Fortuin v Minister of Safety and Security (2728/02) [2007] ZAWCHC 3 (25 January 2007)

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[2007] ZAWCHC 3
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Fortuin v Minister of Safety and Security (2728/02) [2007] ZAWCHC 3 (25 January 2007)

REPORTABLE
IN THE SUPREME COURT OF SOUTH AFRICA
(CAPE OF
GOOD HOPE PROVINCIAL DIVISION)
CASE NO:
2728/02
In the
matter between:
MARILYN FORTUIN
Plaintiff
and
THE
MINISTER OF SAFETY AND SECURITY
Defendant
_______________________________________________________
JUDGMENT
DELIVERED ON THIS 25
TH
DAY OF JANUARY, 2007
_______________________________________________________
THRING, J.:
On the
29
th
March, 2000 the plaintiff was shot in the back at
Bonteheuwel, and suffered a gunshot wound. The defendant’s
liability to the plaintiff
in damages was resolved by this Court in
the plaintiff’s favour on the 11
th
April, 2005. The
quantum
of her damages remains to be decided. In her
particulars of claim the following amounts are claimed by the
plaintiff:
Past hospital, medical and other
related
expenses R5,000.00
Future
medical and other related
expenses
3,714,928.00
Past loss
of earnings 40,000.00
Future
loss of earnings/
loss of
earning capacity 483,178.00
General
damages in respect
of pain,
suffering, shock,
discomfort,
loss of amenities
of life,
permanent disfigurement
and
permanent disability
1,200,000.00
R5,443,106.00
During the course of the trial the defendant made a number of
admissions regarding the
quantum
of the plaintiff’s damages.
They were that:
The plaintiff has incurred past medical and hospital expenses in the
sum of R1,428.00.
The plaintiff has suffered a past loss of earnings in the sum of
R10,683.00.
As regards future medical and other related expenses (I quote
paragraphs 5.2 to 6.2 inclusive of the defendant’s counsel’s
heads of argument, as amended):
“5.2 The defendant admits that the plaintiff will require future
medical and other related treatment, medication, goods, services,
aids and equipment as well as the cost and frequency as set out
hereunder:
Yearly assessment by a general practitioner experienced in the
field of spinal cord injury at a cost of R750,00
per annum
for life.
In-patient treatment costing R37,800.00 immediately.
A 17.5% chance of syringomyelia surgery at a cost of R100,000.00
during her lifetime.
Pain consultations at a cost of R4,375.00
per annum
for
life.
Feldene at a cost of R967.00
per annum
for life.
Neurontin at a cost of R6,456.00
per
annum
for life.
Treatment for a fracture at a cost of R18,000.00.
A 10% chance of an elongation of the Tendo Achilles at a cost of
R6,000.00 per ankle.
Orthopaedic consultations at a cost of R18,750.00.
Anti-inflammatory medication at a cost of R2,785.95.
A 7,5% chance of surgery to her right shoulder at a cost of
R30,000.00.
Senokot tablets at a cost of R400.00
per annum
for life.
Dulcolax suppositories at a cost of R2,500.00
per annum
for
life.
Treatment for mild faecal impaction at a cost of R1,500.00 per
episode every 2 years for the rest of her life.
Treatment for a severe faecal impaction at a cost of R10,000.00.
A 75% chance of a haemorrhoidectomy at a cost of R10,000.00.
Treatment for minor pressure sores every 3 years at a cost of
R3,000.00 per treatment for the rest of her life.
A 70% chance of treatment for a major pressure sore at a cost of
R80,000.00.
Psychological counselling at a cost of R13,608.00 to be undergone
immediately.
Psychosexual counselling at a cost of R3,154,00 to be undergone
immediately.
An MRI at a cost of R7,000.00 immediately and thereafter every 7
years for the rest of her life.
A polypropolene ankle-foot-orthosis at a cost of R2,500.00 to be
replaced every 4 years for the rest of her life.
A knee orthosis for each knee at a cost of R2,000.00 per othosis
to be replaced every 4 years for the rest of her life.
Elbow crutches at a cost of R300.00 to be replaced every 2½ years
for the rest of her life.
A wheelchair at a cost of R14,000.00 to be replaced every 6½
years for the rest of her life.
The cost of repairs to her wheelchair in the sum of R500.00
per
annum
for the rest of her life.
The cost of tyres for her wheelchair at a cost of R228.00 every 6
months for the rest of her life.
A wheelchair cushion at a cost of R3,000.00 to be replaced every 6
years for the rest of her life.
Physiotherapy at a cost of R6,510.60
per annum
for the rest
of her life.
Annual urological consultations at a cost of R450.00
per annum
for the rest of her life.
GP consultations at a cost of R174.50 every 6 weeks for the rest
of her life.
One Fuji catheter at a cost of R800.00
per annum
for the
rest of her life.
30 Linen savers per month at a cost of R1.70 each for the rest of
her life.
Biotane in water at a cost of R12.55 per month for the rest of her
life.
A bacteriological examination for urine culture and sensitivity at
R250.00
per annum
for the rest of her life.
Serum urea/creatine at a cost of R77.60
per annum
for the
rest of her life.
A blood count at a cost of R106.00
per annum
for the rest
of her life.
An ultrasound scan for kidneys and bladder at a cost of R950.00
per annum for the rest of her life.
A 5% chance of lithotripsy procedure at a cost of R7,979.50.
A 5% chance of holmium laser procedure at a cost of R10,000.00.
A 5% chance of renal stone surgery at a cost of R27,000.00.
A 20% chance of systoscopic removal of stones at a cost of R450.00
during the next 5 years.
A 20% chance of consultation regarding the removal of bladder
stones at a cost of R880.00 during the next 5 years.
A 20% chance of systoscopy at a cost of R2,640.00 during the next
5 years.
A 20% chance of crushing stones at a cost of R1,200.00 during the
next 5 years.
A 20% chance of the services of an anesthetist at a cost of
R2,000.00 during the next 5 years.
A 20% chance of the use of a theatre and drugs at a cost of
R3,000.00 during the next 5 years.
Detrusitol SR at a cost of R296.00 per month for the rest of her
life.
Trepaline at a cost of R25.00 per month for the rest of her life.
Panamol at a cost of R12.00 per month for the rest of her life.
B-tab at a cost of R30.00 per month for the rest of her life.
A urodynamic bladder study at a cost of R2,500.00 every 4 years
for the rest of her life.
An intravenous pylogram at a cost of R2,000.00 every 5 years for
the rest of her life.
A voiding cysto-urethrogram at a cost of R950.00 every 5 years for
the rest of her life.
A CT scan at a cost of R2,500.00.
A consultation at a cost of R450.00 every 6 months for the rest of
her life.
A urinanalysis at a cost of R250.00 every six months for the rest
of her life.
Antibiotic treatment at a cost of R150.00 every 6 months for the
rest of her life.
Subsequent consultations at a cost of R200.00 every 6 months for
the rest of her life.
Treatment for severe urinary tract infection with hospital
admission every 5 years for life at a cost of R9,600.00 per
treatment.
Grab rails at a cost of R1,000.00.
A fold-down shower seat at a cost of R600.00 to be replaced every
6 years.
The defendant has also conceded that –
For purposes of calculating the plaintiff’s future expenses, a
nett discount rate of 1% will be applied across the board, save
as
provided in the succeeding paragraph;
The plaintiff is entitled to domestic assistance for 12 hours per
week and a nett discount rate of 2,5% will be used to calculate
the
current cost of such assistance.”
Save for that mentioned in paragraph 6.2 above, about which there is
a dispute with which I shall deal presently, all these admissions
are
acceptable to the plaintiff, and I need say no more about them at his
stage. It has also been agreed between the parties that,
after
discounting the expenses enumerated in paragraph 5 of the defendant’s
heads of argument by a reduction of 1%, as agreed in
paragraph 6.1,
the present value of these items is R1,478,106.00. No adjustment need
be made to this figure for contingencies, as
the likelihood of the
relevant items becoming necessary has already been allowed for by
agreement, as indicated, in those cases where
there is uncertainty.
(4) As regards the plaintiff’s
claim for future loss of income or of earning capacity, the defendant
has conceded that (I quote
from paragraph 6.3 of his counsel’s
heads of argument):
“6.3 For purposes of calculating any claim which the Court may find
the plaintiff has for future loss of income/earning capacity,
the
plaintiff’s current gross remuneration package amounts to R585.45
per week.”
