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[2011] ZAKZPHC 25
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Njoko v Minister of Safety and Security and Another (2011 (5) SA 512 (KZP)) [2011] ZAKZPHC 25; 1565/09 (8 June 2011)
IN
THE KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG
REPUBLIC
OF SOUTH AFRICA
Case
No :1565/09
In
the matter between :
Langalakhe
Ncengokwakhe Njoko
…...............................................................
Plaintiff
and
Minister
of Safety and Security
…...........................................................
1
st
Defendant
Sibusiso
Muziwenkosi Ngema
…...........................................................
2
nd
Defendant
Judgment
Lopes J
[1] The plaintiff is Langalakhe
Mcengokwakhe Njoko. On the 1
st
April 2005 the plaintiff,
who was then 24 years of age, was shot in the right upper arm and
right upper chest by the second defendant,
who was a police officer
acting within the course and scope of his employment with the first
defendant. As a result of being shot
the plaintiff sustained severe
injuries, and now claims for the medical expenses he will incur in
the future, general damages and
damages for past and future loss of
income.
[2] The matter came before Gorven J on
the 28
th
May 2008 and, after a very brief hearing, an
order was granted by consent that :-
the defendants are liable jointly and
severally to compensate the plaintiff for all agreed or proved
damages caused by his having
been shot by the second defendant on
the 1
st
April 2005; and
the defendants are directed jointly
and severally to pay the plaintiff’s costs relating to proof
of liability.
[3] The matter has now come before me
for determination of the quantum of the plaintiff’s damages. A
number of expert reports
were placed before me and they were
contained in bundle A. The parties were agreed that I could have
regard to the first seven
expert reports in that bundle. They were
also agreed that the reports are what they purport to be, and the
defendant accepted the
findings of the experts as contained in those
reports.
[4] Two of those experts testified on
behalf of the plaintiff. The first was Professor Willem Daniel
Francois Venter, a specialist
physician in the field of infectious
diseases, with his focus being on the treatment of persons who are
HIV positive.
[5] Professor Venter’s evidence
may be summarised as follows :
he is an associate professor in the
Department of Medical and Infectious Diseases at Johannesburg
Hospital, and is the president
of the Southern African HIV
Clinicians Society;
he has been involved in the treatment
of HIV patients for approximately 20 years and it has been his
entire focus for the last
12 years;
he has been involved in the aspects
of public health intervention, access to HIV treatments,
anti-retrovirals (“ARVs”)
and infectious diseases
treatment;
he gave an outline of the history of
the use of anti-retrovirals in South Africa. The disease was only
discovered in approximately
1980, and for the next decade treatment
revolved around the prevention of the HIV positive status, rather
than the treatment
of the disease itself. He described this
treatment as basically being palliative. ARVs only started being
used towards the end
of the 1980s with triple therapy, or highly
active anti-retroviral therapy, becoming established by the mid
1990s;
whereas before that time treatment
would buy patients a few months or a year or two, they were then
suddenly able to return to
work and play sport, etc;
an example of this was a patient
treated by Professor Venter who was very ill when the Professor
first saw her in 2000 or 2001,
she having been diagnosed as HIV
positive during 1998. She was put onto ARV treatment and completed
her eighth or ninth Comrades
Marathon last weekend;
he also referred to the case of Magic
Johnson the famous professional basketball player in the United
States of America, who returned
to professional playing as a top
athlete for a decade after receiving ARV treatment;
over the last 15 years the medication
used in the treatment of patients has improved dramatically, and
includes an enormous reduction
in the side-effects from which
patients taking the medication formerly suffered. It has got to the
point now where side-effects
are an unusual occurrence;
in addition, the first line therapy
used in South Africa is the same as that used in Europe or the
United States of America. Within
a few weeks, patients placed on the
medication feel better, they experience an increase in energy and
their skin condition improves.
