Geldenhuys v Minister of Safety and Security and Another (13169 / 99) [2002] ZAWCHC 2; [2002] 3 All SA 82 (C) (30 January 2002)

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[2002] ZAWCHC 2
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Geldenhuys v Minister of Safety and Security and Another (13169 / 99) [2002] ZAWCHC 2; [2002] 3 All SA 82 (C); 2002 (4) SA 719 (C) (30 January 2002)

REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
Case
No.: 13169 / 99
In the matter between:
JOHN
CHRISTOPHER GELDENHUYS Plaintiff
and
THE MINISTER
OF SAFETY AND SECURITY First Defendant
THE NATIONAL
COMMISSIONER FOR THE
SOUTH AFRICAN POLICE SERVICES Second Defendant
JUDGMENT DELIVERED:
DAVIS, J
INTRODUCTION
Plaintiff is a 65 year old man
whose life changed irredeemably on the evening of 26
th
December 1998. On that evening he was arrested in Gordon’s Bay,
apparently for being drunk in a public place. According to the
police incident book he was placed in a cell at 23:40 on 26
th
December 1998. Some fourteen hours later he was rushed to hospital
where medical diagnosis confirmed that he had suffered significant
brain damage. It is common cause that Mr. Geldenhuys will never
be the same man again.
He sued defendants’
for damages in the sum of R4 540 777. 77 arising from brain injuries
suffered as a result of the incidents
of that evening. In terms
of the pleadings, plaintiff’s case was predicated on three causes
of action, namely:
alleged
assault by employees of defendant;
alleged
negligent failure to take reasonable steps to prevent plaintiff
from being injured whilst in the custody of employees of
defendant;
alleged
negligent failure on the part of defendants’ employees to observe
timeously that plaintiff was injured and to obtain the
necessary
medical attention so that plaintiff could have been properly
treated.
During the course of
proceedings plaintiff abandoned the second cause of action. The
trial focused then on the first and third causes
of action.
The case exhibited the somewhat
unusual quality that plaintiff did not testify. From the medical
evidence, it appears that he
suffers from a serious condition of
amnesia and accordingly would not have been able to provide any
testimony as to precisely what
occurred on 26
th
December
1998.
PLAINTIFF’S CASE
Mrs.
Bets Van der Heever testified that prior to the events on 26
th
December 1998, she had begun an intimate relationship with plaintiff.
On that day plaintiff had become extremely distressed as a
result of
the refusal of his daughter to participate in family Christmas
festivities. Mrs. Van der Heever said that during the
day the
plaintiff had taken ‘one or two’ Solutan tablets and drunk one
beer. At approximately 21:30 he went off to the Sports
Café in
Gordon’s Bay and did not return. She testified that as from
midnight she had made considerable efforts to ascertain the
plaintiff’s whereabouts including contacting the Strand and
Gordon’s Bay police stations .At approximately 12:00 on 27
th
December 1998 she again contacted the Gordon’s Bay police station
and was then informed that plaintiff had been held in the cells
at
the police station. When she arrived at the cells she was shocked
to find plaintiff in a half-naked state , suffering from
a number of
bodily scratches , bruises on the left eye which was both blue and
swollen as well as a bruise on his forehead. He
was rushed to the
Vergelegen Medical Clinic and at approximately 18:30 he was operated
upon by a neurosurgeon, Dr. Louis Wessels.
Captain Rooi, the
station commander at the Gordon’s Bay police station confirmed that
he had written a letter to appellant’s
attorneys which summarises
some of the key events. The letter reads as follows:
‘1.
Die inligting soos versoek is as volg:
Mnr.
Geldenhuys wat op 1998-12-26 om ongeveer 23:35 gearresteer is deur
Ser Stover vir dronkenskap, MAS 153/12/98, verwys
Mnr.
Geldenhuys is op dieselfde dag om 23:40 in selle geplaas en volgens
lede vry van ernstige sigbare beserings.
Mnr.
Geldenhuys se ongesteldheid is om 13:00 op 1998-12-27 deur Insp.
Brand en Sers. Cronje ontdek en die ambulans is ontbied.
Mnr.
Geldenhuys is op versoek van sy vriendin na Medi City Hospitaal
vervoer vir observasie.