There are certain further aspects on which the parties have also
reached agreement, as embodied in Exh. “E”, to which I shall
return presently.
That
leaves the following items of the plaintiff’s claims in dispute:
Her claim for the cost of a full-time domestic servant;
Her claim for the cost of a bath hoist;
Her claim for future loss of earnings or of earning capacity;
Her claim for general damages.
The
evidence
The first witness called for the plaintiff was Mrs. Elsa Wakefield,
a highly qualified and very experienced physiotherapist, whose
speciality is spinal cord injuries. She assessed the plaintiff on the
5
th
September, 2005. After recording in her report that
the plaintiff was born on the 6
th
January, 1972, she
furnished the following background information about her:
“Mrs.
Fortuin has a Std. 4 education.
At the time of her accident, she was employed by the company Jensen
Belts (Pty.) Ltd. which makes belts and handbags.
She resumed her work on 15.01.01.
Before her accident, Mrs. Fortuin worked as a ‘stamper’.
She
informs that stamping machines have foot pedals and that, since her
return to work, she is a ‘stainer’ since she needs to
be seated.
She needs
items of work to be fetched and collected.
Mrs Fortuin travels to and from work by bus.
Fortunately
her home and place of work are on a bus route and thus she needs only
short distances to the bus stop.
Mrs. Fortuin is married with two daughters, aged 17 and 7 years, who
are scholars.
Her
husband is a casual labourer.
The family lives in a Wendy-house in the yard of her parents’-in-law
Bonteheuwel home.
The family
uses the toilet and bathroom in the main house.
When water
is needed, it has to be carried from the house to the bungalow.”
From other
evidence it appears that the plaintiff commenced working for Jensen
Belts (Pty.) Ltd. (previously called Cape Belt) when
she was only 18
years of age. Mrs. Wakefield summarised the plaintiff’s injuries
and their immediate
sequelae
as follows in her report:
“Gunshot entrance wound in the right lower back and exit wound in
the left abdominal wall.
Acute intra-abdominal injuries.
Emergency
laporotomy and repair of the liver, lesser stomach curvature, jejunum
and short gastric vein injuries was performed.
Repeat
laparotomy was performed on 01.04.00 to treat a left ureteric injury.
Follow-up
surgery occurred on 17.05.00.
Incomplete spinal cord injury at about the L3 level.
When her medical condition was stabilised, Mrs. Fortuin commenced
rehabilitation following the spinal cord injury.
She was discharged to her home in Bonteheuwel in September 2000.
At this stage, Mrs. Fortuin was ambulant with the support of a right
knee orthosis, left ankle-foot orthosis and a pair of crutches”.
None of this material is in dispute.
Mrs.
Wakefield found,
inter alia
, that:
The plaintiff has sustained a permanent neurological disability
(paraplegia); as a result thereof:
The motor function is impaired in both the plaintiff’s legs;
There is significant wasting or atrophy in her right buttock and
calf musculature;
The range of the plaintiff’s right ankle-foot dorsiflection is
limited.
The sensory function is diminished and dulled in the plaintiff’s
buttocks and legs;
Her posture and gait have been adversely affected, and she has to
use a crutch in her left hand to ambulate, or has to cling onto
firm
objects such as furniture or walls in order to move about;
Her mobility is handicapped;
She is incontinent of both bladder and bowels;
Examination and testing demonstrate that the plaintiff has sustained
significant functional impairment, which Mrs. Wakefield summarised
as follows:
“Impaired balance in the erect posture.
Poor and limited standing and walking ability.
Loss of agility.
Impaired
ability to carry and handle articles
when on her feet.
Impaired capacity for physical activities and tasks.
Diminished
stamina and endurance.
Bladder
and bowel incontinence.
Pain and
altered sensory function.”
The
plaintiff’s mobility has, indeed, been severely compromised. She
is, according to Mrs. Wakefield, in “quite a bit of pain”.
This,
together with her impaired physical functioning, has brought about
certain distinct practical difficulties and limitations
for the
plaintiff. Her balance is now unsteady and unsafe. Using public
transport such as trains, buses and taxis has now become
difficult
and, indeed, dangerous for her, especially boarding and alighting
from such vehicles. Her agility has been greatly reduced,
and the
speed at which she can move about. Picking up objects and performing
other similar dynamic activities is now much more difficult
for her
than it was before she was injured. The cost to her in terms of the
energy required for such tasks is now very great, partly
because she
has to use her hands to support and steady herself, or her crutch. At
work she becomes very tired. She is unsteady on
her feet, and she
performs her tasks much more slowly than before. She is unable to
speed up. After being on her feet for 20 to 30
minutes she has to
rest. Working in a seated position is not a complete solution, as her
back hurts her.
Her
spinal cord injury has caused paralysis and neurological disfunction
of her bladder and bowels. In this respect she will never
be normal
again. Bladder and bowel training, which she has started to receive,
although it has improved the situation somewhat, will
not be a
complete answer to this problem, and she will continue to experience
“accidents” of incontinence from time to time for
the rest of her
life. She is also more exposed now to urinary infections than she was
before. She has been taught how to insert a
urinary catheter every
three or four hours to assist the elimination of urine from her
bladder. To insert the catheter takes her
about 15 to 20 minutes. She
requires to do this at least twice during every working day. Sexual
activity with her husband has been
adversely affected by these
complications.
Mrs.
Wakefield emphasised fatigue as being one of the plaintiff’s
greatest problems since her injury. She said that the effort
which
the plaintiff has to expend just to travel from her home to work each
day is exhausting for her. After a full day at work,
and after the
journey home, she arrives home in the evening and simply “flops”.
She said that endurance was “a real issue”
for the plaintiff.
According
to Mrs. Wakefield, the plaintiff’s condition is likely to
deteriorate with the passage of time. Because of the degeneration
of
her joints and musculature, old age will come to her sooner than
normal. She will be old long before she is fifty. She ought to
reduce
her levels of fatigue and to expose her joints to less stress and
strain than she does now, as her functional abilities will
diminish
in the future. A wheelchair will become a necessity. She is, in fact,
an “incomplete paraplegic”.
Many of
Mrs. Wakefield’s views were echoed and amplified by Ms. Bester, an
occupational therapist who was called for the plaintiff.
She assessed
the plaintiff for approximately three hours on the 8
th
September, 2005. She also carried out a work-site evaluation of the
plaintiff and interviews with her superiors at her place of
employment
on the 12
th
May, 2006 which lasted about two
hours. She confirmed that the plaintiff’s gait is impaired as a
result of her injury, and that
she has to use a crutch, an ankle-foot
orthosis and braces on both knees.
Inter alia
, she suffers
from accidents of incontinence from time to time, of both bladder and
bowels; her mobility and balance are impaired;
she has to shift her
weight constantly when standing, either at work or at home, and
position herself carefully; if she sits still
for a time her coccyx
becomes tender and sore; she suffers pains and dizziness sometimes
when she gets up in the morning; she cannot
carry heavy articles such
as shopping bags; she has difficulty sleeping, and is awoken during
the night by sensations of pain in
her legs and back; she has
impaired sensation and temperature control; her marital relations are
strained because her sex life has
been adversely affected; and she
has very painful kidneys.
The
plaintiff is, effectively, the sole breadwinner in her family. Since
the age of 18 years she has been employed at Jensen Belts
(previously
called Cape Belt) as a belt operator. Before her injury she was a
stamper. This work involved operating a machine in
a standing
position, using both arms and legs. She returned to work some nine
months after being injured, in January, 2001, but in
a different
capacity: since then she has been given lighter tasks, cleaning and
staining belts. For the first six months she worked
only three days a
week: after that she resumed full-time employment and as Ms. Bester
put it, “struggled on”.
Whilst cleaning and staining belts the plaintiff is now permitted to
sit at a table for most of the time, but in order to fetch samples
to
stain she has to get up from time to time and walk across the floor,
unless they are brought to her. She also has to stand up
frequently
to polish and stain the belts, in order to exert the required
pressure on them. According to Ms. Bester the plaintiff’s
present
occupation cannot be properly described as sedentary. Her supervisor,
Ms. Johannes, is apparently not satisfied with the
plaintiff’s
productivity: she says that she works too slowly. Ms Bester formed
the impression that the plaintiff’s reports of
her difficulties
were, in large measure, confirmed by others, and that she had
suffered a real reduction of productivity as a result
of her injury.