Within three to six months patients
who were formerly very ill will be back on their feet. As long as
they continue to take the
medication, and follow the medical advice,
their recovery is rapid and prolonged;
there is a striking difference
between patients in South Africa and Botswana and those in America
or Europe, particularly with
regard to the social conditions
applicable to the lifestyle of the patients, their access to proper
sanitation, clean water,
clinics, etc. Notwithstanding these
differences the outcome of patient treatment are similar;
the plaintiff was diagnosed with a
CD4 count of 31 during February of 2001. Patients with a low CD4
count experience more difficulty
with recovery for the first three
to six months. In the case of the plaintiff he was recovering well
within six to eight weeks,
and has improved since then. He has
gained weight and described his energy levels to Professor Venter as
being very good. Patients
who do badly will be very ill at the
beginning of the programme, but most of them will pull through,
albeit taking more time;
the CD4 count of a normal person will
range from approximately 700 to 2000. The virus causes the patient’s
CD4 count to
drop with an increased risk of contracting tuberculosis
or pneumonia until the CD4 count reaches about 200. Below that
Aids-related
illnesses become apparent, and below a CD4 count of 50
a patient is at risk of acquiring the worst Aids-related illnesses;
although the CD4 count is an
important predictor of patient viability, other factors are as
important in reaching a prognosis;
if the plaintiff had not been treated
with ARVs, it is most likely that he would have died within a few
months;
the biggest danger to the plaintiff
is if he should, for any reason, discontinue taking his medication;
patients who begin treatment and are
back on their feet within a month to six weeks are likely to survive
for decades. Various
models to predict life expectancy are used at
various places in the world. Data from Botswana suggests that the
outcomes in Southern
Africa are similar to those experienced in
other parts of the world depending on social support, etc;
the condition of the plaintiff, given
that he had a CD4 count of 31, is as good as it could be. His CD4
count would be tested
every six months, and the various mathematical
models would suggest that the plaintiff’s life expectancy
would be between
30 and 40 years. These mathematical models include
the other vagaries of life such as social class, gender, access to
drugs,
sexual orientation, etc;
Professor Venter was of the view that
the fact that the plaintiff smoked between two and three cigarettes
a day would not impact
significantly on the plaintiff’s life
expectancy. He said smoking was never a good thing, and should
always actively be
discouraged, but he described the plaintiff’s
level of smoking as recreational. He did caution that if the
plaintiff increased
his cigarette consumption to, for example,
between 20 and 30 cigarettes a day, that would cause problems;
Although there is a likelihood the
plaintiff could acquire tuberculosis, that disease responds well to
treatment in KwaZulu-Natal
with 95% of patients recovering; and
great importance should be placed on
the mood and physical appearance of a patient. The plaintiff was
interviewed by Professor
Venter prior to the hearing, and he was
described by Professor Venter as a happy person who understood the
need to take his medication
and continue his treatment;
with regard to the percentage of
patients who discontinued their treatment after starting, Professor
Venter said that in his clinic
approximately 18% are lost to the
system after approximately two years. This is because a third die, a
third move elsewhere and
a third lose contact with the clinic. Some
patients discontinue their medication because they feel healthy and
do not see a need
to continue it, whilst other are advised by
traditional healers or church movements to discontinue their
treatment. Men also
tend to discontinue their treatment more than
women;
Professor Venter was of the view that
the plaintiff had overcome most of the hurdles he would encounter,
to be where he already
is. As he was gaining weight and looking and
feeling well there was no need to be concerned, because it is very
likely that in
the plaintiff’s condition he was taking his
ARVs. Professor Venter was also of the view that there was no
probability that
the plaintiff would increase his cigarette
consumption.
[6] The other witness to testify was
Philip Hallisey Hellig who qualified as an actuary in 1974, was a
member of the Actuarial Society
of South Africa and a fellow of the
Faculty of Actuaries in Scotland. He initially worked in the
insurance industry and has been
doing quantum of damages cases from
1994, since then he has been involved in approximately 2000 cases
involving loss of support
and loss of income. He referred to the
figures in his expert report, indicating that he had left out the
contingencies to be applied.
