be paid to the Plaintiff’s attorney of record
on or before 30
th
April 2012.
(3) That the Defendant is
to pay the Plaintiff’s costs of suit, as taxed or agreed to
date of Judgment with such costs to
be included inter alia the
following:
3.1 the qualifying fees,
costs of medico-legal reports and costs of consultation of the
following expert witnesses with Plaintiff’s
legal
representatives including Counsel:
3.1.1 Professor L
Schlebusch-Clinical Psychologist;
3.1.2 Sonia
Hill-Industrial Psychologist;
3.1.3 Gerard Jacobson –
Actuary;
3.2 The appearance fees
of Professor Schlebusch and Sonia Hill not subject to the limitation
provided for in Government Gazette
No R394 dated the 11 April 2008.
3.3 The Actuarial Reports
of G Jacobson.
3.4 The
additional/supplementary expert reports of Professor Schlebusch.
That in the event that
the costs as aforesaid are not agreed the Plaintiff shall:
4.1 Give Defendant’s
attorney of record notice of the intended taxation of costs; and
4.2 Afford the Defendant
21 (twenty one) court days to make payment of the costs as taxed.
___________________
K PILLAY J
Date of Judgment : 12 April 2012
Plaintiff’s Counsel : Advocate R S Front
Instructed by : JOHAN JOOSTE & COMPANY
Plaintiff’s Attorneys
Groun d Floor
Masonic Grove Chambers
32 Masonic Grove
DURBAN
Ref : 01/W202/001/SJ
Defendant’s Counsel : Advocate J Nxusani
Instructed by : The State Attorney
(KwaZulu-Natal)
Defendant’s Attorneys
Metropolitan Life Building
7
th
Floor, Room 15
Smith Street
Durban
Ref : 12/005553/2001/W/P12
C Bailey/sp)
1
1971(1)
SA 530 (A) at 535 H-536 A