This loss of productivity is not attributable merely to the
additional time spent by the plaintiff each day in the
toilet: all of
her disabilities have a cumulative adverse effect on her
productivity, which Ms. Bester estimated to be only 50% to
60% of
that of her co-employees. This estimate of the plaintiff’s present
productivity was borne out by her employer.
Her
mobility and balance leave much to be desired: she still requires to
use a crutch to get about, or she has to seize hold of firm
objects
such as furniture in order to steady herself. Negotiating stairs is
difficult for her.
It is
common cause between Ms. Bester and Mr. Martiny, the defendant’s
industrial and organizational psychologist, that should the
plaintiff
lose her employment at Jensen Belts, where she is sympathetically
accommodated, she would have great difficulty in securing
any other
employment, and she would probably remain permanently unemployed.
Domestic
tasks such as doing laundry, making beds, polishing floors and
cleaning windows are also problematic for the plaintiff because
of
her poor mobility, balance and strength, and they fatigue her
tremendously. Everything that she does requires a great deal of
effort, and her energies are sapped at work. Using public transport
such as trains and buses is difficult and dangerous for her.
Her elder
daughter, who is presently about 18 years old, has basically assumed
the role of carer for her mother. This is not reasonable
or fair to
the daughter. Ms. Bester recommends the employment of a full-time
domestic worker to take care of laundry, cleaning, purchasing
of
food, assistance with food preparation, running errands and to care
for the plaintiff and accompany her on visits to clinics and
to
doctors for medical attention, etc. Such an employee should have her
own motor vehicle and a driving licence, and should be prepared
to
transport the plaintiff to and from various destinations as required
from time to time, and she should be remunerated accordingly,
says
Ms. Bester.
Ms.
Bester recommended that the plaintiff be provided with a bath hoist
to assist her in getting into and out of the bath. I shall
return to
this disputed topic presently.
In
cross-examination it was suggested to Ms. Bester that the plaintiff
was not well motivated as regards her employment. She disagreed.
She
pointed out that for five years since her injury the plaintiff had
been going to work almost every day in spite of her socially
embarrassing bladder and bowel incontinence and other problems, and
that, within her circumstances, she had, in Ms. Bester’s view,
been
doing the best she could. Ms. Bester conceded that psychological
therapy might well have some positive effect on the plaintiff,
but
she said that, in her opinion, it would not be significant because
her condition was multi-faceted and her disabilities were
almost
entirely physical in their nature. When it was put to her that there
was no good reason why the plaintiff could not be expected
to
continue working to the age of 55 years she strongly disagreed. She
said that the “boarding” of the plaintiff from her employment
on
the ground of her disabilities was imminent, and that she thought
that she would definitely not “make it” to the age of 55
years,
i.e. that she would not be physically able to go on working for
another 20 years.
As
regards the employment of a domestic worker to assist the plaintiff,
Ms. Bester estimated in cross-examination that the worker
would
require to spend about 16 hours a week doing purely domestic chores,
and the rest of the time caring for the plaintiff.
The
plaintiff’s prognosis is not good, according to Ms. Bester. Her
condition will almost certainly deteriorate as time passes.
That this
deterioration has already set in is amply demonstrated, I think, by
her sick leave record since 2001. In addition to the
ten days’ paid
sick leave to which she is entitled each year, she has taken the
following number of days of unpaid leave:
15 days
6 days
2 days
1 day
9 days
(to the 12
th
May, 2006 only) 29 days
Since July, 2006 32 days.
Almost all
of these extra days of leave have been occasioned by the plaintiff’s
poor health. It is not suggested by anyone that
she is malingering:
in fact, the clear impression which I have formed of the plaintiff
and from those who have dealt with her is
strongly to the contrary.
Mr. M.J.
O’Connor was also called as a witness for the plaintiff. He has
been the managing director of Jensen Belts for about
the last eight
years. He spends approximately eight hours of every working day on
the factory floor, and sometimes he runs the factory.
He has got to
know the plaintiff well. She presently works as what he calls an
edge-stainer. He says that she appears to be in constant
pain, and
that her condition has deteriorated quite rapidly over the last two
years. The deterioration is ongoing, as is evidenced
by the
increasing number of days which she has had to take off from work
because of ill-health. After she has exhausted the statutory
ten days
of paid sick leave to which she is entitled each year, the additional
days are unpaid, and her wages are reduced accordingly.
She has
presented medical certificates to justify approximately 75% of the
days which she has taken off from work. It was not suggested
to
O’Connor that any of the plaintiff’s absences from work could be
ascribed to malingering or to lack of motivation on her part.
Before
she was shot the plaintiff had no history of unjustified absenteeism.
O’Connor
estimates her present level of productivity at only approximately 50%
of a normal employee’s. This estimate has been
confirmed by time
and motion studies carried out by her supervisors. He attributes her
low productivity to the high levels of pain
which the plaintiff has
to endure constantly whilst working. It is not merely due to her
toilet problems, he says.
O’Connor
described himself, correctly, in my view, as a sympathetic employer,
at least as regards the plaintiff. Because she is
her family’s
breadwinner he has done his best to accommodate her disabilities
since she was shot, and he has kept her on at Jensen
Belts. However,
he does not think that she is really fit to work in her present
state: it is costing her employers money to keep
her on, and O’Connor
himself says that, as he sees it, the situation cannot be allowed to
continue for much longer. Nor does he
see the plaintiff being able to
endure it indefinitely: he says that it is clearly a tremendous
effort for her to come to work each
day, and that she arrives at work
exhausted.
The
plaintiff’s three witnesses all struck me as honest, competent,
well-balanced, truthful persons whose evidence can safely
be relied
upon. Where they expressed expert opinions, they were well-reasoned
and appeared to me to be mostly acceptable. There was
no indication
of bias in favour of the plaintiff on the part of any of them, save
that O’Connor is clearly a sympathetic employer
who is going out of
his way to accommodate the plaintiff as much as possible in her
employment with his company.
The
plaintiff herself gave evidence. She is presently 35 years of age.
She lives with her mostly-unemployed husband and two daughters
in a 3
metre by 9 metre wooden “Wendy” house erected behind the house of
her parents-in-law. This building is supplied with electricity,
but
there are no water, plumbing, toilet or bathing facilities. She
washes herself in a bucket of water and from time to time, about
twice a month, she uses the bath in the main house.
She was
shot on the 29
th
March, 2000 at approximately 7.30 a.m.
whilst walking to work. Her daughters were then 12 and 2 years old,
respectively. She was
taken by ambulance to the Conradie Hospital,
where she spent the following approximately six months as an
in-patient. An emergency
operation was performed on her there,
followed by two further operations. She says that she suffered
“verskiklike” pain during
her stay in hospital, and felt at times
that she was going mad. She often used to cry out with pain. She was
given morphine for it.
She had frequent nightmares during this time.
She had to lie on her back constantly, and was not permitted to alter
her position
in bed.
In
September, 2000 she was discharged from hospital and sent home to
recuperate. She was unable to return to work immediately, however,
as
she was, as she puts it, “baie verlam”. At that time she could
get about only with the aid of two crutches. Her legs were
still very
painful, and she had to wear metal leg braces and to learn to walk
with her crutches, which was very painful, so much
so that she almost
gave up trying. The pain in her legs and feet persists to this day.
She also experiences sharp pains in her left
arm, left chest and
hips. She takes analgesics, including Voltaren, for these pains.
She
confirms that she suffers from incontinence of bladder and bowel, and
has experienced embarrassing “accidents” as a result.
These have
occurred at home, in the presence of her children, at work and on the
bus. Previously she used to wear adult diapers;
recently she has been
taught how to insert a catheter into her bladder, which she now does
approximately four times a day. She recently
attended the University
of Cape Town Private Academic Hospital as an in-patient, where she
underwent a course in bladder and bowel
management; she says that,
save for the use of the catheter, this has not yet made a great deal
of difference, but she intends to
persist with the therapy and she
seems fairly hopeful that the position will improve somewhat with the
passage of time. By reason
of her incontinence sexual activity with
her husband has suffered since she was injured, and has become less
frequent and less pleasurable
for her. She would have liked to have
had another child: but she realises that in her present condition
“sal dit baie swaar gaan”,
and she seems to have abandoned the
idea.
Her
balance and steadiness on her feet leave much to be desired. She has
to cling onto firm objects to stay upright, or else use
her crutch.
Her left foot often goes into spasm, and she cannot put weight on it.