‘n
Saak van aanranding op Mnr. Geldenhuys voor arrestasie, word
ondersoek. MAS 159/12/98 verwys. Ondersoekbeampte S/Sers Cloete.
Dit
staan u vry om op ‘n latere stadium weer navraag te doen ivm die
uitslag van ondersoek.’
Mr. Lee
Brett, who was at the time employed by the Western Cape paramedical
services station in Somerset West, testified that on
27
th
December 1998 at 13:33 he received a call from the paramedical
control centre that he should proceed with great haste to the
Gordon’s
Bay police station. He arrived at the police station some
eleven minutes later.
He found the plaintiff
lying in the cell ‘on the ground, on the concrete’ .He was
incontinent. Mr. Brett testified that when
he arrived at the police
station , he had approached the scene with ‘ tunnel vision because
we get the call as a query intoxication
and obviously when you go the
cells you always think of the worst scenario, not the worst scenario,
but the calls where people are
thrown into cells with intoxication
because they have had a bit to drink or a bit too much to drink.
But on arrival looking at
the patient it definitely was not an
intoxication call, a drunken call at all.’ He found that
plaintiff had a ‘black eye or
blue eye’ and a lump on the
frontal part of the skull.
He then
said ‘I thought the patient had a head injury, by taking his blood
pressure and stuff like that, his blood pressure was
sky high
indicating intracranial pressure from a head injury’. Mr. Brett
then went on to say ‘his condition was actually deteriorating,
his
what we call the Glasgow Coma Scale which determines your alertness
and responsiveness to people around you was, it was just
lowering and
lowering and lowering. Your Glasgow Coma Scale is normally out of
12, 15/15 is as you and I are here, we’re alert,
compos
mentis
and his when I got to him it was 8/15 and it
was just dropping and dropping and dropping, it had gone right down
to 3 which is totally
unresponsive at all, the lowest you can get is
3’. Mr. Brett was also asked, ‘ if you went into the cell, would
you have noticed
the patient was distressed’ ? to which he
answered, ‘yes, definitely. His body language was that of
distress. ’
Dr.
Louis Wessels was the neurosurgeon who performed the operation on
plaintiff on 27
th
December 1998. When he first examined
the plaintiff he found him to be unconscious, suffering from a
considerable amount of cranium
pressure and bleeding in the skull.
The visible injuries were bruising on the forehead and a blue eye.
Dr. Wessels testified
that the injuries sustained by plaintiff were what were referred to
as “contra coup” injuries. Dr. Wessels
explained this type of
injury thus, ‘Dit is beide frontale lobbe…om so ‘n
wydverspreide besering te verklaar, moet ‘n mens
aanvaar dat dit is
wat ons noem ‘n deselerasie besering. Nou wat die beteken is, as
die skedel in beweging is – ‘n mens sien
dit in tipiese
motorongelukke – as die skedel in beweging is en hy kom skielik tot
stilstand teen iets, dan beweeg die brein steeds
voort en die
maksimale trauma is nie aan die kant waar die skedel teen die iets
soos ‘n boom of ‘n muur of wat ook al stamp nie,
die maksimale
trauma is aan die agterkant want die voortbewegende brein en dit is
die sogenaamde “contra coup” besering.’
In dealing with the
operation which was conducted upon plaintiff, Dr. Wessels testfied
as follows,’ Die volgorde van gebeurtenisse,
die brein word
aanvanklik gekneus of geskeur. Die skeur kan gepaard gaan met ‘n
bloeding, soos wat ons gehad het, die bloeding
is verwyder. Die
operasie het niks aan die kneusing van die brein gedoen nie. Die
kneusing gee dan aanleiding tot swelling. Die
swelling gee
aanleiding tot ruimte-opneming van die skedel, want hy het nêrens om
na toe te swel nie, hy moet swel binne sy bepaalde
ruimte en dit
gebeur ten koste van bloedtoevoer na die brein en as die druk in die
skedel hood genoeg word, dan sny dit naderhand
die bloedtoevoer af
met sekondêre anoksiese skade aan die brein’ . The objective of
the operation was to ensure that blood was
drained from the cranium
so as to relieve the pressure.