He felt that the contingencies with
regard to past loss of earnings could reasonably be set at 5% based
on the half a percent per
year formula used by Robert J Koch in his
work ‘The Quantum Yearbook’ (2011) 104.
[7] On that basis the past loss of
earnings would have been approximately 3%. He thought this was
appropriate in view of the plaintiff’s
location, the employment
industry in which he was involved, etc.
[8] Mr Hellig opined that with regard
to the plaintiff’s future loss of earnings, based on Koch’s
calculation, the starting
point for contingencies would be 17.5%. On
the basis that the plaintiff’s working life expectancy could be
affected by his
HIV positive condition, a further contingency of
approximately 5% should be added to that figure. He expressed the
view that the
mortality tables on which he worked were fairly
conservative.
[9] Mr Hellig pointed out that the
figure for which he made allowance in his calculation of the
plaintiff’s future loss of
earnings of R17 562 was a disability
grant which the plaintiff would receive in the future. This should be
completely discounted
if the award to the plaintiff is to be in
excess of R410 000.
[10] That was the plaintiff’s
case. The defendant led no evidence and closed its case.
[11] Counsel were agreed that the sum
of R17 562 in respect of the disability grant for the plaintiff
should play no part in the
calculation of his estimated loss of
earnings. It was also agreed that the plaintiff had no claim for past
hospital and medical
expenses.
[12] With regard to future medical
expenses taking into consideration the future medical expenses
itemised in the expert reports,
Mr Hellig calculated that the present
cost of future medical expenses would be in the sum of R110 359. Mr
Khuzwayo
, who appeared for the defendant, could advance no
reason why that amount should not be awarded.
[13] With regard to the plaintiff’s
general damages, the following aspects are relevant :-
the plaintiff was 24 years old when
the incident occurred and is currently 30 years old;
he sustained a single gunshot wound
to his right arm and right chest;
he was taken to the Thokozane Clinic,
given first aid and transferred to Ngwelezane Hospital in a
conscious condition during which
his arm and chest were painful and
he had reduced movement and use of his right arm;
at Ngwelezane Hospital X-rays were
taken and he was referred to the orthopaedic ward where a pressure
bandage was applied. He
was seen by an occupational therapist, and
at that stage could actively extend his wrist through the full range
of movement.
Although he had full passive flexion and extension of
all fingers, he was left with a claw-like appearance of the fingers
with
active finger extension, reduced flexion and extension of all
fingers, poor thumb flexion and adduction, but good extension. He
experienced reduced median and ulna sensation. He was discharged
home on the 7
th
April 2005 with a splint and a
recommendation for physiotherapy and occupational therapy to follow
up;
on the 28
th
April he was
seen as an outpatient and had further follow-ups during 2005 and
2006. During that time he experienced a loss of
sensation and pain,
together with contractions of his hand, and painkillers were
prescribed. He continued to attend at the clinic
every three months
and received pain medication, taking about six painkillers a day. By
December of 2007 he complained of weakness
of the right arm
especially grip and hand movements, his right hand remained in a
clawed position, and he had constant pain in
the arm and shoulder
with a reduced range of movement in his right shoulder. In addition
the pain was worse in cold weather or
with any activity;
his treatment was conservative with
dressings and wound care with physiotherapy and occupational
therapy. The soft tissue healing
was uneventful but pain and
restriction of the right arm and hand movement persisted;
on the 9
th
May 2011 he was
again seen by Dr Kelbe the neurologist who recorded complaints of
pain in the plaintiff’s right arm which
is present daily and
constantly. The pain starts in his shoulder and involves the whole
arm and hand and in the joints and muscles
it is worse if he tries
to use his arm. His right hand remains clawed even when sleeping,
and is largely useless. He continues
to use approximately four
analgesics per day. Dr Kelbe recorded that the plaintiff had been
tested HIV positive during February
2011 and was now on ARV
treatment. Dr Kelbe’s findings support evidence of impaired
nerve function in both the median and
ulna nerves of the right hand
with mild slowing and reduced amplitudes. Dr Kelbe regards his
injuries as permanent and irreversible;
it is important to note that Dr Kelbe
is of the view that the plaintiff’s disability is strongly
influenced by a significant
psychogenic overlay and exaggeration,
and that it is accordingly difficult to judge the plaintiff’s
subjective pain. This
behaviour has become so deeply ingrained that
it will be difficult to treat and adds to the overall disability
experienced by
the plaintiff;
the plaintiff formerly engaged in
body building and long distance running on a recreational basis, in
addition to playing football.