Her right foot is paralysed and immobilised in
an ankle-foot
orthosis. On both knees she is supposed to wear braces, but these
become uncomfortable after a time, and she cannot
wear them
constantly. Most of her housework is done by her elder daughter,
including laundry, cleaning, shopping and the preparation
of meals.
The elder daughter also assists in caring for her young sister. In
2006 the elder daughter was repeating Standard 9 at
school. She is
apparently keen on singing and would like to go to the United States
of America. The plaintiff says that she is no
longer able to carry
shopping which weighs more than approximately five kilograms because
of the pain in her arms.
Her
social life has been adversely affected by her injury, she says. She
used to play netball and swim, and she and her husband
were keen
dancers; but netball is now beyond her, and if she dances she now has
to cling onto her partner for support. Before she
was injured she had
many friends who used to visit her, and to whose homes she used to go
at week-ends. This is no longer the case.
Going to the beach is now a
rare occurrence for her, as she must be sure to be within easy reach
of a toilet. She can no longer swim,
because if she walks barefoot it
feels as if she is walking on needles.
The
plaintiff resumed work at Jensen Belts on the 15
th
January, 2001. She says that she started working there in 1990, when
she would have been about 18 years old. It was her first permanent,
full-time job. She started as a so-called table hand, cleaning belts
and buckles at cleaning tables. After two or three years she
was
promoted to stamping, where she operated a stamping machine. She
enjoyed this work.
Presently,
her typical working day entails rising at 5 a.m., washing herself in
a sitting position using a bucket of water, dressing
herself, also in
a sitting position; a 20 minute walk to a bus terminus; boarding a
bus; a bus journey of approximately an hour;
disembarking from the
bus; a ten minute walk from the bus stop to Jensen Belts; and
starting work at 7.30 a.m. Sometimes she is given
a lift to work by a
driver; when that happens, she has to walk for approximately 30
minutes to his house. On other occasions she
uses a series of taxis.
When she uses the bus, it takes her approximately 1½ hours to get
from her home to work. Her working day
ends at 4.30 p.m. She usually
arrives home, if she uses the bus, at between 5.40 and 5.50 p.m. She
feels so exhausted when she gets
home that she usually lies down and
rests for approximately an hour before dishing up the evening meal
for her family. Her crutch
goes everywhere with her. Boarding and
disembarking from buses and taxis is not easy for her, she says:
there are steps to negotiate,
and the drivers are usually impatient
to be off. Buses and taxis often lurch violently, throwing her off
balance unless she is sitting
down. She is very much afraid of
falling and injuring herself further. She does not use trains. On
occasion she has almost fallen
down in a bus. When she arrives at
work she says that she often feels as if she has already put in a
full day’s work: she is weary,
shaking and out of breath from
walking. She feels exhausted and anxious. Sometimes she gets dizzy
and has to fight off fainting fits,
and she takes pills for this. At
times she has to go and lie down for a while at work.
The
plaintiff described the various processes involved in the manufacture
of belts, as she has experienced or observed them. She
did so with
confidence, apparent competence, intelligently and with a measure of
pride. She says that she likes her work, and would
prefer to continue
working if she could, but she is now very weak. She strongly resisted
the suggestion which was put to her in cross-examination
that she can
continue working to the age of 55 years. She said, “my liggaam is
nou klaar”. She confirms that she has had to take
a lot of unpaid
sick leave, especially lately, because of her injury.
The quality of the work which she does is satisfactory, she says, but
her supervisor, Livona Johannes, is not satisfied with the
rate at
which she works, and says that she is “soos ‘n skilpad”. Of the
three stainers, including the plaintiff, who work together
the
plaintiff produces the least. Her slowness is attributable to the
consequences of her injury. She used to work much faster. She
is no
longer able to operate a stamping machine, because this entails
working standing up and using one’s legs and feet to operate
the
machine. The pains and weakness in her hips, feet and knees now
preclude this. Without her crutch she can no longer support her
weight on one leg. She has attempted this, but she falls over unless
she holds onto something. If she sits for a long time her coccyx
starts to burn and her legs go numb, so that she has to interrupt her
sitting from time to time and stand up. At work she says that
she has
heard other employees liken her to an old woman, and ask why she does
not retire. She feels that she is no longer the person
that she was
before she was shot. She would like to be “boarded” for
ill-health, but her application has so far not been successful.
At the
Court’s request the plaintiff moved, with the aid of her crutch,
from the witness box approximately five or six metres
across the well
of the Court and back to the witness box. She completed this
manoeuvre with considerable difficulty. I recorded my
observations
thereof as follows:
“Om net op rekord te stel wat die eiseres nou net gedemonstreer het
en aan die Hof verduidelik het; sy het uit die getuiebank geklim
en
met haar kruk in haar linkerhand het sy een maal op en af voor die
Hof gestap, stadig gestap. Dit het vir die Hof gelyk of sy
taamlik
moeilikheid gehad het om dit te doen. Dit was seker nie ‘n vinnige
stap nie.”
A little
later I asked the plaintiff if she would be prepared to repeat this
manoeuvre without her crutch, and without holding onto
anything. She
said that she was “’n bietjie bang”, and I did not insist that
she try: nor did counsel.
The
plaintiff was in the witness box from approximately 10.10 a.m. on
Tuesday, the 5
th
September, 2006 until approximately 10.45
a.m. the following day. During her evidence there were several
manifestations of her state
of fatigue and lack of stamina. In
particular, at approximately 3.30 p.m. on the 5
th
September, 2006, after being under cross-examination for
approximately an hour, she seemed almost to collapse: she placed her
head
on her folded arms and said “Ek kan nie meer nie”. She was
clearly exhausted. The Court adjourned early at that point until the
following day to allow her to recover her strength and powers of
concentration.
The
plaintiff left me with the strong impression of being an honest,
frank witness who was not exaggerating her condition. Indeed,
much of
what she says is borne out by the observations of a number of other
persons, including her employer, O’Connor, Mrs Wakefield
and Ms.
Bester. There were many occasions during her evidence when it would
have been easy for her to mislead the Court and exaggerate
her
misfortunes; but I do not believe that she did so at all; I also
believe that her demonstration to the Court of her gait, and
the
manifestations of her fatigue and lack of stamina in the witness box,
were entirely genuine and were not put on or exaggerated.
As I have
said, nobody has suggested that she is malingering in any way. Nor
was it put to her in cross-examination that she was
being
disingenuous or less than candid with the Court. Although far from
being a sophisticated or well-educated person, she is obviously
intelligent and observant. She gave her evidence in a most forthright
and unhesitating way, she answered all questions put to her
directly,
and she made no attempt to be evasive on any topic. She did express
herself firmly and definitely in a number of respects,
and I formed
the impression that she had become a little embittered by what has
happened to her, and also perhaps by the long delays
which have
occurred: but this is to be expected, and does not impinge on her
credibility. I find her a good, honest, reliable witness
whose
evidence can safely be accepted as the truth.
The
defendant called only one witness. He was Dr. E. Baalbergen. He is a
co-director of the neuro-rehabilitation unit of the Southern
Cross
Netcare Hospital, which has now amalgamated with the University of
Cape Town Private Academic Hospital. He is very highly regarded
by
the medical profession in this field of expertise, which is the
treatment and rehabilitation of patients with spinal cord injuries,
traumatic head injuries, strokes and other debilitating neurological
disorders. He has been involved in this work for approximately
the
last 16 years. He saw the plaintiff only once, on the 19
th
June, 2006 at the University of Cape Town Private Academic Hospital.
He has never visited her place of employment or spoken to any
representative of her employer. However, he was able to confirm many
of the observations of other experts, including the facts that
the
plaintiff suffers neuropathic pain in her legs and musculoskeletal
pain, that there is considerable weakness in both her legs,
that
there is a total loss of sensation in her right foot, that the
plaintiff’s injury and its
sequelae
are of a permanent and
irreversible nature, and that improvement is therefore not foreseen.
As
regards the plaintiff’s present and future ability to work, in his
report Dr. Baalbergen expressed the opinion that, provided
that her
difficulties with incontinence could be resolved, he saw no reason
why she should not be able to continue to function adequately
at
work, but that she could be expected to retire early, “from say age
55 years”. He emphasised, however, that the spectrum of
spinal cord
injuries is very wide, ranging from patients with what he called
“minimal neurological fallout and minimal disability”
to those
who have extremely severe disability as a result of their injuries.
