Brief Summary

Delict — Damages — Assault by prison warders — Plaintiff sought damages for injuries sustained during an assault while an awaiting trial prisoner — The court previously found the defendant liable for damages — Plaintiff claimed R3 157 397.40, with specific amounts for past and future loss of earnings, medical expenses, and general damages — The court awarded R400 000.00 for general damages, considering the severity of injuries, permanent disability, and the impact on the plaintiff's quality of life — A 15% contingency was applied to future medical expenses, while no contingency was applied to future loss of earnings.

Comprehensive Summary

Summary of Judgment

Introduction

This was a delictual damages action in which the plaintiff sought compensation for harm suffered as a result of an assault perpetrated against him while he was in custody as an awaiting-trial prisoner at East London Medium “B” Prison (Fort Glamorgan), allegedly by prison warders employed by the defendant.

The parties were Vuyisile Dayimane (plaintiff) and the Minister of Correctional Services (defendant), sued on the basis of liability for the conduct of prison warders in the defendant’s employ.

The matter came before the Eastern Cape High Court, East London Circuit Local Division, on quantum only. The judgment records that liability (merits) had already been determined in the plaintiff’s favour by Kemp AJ, who held the defendant liable for such damages as the plaintiff could prove were caused by the assault of 16 June 2005. The proceedings before Beshe J therefore concerned the quantification of damages, including the appropriate award for general damages and the treatment of contingency deductions under certain heads of damages.

The dispute concerned compensation for the consequences of serious physical injuries, including long-term impairment and dependence, and the appropriate monetary award under multiple heads of damages, with the principal remaining contested component being general damages.

Material Facts

The court proceeded from the established fact that, on 16 June 2005, the plaintiff (then approximately 50 years old) was assaulted while an awaiting-trial prisoner at East London Medium “B” Prison by prison warders in the defendant’s employ. The merits judgment having already determined liability, the factual enquiry in this judgment was directed at the injuries sustained and their sequelae insofar as they informed the damages award.

On the day of the assault, an assessment at Free Hospital recorded the following injuries as noted by the court: a Gustilo Type 1 compound fracture of the right proximal tibia and fibula, with a small anterior wound and no signs of neurovascular complications; a closed fracture of the right ulna; and signs of pre-existing deformity involving the elbow, wrist, hand and fingers. The court recorded that the plaintiff received wound cleaning and application of casts, was admitted for intravenous antibiotics and monitoring, and that his level of consciousness improved during the admission.

The plaintiff underwent further treatment including debridement in August 2005 and a skin grafting procedure in September 2005. The court recorded that the plaintiff was hospitalised for approximately eight months and was discharged on 10 February 2006. The orthopaedic opinion before the court (as recorded) was that the plaintiff sustained serious orthopaedic injury leading to chronic osteitis, and that he would have experienced severe pain and discomfort for a period of about six months while undergoing multiple surgical procedures, with mobilisation being difficult due to the concomitant right arm fracture.

The court accepted evidence that the plaintiff was permanently wheelchair bound and that his living circumstances and functional limitations were severe. He resided in a shack on the same premises as his sister-in-law’s household, used a bucket as a toilet due to access difficulties, and depended on his sister-in-law for washing, dressing, and general care. The court recorded that he was incontinent, could not move independently without assistance, could not prepare his own meals, could not be left unattended, and could not use public transport. The court also noted that he sometimes assisted his sister-in-law with a fruit and vegetables stall when weather permitted.

As to the quantification exercise, the court recorded that, at the commencement of proceedings, it was conveyed that all heads of damages other than general damages were agreed, and that a range of expert reports were admitted without formal proof on the basis that they were accepted as correct. However, within the quantum enquiry the defendant advanced argument for contingency deductions affecting future loss and future medical expenses, and the court ultimately made a contingency deduction in respect of future medical expenses.

Legal Issues

The central legal questions for determination were concerned with the assessment and quantification of damages flowing from the established assault, and in particular the appropriate amount to award for general damages in light of the nature and consequences of the plaintiff’s injuries.

A related question was the extent to which contingency deductions should be applied in calculating certain heads of damages, specifically whether a contingency should reduce the amounts claimed for future medical expenses and whether any contingency should be applied to future loss of earnings/earning capacity.

The dispute thus primarily concerned the application of law to facts and the court’s evaluative judgment in arriving at fair and reasonable monetary awards, particularly in relation to general damages (where no exact measure exists) and the discretionary assessment of contingencies.

Court’s Reasoning

The court approached general damages with reference to established appellate guidance emphasising the inherent difficulty of translating pain, suffering, and loss of amenities into money. It relied on the principle that such awards cannot be calculated mechanically and must reflect a broad, fairness-based evaluation of all the circumstances. In this respect, the court referred to Sandler v Wholesale Coal Supplies Ltd AD 1941 at 199, noting the proposition that there is no objective scale to measure pain and suffering and that the award depends on the presiding judge’s assessment of what is fair.