He is no longer able to participate in
these activities and he finds it both tiring and painful to run;
the disability which the plaintiff
experiences in his right hand were set out in the medico-legal
report by the occupational therapist
Ms M Combrinck. Although he is
able to dress and undress himself independently the plaintiff has
problems with buttons and shoelaces
which are negotiated with his
left hand while his right hand is used as a stabiliser only. He is
able to eat functionally with
a spoon or fork, but cannot eat with a
knife and fork due to the lack of powerful prehesion grip in the
right hand. He is left
with a difficulty washing his left arm,
shoulder and upper torso because he cannot hold the washing cloth or
soap with his right
hand. He is assisted in this regard by his wife;
he is no longer able to do tasks
which he formerly took for granted in and around the house and is no
longer able to play with
and interact with his children on the basis
he could do before;
the plaintiff had left school in
Grade 11 without completing that year. He had engaged in temporary
employment until 2004 when
he had become employed as a security
guard after qualifying himself in that field. He is no longer able
to perform the functions
required of a security guard and is no
longer employable in that industry;
it is the opinion of all the experts
that the plaintiff will need to learn to perform tasks with his left
hand. He has already
made some progress towards this end by learning
to write to some extent with his left hand; and
his life expectancy is in no way
affected by the orthopaedic injury which he suffered.
[14] Various cases were cited to me by
both counsel for the plaintiff and the defendant with regard to the
quantum of general damages
which should be awarded to the plaintiff.
It is notoriously difficult to compare cases in attempting to arrive
at a proper award
of general damages, particularly where in many
cases, the plaintiffs have suffered multiple injuries which are not
identical to
the case being considered.
[15] Ms
Bezuidenhout
who
appeared for the plaintiff, referred me to
Holland v Bendicks
1954 Volume 1 of Corbett & Buchanan : The Quantum of Damages in
Bodily and Fatal Injury Cases at page 536 (“Corbett &
Buchanan”). It is difficult to reconcile this case with the
present one because the plaintiff in
Holland
suffered
fractures of five ribs, a clavicle and all the fingers of her right
hand. She underwent two operations and contracted
pleurisy. Her hand
was 40% disabled and gravely disfigured. For pain and suffering she
was awarded £400, a figure which equates
to R147 000 in today’s
terms.
[16] Ms
Bezuidenhout
also
referred me to
Newhouse v The Road Accident Fund
2003 (5D5)
QOD 1 (AF). This matter concerned an arbitration award where a
married woman was injured, losing the function of her
right hand. She
was awarded general damages of R180 000. In today’s terms the
award to her would be worth R280 000.
[17] Mr
Khuzwayo
emphasised the
general difficulty of equating cases with multiple injuries to the
present matter. He referred me to
Nel v Sun Insurance
1950 (1)
Corbett & Buchanan at page 362. As a result of a motor collision
the plaintiff suffered fractures to her right wrist
and fingers and a
disorganisation of the carpal bones. The plaintiff developed
osteo-distrophy. The wrist had to be fixed in a
permanent position.
The plaintiff would have to rely mainly on his left hand and to be
become left-handed. For pain and suffering,
loss of the amenities of
life and disfigurement the plaintiff was awarded £250, a figure
which equates to R45 000 in today’s
terms.