In answer to a
question as to whether plaintiff’s prognosis would have been better
had he been brought to the hospital earlier,
Dr. Wessels said, ‘
soos ons netnou bespreek het met die kaskade van gebeurtenisse met ‘n
hoofbesering, is daar goed wat plaasvind
as gevolg van die drukking,
die swelling vererger, as gevolg van die swelling wat vererger neem
die druk toe en as gevolg van die
druk wat toeneem, neem die
bloedtoevoer na die res van die brein af. Nou daar kom ‘n punt
wanneer daardie veranderinge onomkeerbaar
is en hoe verder van
daardie punt af deur hom te kan behandel, met ander woorde hoe vroëer
jy hom kan behandel voordat daardie omkeerbaarheid
plaasvind, hoe
beter is die prognose en dit is duidelik gedokumenteer in daardie
studies”. He concluded that ‘is ek seker
dat ek die man kon
geopereer het op die stadium wat hy minder diep bewusteloos was en
voor hy begin braak het van sy verhoogde intra-kraniale
druk, kon sy
prognose sekerlik anders gewees het.’
On
behalf of defendant , Sergeant Stover testified that on 26
th
December 1998 he had been on duty .Responding to a complaint from a
Mr Du Toit that plaintiff was drunk and disorderly in Kloof
Street,
Gordon’s Bay, he arrived on the scene to find the plaintiff lying
on the ground in front of his vehicle. Plaintiff was
dressed in denim
pants, and a checked shirt which, at that stage, was not torn. Du
Toit was present on the scene and he told Stover
that plaintiff had
followed him as he and his wife drove home. Plaintiff then flicked
the lights of his car. When Du Toit stopped
his car, plaintiff had
insulted Du Toit’s wife. Du Toit pushed him to the ground.
With the assistance of
an unidentified person, Stover lifted plaintiff into the back of the
police van. Upon arrival at the police
station, police officers
Laver and Kruger assisted Stover to remove plaintiff from the van.
Plaintiff was unsteady on his feet.
Stover then reported to the
charge office. Upon his return, his colleagues informed him that
plaintiff had told them his name was
‘Gildenhuys’ or
‘Geldenhuys’.
Stover
testified that he undertook two cell visits at approximately 05:30
and 06:00. During the cell visit at 05:30 he had managed
to assist
plaintiff to rise to his feet, but he was extremely unsteady .
Stover let him lie down again and placed blankets over
him. He
considered plaintiff needed further time to detoxify.
At 06:00 Stover
undertook a second cell visit, this time in the company of Insp. de
Bruyn. He now noticed that plaintiff was not
properly clothed but he
did not take any action. He confirmed that during his first cell
visit at 05:30 he had observed that plaintiff
was suffering from a
blue eye. He was unable to explain why neither this injury nor the
lack of clothing was recorded in the
incident book.
Insp. de
Bruyn testified that she was on duty as commander of the service
centre on the night of 27
th
December 1998. She
confirmed that a complaint had been received from Du Toit about
plaintiff’s drunkenness in Kloof Street, Gordon’s
Bay on that
evening. She obtained an affidavit from Du Toit wherein he
essentially confirmed the version which Stover gave to the
court.
She testified that Stover had reported to her that plaintiff was
free of any visible injuries and she had written this
observation in
the incident book. She confirmed that she had visited the cells on
an hourly basis, had not gone into the cells,
but examined the
prisoners through the bars of their cells. According to her, there
was no lighting in the cells which would have
assisted in an
adequate examination of a prisoner through the cell bars during the
night. She conceded, however, that at that time
of the year, namely
December, there would have been adequate light when the cell visits
were conducted at 05:30 and 06:00 on the
morning of 27 December.
She was unable to explain why, having ascertained from Du Toit that
a fight had taken place between plaintiff and DuToit, she had
failed
to examine plaintiff with even a modicum of care in order to
ascertain whether he had suffered any injuries .She had simply
relied
upon Stover’s report that he had seen no injuries on the body of
plaintiff.
Insp.
Nico Cronje testified that he was on duty on the morning of 27
th
December 1998 and that he had taken over as commander from Insp. de
Bruyn. He further testified that, at approximately 8:00, he
had
visited plaintiff and had attempted to awaken him without success.
He said ‘ek het hom fisies geskud’ .He undertook further
cell
visits at 9:00, 10:00, 11:00 and 12:00 and he found plaintiff in a
similar condition. At 13:00 he again visited the cells
and
attempted to wake plaintiff. He then recognized plaintiff as “John
Geldenhuys” whom he knew from previous occasions.