The court also took into account cautionary guidance on the non-extravagant nature of awards and the reality that money is only a crude substitute for what has been lost, with attention to the impact of such awards on the public purse. In this connection, the court referred to The Minister of Safety and Security v Seymour, Dennis Thomas 2007 (1) All SA 558 (SCA), particularly the sentiment that there is no empirical measure for such loss and that awards should be made mindful of competing legitimate demands on public resources.

In determining a suitable amount for general damages, the court considered a number of comparable awards relating to lower-limb fractures and sequelae, including decisions where plaintiffs sustained fractures to the femur/tibia or tibia/fibula and received awards at markedly lower levels than that claimed in this matter. The court’s comparative exercise was not treated as determinative but as providing “guidelines and examples” to inform a fair award. Having regard to those comparators, the court concluded that the plaintiff’s injuries and sequelae were more serious than those in the cases cited, in particular because the plaintiff was wheelchair bound, unable to care for himself, and subjected to ongoing indignity and dependence on others for basic daily functions.

The court expressly weighed the plaintiff’s permanent dependence, inability to manage hygiene needs, the indignity associated with his condition, and the combination of pain, suffering, contumelia, permanent disfigurement, disability, loss of amenities, and impairment of health. While the plaintiff’s counsel suggested that the general damages claim be reduced from R1,000,000 to R900,000 due to the absence of sequelae for head injury, the defendant urged a conservative approach in the range of R300,000 to R400,000. The court, after the comparative and evaluative assessment, fixed general damages at R400,000, indicating that this amount was appropriate in the circumstances.

On contingencies, the defendant contended for a 20% contingency in relation to loss of earnings (and argued similarly in relation to future medical expenses), on the basis that the plaintiff had previously sold cigarettes and could continue to do so given that he sometimes assisted with a stall. The court articulated the kinds of factors relevant to contingencies (including estimation error in life expectancy, illness and unemployment that might have occurred in any event, inflation/deflation, and the possibility that treatment may or may not be undertaken or become necessary). Applying that general approach, the court determined that a 15% contingency deduction was appropriate in respect of future medical expenses.

However, the court declined to apply any contingency to future loss of earnings/earning capacity, citing the occupational therapy view (as recorded in the judgment) that the plaintiff would not be able to continue his hawking business without incurring the costs of paying someone to handle stock logistics and that his medical status had been gradually deteriorating. This reasoning supported the conclusion that the plaintiff’s capacity to generate income was not realistically preserved in a manner justifying a contingency reduction.

Having made these determinations, the court calculated the total damages by retaining the agreed amounts for the various heads, applying the 15% deduction to future medical expenses, and substituting its own award for general damages.

Outcome and Relief

The court granted judgment in favour of the plaintiff and ordered the defendant to pay R2,467,780.35 as damages arising from the assault of 16 June 2005.

The court further ordered the defendant to pay interest on the aforesaid sum at 15.5% per annum, calculated from a date 14 days after the order.

The defendant was ordered to pay the costs of suit, including the qualifying expenses (if any) of the identified experts, namely R J Koch, Dr P A Olivier, Dr H J van Daalen, Mr R Charlton Perkins, Dr R T Toogood, and Ms Peliwe Mdlokolo.

Cases Cited

Sandler v Wholesale Coal Supplies Ltd AD 1941 at 199.

The Minister of Safety and Security v Seymour, Dennis Thomas 2007 (1) All SA 558 (SCA).

Mgudlwa v Road Accident Fund 2011 (6E3) QOD 1 (ECM).

Sinkampule v Road Accident Fund 2010 (6E4) QOD 1 (ECM).

Aeschliman v Road Accident Fund 2010 (6E7) QOD 1 (ECP).

Legislation Cited

No legislation was cited in the judgment.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that, following the prior determination of liability, the defendant was obliged to compensate the plaintiff for proven damages arising from the assault, and that the principal outstanding question was the proper quantification of those damages.

It held that general damages in the amount of R400,000 constituted a fair award when assessed against comparable awards and in light of the plaintiff’s severe permanent impairment, wheelchair dependence, and loss of amenities of life.

It held further that a 15% contingency deduction was appropriate in respect of future medical expenses, but that no contingency deduction should be applied to future loss of earnings/earning capacity on the basis of the plaintiff’s functional limitations and deteriorating medical status as described in the evidence accepted by the court.

LEGAL PRINCIPLES

An award of general damages for pain, suffering, and loss of amenities cannot be determined by calculation, because there is no objective scale by which pain and suffering can be measured in monetary terms; the amount must be determined by broad considerations of fairness in all the circumstances, informed (but not dictated) by comparable awards.

Money is a crude solatium for losses that cannot truly be restored; courts should be mindful that general damages awards do not follow an empirical measure and should take into account the broader context, including that there are legitimate competing demands on public resources.

In assessing contingency deductions, relevant considerations include uncertainties in life expectancy estimates, the possibility of illness or unemployment that might have occurred irrespective of the delict, economic changes affecting money’s value, and whether future treatment may or may not be undertaken or become necessary; the selection and application of contingencies is an evaluative assessment grounded in the circumstances of the particular case.

Dayimane v Minister of Correctional Services (EL 428/08, ECD 928/08) [2011] ZAECELLC 18 (13 December 2011)