In the plaintiff’s case he conceded in cross-examination
that his
estimate of 55 years as the age to which she could be expected to
continue working was “pretty much a thumb suck”. He
was under the
(as it has subsequently turned out) erroneous impression that her
work is “mainly sedentary” in nature and that
her performance is
“by all accounts adequate” – both of which propositions have
been belied by the acceptable and uncontroverted
evidence of the
plaintiff and of O’Connor, respectively. In cross-examination Dr.
Baalbergen also made the following concessions:
“You did say, both in your report as well as in evidence in chief,
that as far as the ability to work is concerned, the occupational
therapist is the correct expert, not so, to voice an opinion? --- Yes
M’Lord. I think that it should be a decision made with –
again,
with the input of all the experts. Clearly if there are huge medical
problems that limit her ability to work, that is a consideration,
but
when it comes down to the actual work environment, the kind of work
that she does, whether it can be done with the upper limbs
or if she
requires the use of lower limbs, whether it’s standing or sitting,
that is the realm of the occupational therapist to
assess that and to
comment appropriately on whether the type of work that she is doing
can still be done or not.
And for that particular reason the occupational therapist would go
and do a work visit, a physical work visit for instance, not so?
In
many instances. --- I would imagine that in all instances that would
be necessary in order to identify what actually gets done.
You didn’t yourself in this matter also go and do a work visit did
you? --- No I didn’t, no M’Lord.
COURT
:
You never went to her place where she works have you doctor? --- No,
I’ve never been there M’Lord.
You’ve never seen her working. --- I’ve never seen her working
no. My comments are restricted to the reports that I read and
my
comment on her ability to work in any work environment was restricted
to her medical condition rather than the actual work that
she does.”
A
propos
the evidence of Ms. Bester to the effect that the
plaintiff is not realistically able to continue to work Dr.
Baalbergen made the
following concession:
“And furthermore she was of the opinion that the plaintiff is not
currently in position to carry on with her work in that particular
job. Could you – would you defer to her in this regard? --- I would
have to defer to her because I haven’t seen the report and
I
haven’t been to her work environment, but once again, just to
stress from a medical point of view, there is no medical reason
why
the plaintiff couldn’t work until the age of 55 and that once again
doesn’t ....(intervention).”
The
following passage also occurred towards the end of Dr. Baalbergen’s
evidence:
“
COURT:
Well doctor yesterday in court she spent most of the
day in the witness box in a seated position for most of the time if I
remember
correctly, not doing anything physical, just sitting
answering questions and at about half past 3 she collapsed. --- Yes.
M’Lord
if I can .... (intervention).
(Indistinct)
about that, she put her head on her arms and I don’t know whether
she fainted but she wasn’t able to go on, we had
to adjourn. ---
Yes M’Lord.
Now, is
that not the sort of thing that you think might happen at work? ---
M’Lord I have alluded to the fact that I think there
are a lot of
psychological issues here. Obviously the trauma of this type of
injury is massive and I don’t think one can underestimate
how it
has affected her psychologically. Unfortunately she has never
received the benefit of adequate counselling and in my report
I
alluded to the fact that I was concerned about suicidal ideation at
one stage and then recommended referral to either a psychiatrist
or
clinical psychologist. In fact she had one of these episodes while
she was with us in the hospital, and physical examination and
various
special investigations couldn’t identify a physical cause and we
... (intervention).
When you
say one of these episodes, what are you referring to, what so you
exactly ...(intervention). ---Of fainting M’Lord, when
she was
relaxed.
Of
collapsing? --- Correct, yes M’Lord. So we did undertake fairly
exhaustive ... (intervention).
You said
fainting a moment ago, was it a faint actually in the situation in
which you found her? --- Yes M’Lord.
In your
hospital. --- Yes.
And you
said you couldn’t find a physical cause. --- We did numerous
investigations to look for a physical cause but cardiac and
vascular
or any other cause which might cause a faint from a medical point of
view, which we couldn’t find and her recovery was
quick, and we
felt that, after consulting with our psychiatrist that this was
probably due to psychological trauma. She was started
on appropriate
medication which I assume she continues and we still await the green
light to get her adequate psychological counselling.
Now doctor
I suppose you not being a psychiatrist or a psychologist, you
wouldn’t be able to express a view, would you, as to the
prognosis
of successful counsel – counselling being successful? It might be
successful, it might not, I would imagine. --- Yes
M’Lord.
Or can you
predict accurately, with a fair degree of confidence, that it would
be successful? --- Once again, under advisement I make
my comment
from my personal findings with these cases, but generally speaking
the longer that one waits before one institutes adequate
treatment,
the more difficult it is to treat and the less likely patients are to
recover completely from these kind of incidents.
It has been several
years since she has had this.
It’s
more than six years, 6½ years now. --- Yes. I wouldn’t be able to
put a figure to this. The psychiatrist would be better
able to say
whether she has a percent of full and total recovery or not.
Just while
you are dealing with that doctor, in the period that this lady has
been under your care, has she at any time given you
any reason to
suppose that she is malingering in any way or exaggerating in any
way? --- No M’Lord. I think her symptoms are very
real. I think
that she has a lot of psychological issues which needs to be dealt
with.
She is not
putting any of this on. --- I didn’t get ... (intervention).
For the
benefit of observers. --- I didn’t get that impression M’Lord.”
As regards
the psychological factors referred to by Dr. Baalbergen, the contents
of a report by a psychologist, Dr. D.M. Steyn, have
been admitted by
the defendant. In it he disagrees with the suggestion that such of
the plaintiff’s symptoms as are not directly
attributable to her
physical injuries are psychosomatic in nature: he attributes them
rather to “interpersonal humiliation and
depression” and adds
that she may also suffer from elements of post-traumatic stress
disorder. The contents of a report by a psychiatrist
who has been
consulted by the defendant, Dr. Anthony Teggin, were also admitted by
the plaintiff. In this Dr. Teggin says that the
plaintiff has “a
depressive disorder as well as certain symptoms of post-traumatic
stress disorder”. This, he says, is related
to:
“The
traumatic event of being shot.
Chronic
pain.
Loss of mobility coupled with the embarrassment of poor bowel and
bladder control.
Loss of
life amenities such as dancing.”
He goes on to express the view that the plaintiff’s depression, her
post-traumatic stress disorder and, to a degree, her pain “can
be
helped” with appropriate psychiatric treatment. Unfortunately he
says nothing about the prospects of such treatment being successful,
or the extent to which it might or might not alleviate the
plaintiff’s suffering. So that one is left in the dark in that
regard,
save that Dr. Baalbergen did not sound sanguine about it in
view of the fact that more than six years have now passed since the
plaintiff
was shot, and, as he put it, “the longer one waits before
one institutes adequate treatment, the more difficult it is to treat
and the less likely patients are to recover from these kind of
incidents”.
When it
was pointed out to Dr. Baalbergen that, according to the plaintiff,
her problems with bowel incontinence had not improved
much, despite
her recent treatment for approximately three weeks as an in-patient
at the University of Cape Town Private Academic
Hospital, he conceded
that “bowel issues do take longer to resolve”, that 100%
continence cannot be guaranteed, and that “patients
do from time to
time have mishaps where they have periods of incontinence”.
Regarding
the provision of a bath hoist for the plaintiff, Dr. Baalbergen
pointed out that these devices are extremely bulky and
difficult and
time-consuming to operate, and that they are usually used only by
patients who are entirely dependent on care-givers
for their daily
activities, especially patients who are obese and difficult to lift.
For patients who are mobile and who are able
to negotiate obstacles
such as small steps or stairs, or to use their hands to hold onto
grab rails, that, he said, is a more practical
way of getting into
and out of a bath, together, in suitable cases, with a bath swivel
chair. In the plaintiff’s case, he recommends
the provision of such
a swivel chair, with appropriate grab rails, for use in a bath; if
she has access to a shower, a fold-down
shower chair, also with
appropriate grab rails, would be adequate and suitable for her. (In
passing I may mention that it became
apparent during the plaintiff’s
evidence that she did not know what a bath hoist was.)
Dr.
Baalbergen is an eminent expert in his field, and appropriate weight
must be accorded to his views, which, I have no doubt,
he holds
perfectly honestly. However, in the light of the frank concessions
which he freely made in his evidence, his misconceptions
as to the
nature of the plaintiff’s work and her employer’s attitude to her
performance and the inconclusive nature of the psychological
evidence, he does not, to my mind, advance the defendant’s case
materially on the question of the plaintiff’s present and future
employability. It seems to me that the opinions of Ms. Bester, to
which he readily defers, supported as they are by Mrs. Wakefield
and,
to a lesser extent, perhaps, by O’Connor, are to be preferred on
this issue.