[18] In
Pretorius v Ocean Accident
& Guarantee Corporation, Ltd
1951 (1) Corbett & Buchanan
367 the plaintiff’s wife was injured in a motor collision
suffering a fracture of the fifth
metacarpal of her left hand
together with a chip fracture of her fourth finger, a hairline
fracture of the bone of the fourth metacarpal,
and a fracture of the
articular surface of her radius. The injuries healed but she was left
with a partial permanent disability
of the left wrist and hand
estimated at 8% by the medical witnesses. The damages which were
awarded are in today’s terms
R84 000.
[19] In
Jordan v Eagle Star
Insurance Company
1955 (1) Corbett & Buchanan 359 the
plaintiff was an elderly lady who fell from a bus, fracturing her
right wrist and rendering
her hand virtually useless. The was a
reduction because of her reduced life expectancy and she was awarded
£550 for loss
of the amenities of life and pain and suffering.
That equates to R78 000 in today’s value.
[20] Finally I was referred to
Botha
v Miodownik & Co (Pty) Limited
1966 (3) SA 82
(W). A 25 year
old electrician fell into an open hole left by a building contractor.
He sustained a serious fracture to his left
wrist necessitating two
operations. As a result he was unable to indulge in his activities of
playing rugby, engaging in gymnastics
and being a body builder. His
damages of R1 144 equate to R80 000 today.
[21] The updated value of the above
awards are all taken from Koch’s Quantum Yearbook, 2011.
Considering the injuries which
the plaintiff has suffered and
comparing his case with those referred to above insofar as I am able
to do, I would assess his general
damages as being R250 000.
[22] With regard to his past and
future loss of earnings, I would assess the contingencies for his
past loss of earnings as being
at 5%.
[23] I accept the evidence of
Professor Venter that the effect of his HIV positive status would not
have a negative effect on the
plaintiff’s life expectancy and
future loss of earnings. The plaintiff is presently 30 years old, and
if one accepts the
evidence of Professor Venter one would expect him
to live for a period of 30 or 40 more years. This would take him to
the retirement
age used by Mr Hellig in his calculations (of 65
years).
[24] Based on the normal contingencies
applied by Koch, and taking into account the possibility of a reduced
life expectancy, I
set the contingencies which should be applied to
the plaintiff’s future loss of earnings at 23%.
[25] With regard to costs, counsel
settled the terms of the order which is reflected below. They were in
agreement with the question
of costs save for the costs of Dr Herbst.
His work, unfortunately, had to be duplicated because he was no
longer available. In
those circumstances I do not believe it would be
fair to burden the defendant with those costs.
[26] In all the circumstances the
defendant is directed to pay to the plaintiff :-
1. the sum of R250 000 for general
damages;
2. the sum of R110 359 for future
medical expenses;
3. the sum of R163 534 for his past
loss of earnings;
4. the sum of R536 009 for his future
loss of earnings;
5. the costs of the action insofar as
it relates to the hearing of the quantum of the plaintiff’s
damages, and those costs
are to include the costs of the plaintiff’s
travelling and accommodation from Nkandla to Pietermaritzburg and
back as well
as the costs of the plaintiff’s experts as follows
:-
Dr Kelbe, whose costs are to include
the costs of drafting her first and second reports, her qualifying
and reservation fees;
Ms M Combrinck whose costs are to
include the costs of drafting her report and her qualifying fees;
Dr Pienaar, whose costs are to
include the costs of drafting his report, and his qualifying and
reservation fees; and
Professor W D F Venter whose costs
are to include the costs of drafting his report, his qualifying and
attendance fees.
Date of hearing : 31
st
May
2011
Date of Judgment : 8
th
June
2011
Counsel for the Plaintiff : E
Bezuidenhout (instructed by Botha’s Incorporated)
Counsel for the Defendant : T Khuzwayo
(instructed by the State Attorney)