I turn
now to the aspects which are in dispute between the parties.
The claim for the cost of a full-time domestic assistant
It is
conceded by the defendant that the plaintiff is entitled to domestic
assistance in her home for 12 hours a week for the rest
of her life;
but on behalf of the plaintiff it is contended that this would be
insufficient, and that a full-time domestic servant
is required, i.e.
an employee who would work for approximately 40 hours a week;
moreover, says Ms. Bester, the employee should have
a driver’s
licence and her own motor vehicle, and be prepared, for suitable
remuneration, to transport the plaintiff on errands,
on shopping
expeditions, to places of entertainment and to medical appointments
as and when necessary; this seems to me to be an
eminently sensible
and reasonable suggestion. The domestic assistant should also be able
to assist the plaintiff with bathing, dressing
and generally getting
about, and should “keep an eye on her” in case she falls. Ms.
Bester estimated that the time which such
a domestic servant would
spend on doing purely domestic work would amount to approximately 16
hours per week; for the balance of
her working hours, i.e.
approximately 24 hours a week, she would be attending to the
plaintiff’s various personal needs. She conceded
that during at
least some of this time the servant would not be doing anything, but
would be “there just in case” the plaintiff
required her.
I have
given this question careful thought. It must be borne in mind, I
think, that however the plaintiff’s accommodation and
lifestyle may
change, they are not likely to become luxurious at any time in the
future: the probabilities are that she will continue
to live in a
fairly small and unpretentious house or flat with her family during
the foreseeable future. I accept Ms. Bester’s
evidence that her
purely domestic chores are not likely to take up more than about 16
hours a week of a servant’s time. I think
that the question was an
apt one which was put to her in cross-examination: what would the
domestic servant be doing for the rest
of her working hours, viz.
approximately 60% thereof? Whilst it is no doubt true that for some
hours a week she would be occupied
with assisting the plaintiff to
bath, dress and get about, and accompanying her on errands, I have
difficulty understanding how these
activities alone could usefully
take up an aggregate of 24 hours a week.
I have
reached the conclusion that if the plaintiff were to be provided for
the rest of her life with the services of a domestic
worker equipped
with basic carer skills, a driver’s licence and her own motor
vehicle for a total of 24 hours per week, that would
reasonably
suffice to cater for her needs: of this time approximately 16 hours,
or two-thirds, could be directed to doing household
chores, and the
remaining approximately eight hours to caring for the plaintiff in
various ways.
In this
connection the parties have reached the following agreement, which is
recorded in Exhibit “E”:
“2. As regards the plaintiff’s claim for the cost of domestic
assistance, the quantum shall be determined by actuarial calculation
based on the following assumptions:-
.................................
in the event of your lordship’s finding that the plaintiff is
entitled to the services of a domestic worker with basic carer
shills and driver’s licence, but only for a certain number of days
per month, or for a certain number of hours per week, the
cost of
such assistance shall be calculated at R136.36 per day or R17.04 per
hour, for the number of days or hours determined by
your lordship,
and discounted at a rate of 2,5%.”
On the agreed basis, the present cost of the domestic servant would
be R408.96 per week. To this must be added further remuneration
for
supplying motor transport. No evidence was led on this cost, and I
must do the best I can with such material as is available
to me. I
consider that it would be reasonable to add about R90.00 per week to
allow for this. I accordingly round up the present
cost to the
plaintiff of employing a domestic servant on the above basis to
R500.00 per week. In terms of the agreement, the amount
of the lump
sum to be paid to her in respect of this item must be determined by
actuarial calculation, using a (net) discount rate
of 2½%
per
annum.
The claim for the cost of a bath hoist
Although Ms. Bester felt strongly about the necessity for a bath
hoist for the plaintiff, pointing out that the bathroom was a
high-risk area, Dr. Baalbergen disagreed and expressed the view that
it would not be suitable for her, mainly because of its bulk
and
clumsiness and the time which it would consume. In his view a swivel
bath chair with grab rails would be quite adequate for her.
If she
had access to a shower, a fold-down seat with grab rails would
suffice, he said.
On this
point I prefer the view of Dr. Baalbergen. It seems to me that a
swivel bath chair and/or fold-down shower seat will adequately
provide the required comfort and safety for the plaintiff, especially
if she is to have the assistance of a domestic servant in bathing
or
showering, and that a bath hoist would be a cumbersome and
unnecessary extravagance.
In
paragraphs 5.2.61 and 5.2.62 of the defendant’s counsel’s heads
of argument provision is made for the cost of grab rails
for a shower
and a fold-down shower seat. To this must be added, in my judgment,
the cost of a bath swivel chair at a cost of R500.00,
to be replaced
every six years for the rest of the plaintiff’s life, and the cost
of grab rails for a bath at R1,000.00. The discounted
present value
of these items must be actuarially calculated in the same way as the
present value of the items specified in paragraph
5.2 of the
defendant’s heads of argument, and the amount must be added to the
sum of R1,478,106.00 referred to above, in respect
of future medical
and other related expenses.
The
claim for future loss of income or of earning capacity.
The only witness who has expressed the view that the plaintiff is
able to continue in her employment for a number of years is Dr.
Baalbergen. As I have said, he suffers from the disadvantage that he
has never visited the plaintiff’s place of employment, observed
her
at work or interviewed her employers. In his evidence he readily, and
to his credit, deferred to the opinions of Ms. Bester is
this regard.
In my view, her opinions are to be preferred, for the obvious reasons
which I have mentioned. They are also strongly
supported by O’Connor
and by Mrs. Wakefield.
As I
have already pointed out, the plaintiff is presently employed by a
sympathetic employer at Jensen Belts who is accommodating
her whilst
her productivity has been reduced by approximately 40 – 50%. Her
work exhausts her each day, and she is working under
extremely
difficult circumstances because of her constant pain, weakness, lack
of stability and immobility and incontinence.
It is
true that a duty rests on the victim of an unlawful act to mitigate
his damages: but in my view this duty does not extend
to obliging him
to perform feats of heroism, endurance and perseverance which cannot
reasonably be expected of him. For six years
now since she was shot
the plaintiff has soldiered on with dogged courage at work because
she is the family breadwinner, under very
difficult and adverse
conditions. Dr. Baalbergen himself described her conduct in doing so
as “admirable”, and I agree. However,
according both to Ms.
Bester and O’Connor the plaintiff is now approaching the point
where she will soon reach the end of her tether,
and will be able to
do no more, physically, with the best will in the world. That her
condition is deteriorating fairly rapidly is
demonstrated by the
increasing amount of sick leave which she is having to take. In my
opinion the plaintiff is not legally obliged
to sacrifice herself in
this way for the next 20 years so as to reduce the amount of the
damages which the defendant must pay her.
I share
Ms. Bester’s view that it would be unrealistic and unreasonable to
expect the plaintiff to go on working. She has endured
great pain,
suffering, discomfort, exhaustion and multifarious inconveniences in
persisting in her employment until now. In my judgment,
and on the
evidence before me, she is entitled to cease being employed forthwith
and to be compensated accordingly by the defendant
for her loss of
income or of earning capacity.
As for
the calculation of the present value of the plaintiff’s claim in
this regard, the parties have agreed as follows in Exhibit
“E”:
“5. As regards the plaintiff’s claim for future loss of earnings,
the quantum shall be determined by actuarial calculation based
on the
following assumptions:-
the age to which, by your lordship’s determination, the plaintiff
would have worked had she not suffered the injuries on which
her
claims are based;
the date, or age, from which, by your lordship determination,
plaintiff’s claim in respect of future loss of income/earning

capacity, arising from the injuries on which her claims are based,
shall be calculated;
a gross remuneration of R585.45 per week, which amount shall be
discounted at a rate of 2,5%;
the applicable contingency adjustment as per your lordship’s
determination, if any, to be applied in relation to plaintiff’s
income had she not been injured; and
in the event that your lordship finds that the plaintiff has some
residual earning capacity, the applicable contingency adjustment
as
per your lordship’s determination, if any, to be applied in
relation to plaintiff’s income.”
In order to enable the necessary calculations to be made, I supply
the following findings as answers to the questions posed:
The age to which the plaintiff would have continued to work, had she
not been shot: 65 years;
The date from which the plaintiff’s claim for future loss of
income or of earning capacity shall be calculated (i.e. the date
from which she is to be regarded as having no further income): the
date of this judgment;
Her gross remuneration, had she not been injured, has been agreed at
R585.45 per week, increasing, I presume, in the future so
as to keep
pace with inflation, but not in real terms;
The reduction to be made to the plaintiff’s notional future
earnings, had she not been injured, so as to allow for adverse
contingencies
such as ill-health, accidents, loss of employment,
early retirement, etc.: 12%. (See, in this regard,
Krugell v.
Shield Versekeringsmaatskappy Bpk.
, 1982(4) SA 95 (T) at 104
F-H;
Nhlumayo v. General Accident Insurance Company of South
Africa Ltd.,
1986(3) SA 859 (D) at 865 C-E; and
Ngubane v.
South African Transport Services
, 1991(1) SA 756 (A) at 782 D-E.
I regard the following as factors which point to a low rather than a
high adjustment for contingencies:
The plaintiff has been in settled, constant employment with the same
employer for the last approximately 17 years, since she was
18 years
of age;
(ii) Until she was injured, her employer seems to have been satisfied
both with the quality of her work and with her productivity:
she
received several promotions; she enjoyed her work, and there was a
strong possibility that she might have been promoted further
to the
position of machinist;
(iii) The plaintiff seems to have led a physically active and healthy
life, including sports activities and dancing, until she was
injured;
she had no history of undue ill-health;
(iv) The plaintiff is her family’s sole effective breadwinner: this
makes it less likely that she would lightly give up her employment,
or conduct herself in such a manner as to compromise it; indeed,
history since her injury has demonstrated this.)
(e) In my judgment the plaintiff has no residual earning capacity.
General damages
Some of the plaintiff’s woes I have touched on; unfortunately,
she has others, too. She can, says Mrs. Wakefield, be called an
“incomplete paraplegic”. Her ability to work and to carry on
normal daily activities, including leisure activities, has been
significantly (and permanently) compromised, says Ms. Bester.
According to Mrs. Wakefield, the plaintiff will never have a normal
bladder or bowel. She will always be prone to bladder infections and
“accidents” of bowel incontinence, and her condition will
always
require meticulous attention. She has had to wear adult’s diapers
for her incontinence. She has been permanently deprived
of the
satisfaction of being able to work for her living and to support her
family. Her social and leisure activities have been severely
curtailed. Her sex life has been adversely affected. The prospect of
her bearing more children has been substantially compromised,
and for
practical purposes reduced to nothing. She suffers from nightmares
and psychological problems which may or may not be capable
of
alleviation with suitable counselling. These disasters befell her at
the age of 28 years, when she was in the prime of her life
and would
otherwise have been able to look forward to many more years of
active, happy and useful life. Not only has the quality
of her life
been adversely affected: her life expectancy itself has now been
reduced by approximately 5%.
Mr. L.G.
Martiny, an industrial and organizational psychologist consulted by
the defendant, whose report was admitted by the plaintiff,
usefully
summarised the plaintiff’s symptoms in the following terms in his
report:
“Weakness in lower limbs.
Sensation problems including numbness of the lower limbs.
A right
drop foot requiring the use of supporting footwear.
Incontinence.
Pain.
Headaches.
Concentration
and memory problems.
Self
confidence, depression and behaviour problems.
Sexual
problems.
Anxiety
and panic attacks.”
Moreover, the plaintiff will, over the years in the future,
probably or possibly have to receive extensive medical treatment and
will probably or possibly have to make use of a plethora of aids and
equipment to ease her pain and discomfort for the rest of her
life.
The nature and extent of this treatment and these items of equipment
are apparent from a perusal of the dismal litany which
comprises the
admitted list which I have quoted above from paragraph 5.2 of the
defendant’s counsel’s heads of argument. It includes
the
possibility that the plaintiff may have to undergo several further
operations.
When she was injured the plaintiff had started making payments
towards a substantial brick home for herself and her family. Had
she
not been shot, she might by now have already been in occupation of
it. Because of the reduction in her income brought about by
her
injury, however, she has been unable to keep up the payments, and her
hopes in this direction have had to be abandoned, or at
least shelved
indefinitely for the last six years or more.
The
plaintiff has been permanently disfigured. Her gait has become slow,
awkward and ungainly. She has to use a crutch, a foot
orthosis and
braces on both her knees to get about. The distress and embarrassment
which this would occasion to anyone is exacerbated
by the fact that
the plaintiff is still a young woman.
It is
trite, I suppose, to observe that in cases such as this damages can
be but a poor substitute for the multitude of enjoyments,
pleasures
and satisfactions that a healthy life offers. In
du Pisanie, N.O.
v. de Jongh
, C.P.D. 23 December, 2002, Case No. 8497/1996
(unreported) I posed the question at p. 110 of the typescript
judgment:
“Kan daar verbeel word dat enige
bonus paterfamilias
ooit
sou toestem dat hy in Rabe (the victim in that case) se huidige
posisie geplaas word, wat die skadevergoeding daarvoor ook
al mag
wees? Ek dink nie so nie.”
On appeal,
sub nom.
de Jongh v. du Pisanie, N.O.
,
2005(5) SA 457 (A) the Supreme Court of Appeal held at 475 C-D
(paragraph [57]) that, if this passage were to be interpreted as
introducing as a measure of damages the amount of money which a
bonus
paterfamilias
would accept in return for suffering the
plaintiff’s injuries, it amounted to a misdirection; but the Court
accepted at 475 D-E
that that was not what I meant, and that I merely
wished to indicate that no amount of money would ever be sufficient
to compensate
the plaintiff in that case for what he had lost.
Nevertheless, I shall refrain from posing the question again in the
context of the
present case. However, it must be obvious that,
generally speaking, a generous award of general damages will always
go further in
the direction of providing adequate compensation for
the victim of a delict in a case such as this than will a niggardly
one.
At page
115 of the typescript judgment in the
du Pisanie
case,
supra
,
I observed, referring to awards of general damages in cases of severe
personal injuries:
“....dit betaam nie ‘n beskaafde samelewing om in verdienstelike
gevalle daarmee suinig te wees nie.”
On appeal
the Supreme Court of Appeal disapproved of this proposition, saying
at 476 A-B (paragraph [60]):
“Die stygende tendens vir toekennings in algemene skade in die meer
onlangse verlede is duidelik waarneembaar. Ek kan egter nie
saamstem
met die Verhoorhof se uitgangspunt waarvolgens dit toegeskryf moet
word aan ‘n siening dat suinigheid met vergoeding vir
ernstige
beserings nie ‘n beskaafde samelewing betaam nie. Aangesien dit nie
die gemeenskap is wat moet betaal nie, maar die verweerder,
het
suinigheid aan die kant van die gemeenskap met die saak niks te make
nie.”
If there
is henceforth to be a distinction drawn between the
quantum
of
general damages payable by “die gemeenskap” on the one hand,
which is to pay on a higher scale, and by a defendant who is
a
private individual on the other, who is to pay on a lower scale, (a
novel proposition which I find it difficult to believe that
the
Supreme Court of Appeal could seriously have intended to adumbrate,
especially as no authority was cited in support thereof),
then it is
not a distinction which can redound to the benefit of the defendant
in the present case. I say this because he is a minister
in the
national cabinet who is being sued as the public representative of a
department of government, and the damages payable to
the plaintiff
will undoubtedly come out of the coffers of the “gemeenskap”,
that is to say, it will be taxpayers’ money. This
may possibly be a
feature which distinguishes the present case from
du Pisanie’s
,
and which will, I trust, render my approach to niggardliness in this
context less unacceptable in the present case. However, be
that as it
may.
As
appears from the passage which I have quoted above from paragraph
[60] of the judgment of the Supreme Court of Appeal in the
du
Pisanie
case,
supra
, that Court accepted the “stygende
tendens vir toekennings in algemene skade in die meer onlangse
verlede” which I had found
to be something to be welcomed (see page
114 of my typescript judgment). However, at 477 E (paragraph [65] the
Court went on to say:
“Dit is nie seker presies wanneer die tendens begin het en wanneer
dit sal eindig nie. Dit het bes moontlik reeds tot ‘n einde
gekom.”
It is noteworthy, I think, that the Supreme Court of Appeal did not
go as far as to find that the upward tendency had, in fact, ended.
Perhaps, as the Court said, it has: perhaps it has not. If it has not
ended that, in turn, is in my respectful opinion something
to be
welcomed, for in my view awards in respect of general damages in
South Africa continue to fall short, in many instances, of
what
justice requires. One of the unfortunate results of this, I think,
has been that plaintiffs in personal injury cases have probably
often
been advised, and have come to accept, that they cannot realistically
expect to be awarded adequate compensation in the form
of general
damages, and they have consequently rather concentrated their efforts
on other heads of special damages such as future
medical and related
expenses and future loss of income or of earning capacity. This has
frequently led to claims under the latter
heads becoming
unrealistically inflated and exaggerated, which is regrettable.
If, on
the other hand, the upward tendency has indeed come to an end, that
is, to my mind, a regrettable and premature development
which should
be reversed if possible, and I am cautiously hopeful that my award in
the present case may assist in a small way in
that direction.
In
saying this I do not lose sight of the passage cited by the Supreme
Court of Appeal in the
du Pisanie
case,
supra
, at 476
C-D (paragraph [60]) from the judgment of
Holmes, J.
, as he
then was, in
Pitt v. Economic Insurance Co.Ltd.
, 1957(3) SA
284 (D) at 287 E-F:
“(T)he Court must take care to see that its award is fair to both
sides – it must give just compensation to the plaintiff, but
it
must not pour out largesse from the horn of plenty at the defendant’s
expense.”
“Just compensation for the plaintiff” ought not, in my respectful
view, to be sacrificed simply for the sake of sympathy for
or undue
leniency towards the defendant: after all, it is the unlawful conduct
of the latter which has brought about the losses which
the (at any
rate in the present case) blameless plaintiff has suffered. Precisely
whatever it is that fairness to the defendant may
be conceived to
comprise, it cannot, to my mind, be permitted to entail depriving the
plaintiff of proper compensation for the shock,
pain, suffering,
discomfort, disability, disfigurement, loss of amenities of life and
other similar consequences which she has had
to endure as a result of
the defendant’s conduct, and which she will continue to have to
endure for the rest of her life. To my
mind such an approach would be
very difficult, if not impossible, to reconcile with the other side
of the equation, so to speak,
viz. fairness to the plaintiff. What
must be guarded against, it seems to me, is awarding exaggerated or
unnecessarily high general
damages – pouring out “largesse from
the horn of plenty at the defendant’s expense” – not because
this might cause hardship
to the defendant (after all, subjective
factors such as a defendant’s ability or lack of ability to pay the
damages have never
in our law been relevant to the assessment of the
quantum
thereof), but simply because such an award would go
beyond what the plaintiff is reasonably and properly entitled to as
compensation
for his or her injuries. In making my award of general
damages in the present case, I propose and hope to avoid doing this.
In the
du Pisanie
case,
supra,
at 477 C-D (paragraph [64]) the
Supreme Court of Appeal again emphasised that, whilst comparison with
other awards in similar cases
is a useful and necessary tool, the
pattern or parameters revealed thereby can serve only as a
guideline, and cannot replace the
Court’s discretion in assessing
the
quantum
of general damages. During the course of his
argument Mr.
Oliver
, who appears for the defendant, submitted
that an award of R300,000.00 would be appropriate in the present
case. Mr.
Visser
, who appears for the plaintiff, contends that
the figure should be much higher then this.
Mr.
Oliver
referred especially to two decided cases, both reported
in
Corbett & Buchanan, “The Quantum of Damages in Bodily and
Fatal Injury Cases”
,
Vol. 4
. The first of these was
Chaza v. Commissioner of Police and Another
, reported at A
3-10. That case was decided in 1988 in the Zimbabwe High Court. The
plaintiff had been permanently paralysed from
the waist down by a
gunshot wound. Her condition was more serious than that of the
present plaintiff. The award of general damages
in that case was
Zimbabwe $50,000.00, the present-day equivalent of which is
approximately R223,000.00. I do not find this decision
of very much
assistance, mainly because it was handed down 18 years ago in another
country, before the upward trend in awards for
general damages had
commenced or, at any rate, really gathered momentum in South Africa.
The
other decision was
Motloung v. South African Eagle Insurance Co.
Ltd.
, reported at A3-120. It was a case decided in 1996 in the
Witwatersrand Local Division. It also concerned a young woman who had
been
paralysed from the waist down, and who experienced bowel and
bladder problems similar to those of the plaintiff. She was awarded
R240,000.00 in respect of general damages. The present value of this
award is approximately R445,000.00. This decision is probably
now
also somewhat out of step with the increase in awards which has taken
place over the last ten years. But in any case, although
the
condition of the plaintiff in that case was also worse than that of
the present plaintiff, I do not consider the difference to
be so
great as to call for an award which is very much lower than that made
in
Motloung’s
case.
In the
light of what I have said above, and after careful consideration, I
have come to the conclusion that the amount which should
be awarded
to the plaintiff in respect of her claim for general damages is
R350,000.00.
In the
result I make the following order:
1. The plaintiff is awarded damages against the defendant in the
following agreed sums:
In respect of her claim for past
hospital, medical and other related expenses: R1,428.00;
Subject to what follows in paragraphs 2(a) and (b) below, in respect
of her claim for future medical and other related expenses:
R1,478,106.00;
In respect of her claim in respect of past loss of earnings:
R10,683.00;
2. In addition, it is declared that the plaintiff is entitled to
recover damages from the defendant in respect of the following items,
the value of which is to be actuarially calculated on the basis of
the following facts and assumptions:
The cost of a domestic assistant: the plaintiff is entitled to be
paid the cost of a domestic assistant from the date of this judgment
for the rest of her life on the assumptions that:
The domestic assistant shall be equipped with basic carer skills, a
driver’s licence and her own motor vehicle which she shall
be
employed to use to provide transport for the plaintiff as and when
reasonably required by her;
The domestic assistant shall be employed for an aggregate of 24
hours per week;
The present-day cost of employing such a domestic assistant is
R500.00 per week;
The present value of the cost of employing such domestic assistant
for the rest of the plaintiff’s life shall be calculated
applying
a net discount rate of 2½%
per annum
;
The cost of a bath swivel chair, to be replaced every six years for
the rest of the plaintiff’s life at a present-day cost of
R500.00,
and the cost of two grab rails for a bath at a cost of R500.00 each;
these costs are to be calculated applying a net discount
rate of 1%
per annum
;
In respect of her claim for future loss of income or of earning
capacity, the plaintiff is entitled to recover damages from the
defendant actuarially calculated on the basis of the following facts
and assumptions:
Had she not been injured, the plaintiff would have worked until the
age of 65 years;
As from the date of this judgment the plaintiff is to be regarded
as having no income from employment or residual earning capacity,
and her claim for loss of income or of earning capacity must be
calculated from that date;
The plaintiff’s rate of gross remuneration, had she not been
injured, would have been R585.45 per week in present-day values;
her wages would have increased in the future so as to keep pace
with inflation, but not in real terms, until her retirement at
the
age of 65 years;
The reduction to be made to the plaintiff’s notional future
discounted earnings, had she not been injured, so as to allow for
adverse contingencies such as ill-health, accidents, loss of
employment, early retirement, etc. is 12%.
3. The plaintiff is awarded general damages in the sum of
R350,000.00.
4. (a) On the items referred to in paragraph 1
above interest shall run at the rate of 15½%
per annum
from
the date or dates on which the agreements referred to in that
paragraph were concluded, to date of payment.
On the items referred to in paragraph 2 above, interest shall run at
the rate of 15½%
per annum
from the date or dates on which
the actuarial calculations shall have been agreed on by the parties,
to date of payment.
On all other amounts awarded in this judgment, interest shall run at
the rate of 15½%
per annum
from the date of this judgment to
date of payment.
The defendant is ordered to pay the plaintiff’s costs of suit,
including the qualifying expenses of the following experts:
Mrs. E. Wakefield;
Ms. E. Bester;
Dr. J.J. Faure;
Dr. L. Tucker;
Dr. R.D. Shrosbree;
Dr. D.M. Steyn;
Mr. D.G. Rolland.
6. In the event of the parties being unable to reach agreement on
the calculation of any of the items of damages referred to in
paragraph 2 above, leave is granted to either party, on appropriate
notice to the other, to approach this Court for leave to reopen
his
or her case with a view to the resolution of any such question in
dispute.
___________________________
THRING,
J.