He observed that
plaintiff had suffered a blue eye, and a bruise on the forehead. He
immediately summoned medical attention .Soon
thereafter Mr. Brett
arrived.
Cronje
testified that, during all his cell visits, plaintiff had lay on a
concrete slab in the cell as opposed to sleeping on
the floor. He
was unable to supply any explanation as to how plaintiff might have
moved from the floor to the slab (in the light
of other police
evidence that he had been found earlier on the floor)and then back
onto the floor again (where he was found by
Mr Brett). Cronje also
testified that Du Toit arrived between 9:00 and 11:00 on Sunday 27
th
December 1998. They had a conversation in which Du Toit had informed
Cronje that “hy het Mnr. Geldenhuys uitgesorteer”. Cronje
was
extraordinarily coy as to the precise meaning of “uitgesorteer”.
He was not sufficiently concerned however to undertake
a more exact
examination of plaintiff pursuant to the information which had been
given to him by Du Toit. During his visits he had
not noticed any
smell of alcohol on the breath of plaintiff.
On the basis of this
summary of the key evidence, it is now possible to examine the
substantive nature of the claims which were
advanced by plaintiff
namely, firstly that the plaintiff might have been assaulted by
employees of defendant and secondly that there
was a negligent
failure on the part of defendant’s employees to observe timeously
that plaintiff was injured and thus to obtain
the medical assistance
for the injured prisoner.
No evidence was led
to justify a finding, on a balance of probabilities , that plaintiff
was assaulted by police. Mr. Heunis ,
who appeared on behalf of
plaintiff , submitted that all the police officers who testified on
behalf of defendant gave evidence
in an unsatisfactory manner. Of
these witnesses he contended that the best was Sergeant Stover who
testified that, when he arrested
plaintiff, the latter was fully
clothed, the clothing was in a good state of repair and there was no
visible injury. On this basis,
Mr Heunis submitted, on the
probabilities, that the injuries sustained by the plaintiff to his
knees, feet and the tearing of his
clothes must have occurred after
arrest. That is however the high water mark of plaintiff’s case,
that the assault was carried
out by one or other members of the
police force. There is no other evidence which would justify such
a conclusion. None of the
evidence which was lead by plaintiff
supported such a finding nor was any of the evidence which was lead
by defendant even indicative
of such a conclusion. In my view,
plaintiff failed to discharge the onus in so far as the claim of
assault by employees of defendant
is concerned.
That leaves the second
leg of plaintiff’s case for consideration , being the allegation
of a negligent failure on the part of
defendant’s employees to
make the necessary observations and to obtain medical assistance for
plaintiff with reasonable expedition.
Before moving to this
analysis, it is necessary to record that as at the close of
plaintiff’s case, Mr Albertus applied for absolution
from the
instance in that plaintiff had failed to adduce sufficient evidence
upon which a reasonable court could find for him. The
application
was dismissed in that it was found that, absent any further evidence
a reasonable inference could be drawn from plaintiff’s
case as to
the negligent conduct of defendant.
EVALUATION OF EVIDENCE WITH RESPECT
TO THE ALLEGED NEGLIGENT FAILURE TO MAKE THE NECESSARY OBSERVATIONS
AND TO OBTAIN MEDICAL ASSISTANCE
FOR PLAINTIFF
When
the question of a police omission is concerned, there is far more
evidence to consider and evaluate. Much of Mr Heunis’
argument
concentrated on the unreliability of police evidence. In particular
Mr Heunis made use of the following examples. Stover
claimed that
plaintiff supplied his name, whether it be Gildenhuys or Geldenhuys
to his colleagues Laver and Kruger. Dr. Wessels
found it highly
unlikely that, given the nature of plaintiff’s brain damage, he
could have so provided his name to the police
officials.
Mr. Heunis also
referred to Stover’s evidence that at 05:30 ,when he visited the
cells, he managed to ensure that plaintiff,
however unsteadily, rose
to his feet, albeit for very short time. Dr. Wessels testified that
the injuries sustained by plaintiff
made these actions highly
unlikely in that plaintiff would have remained in a deep coma. On
this point, it is important to note
even at this stage of the
analysis, that Dr. Badenhorst, who testified on behalf of
defendant , found that plaintiff’s rising
unsteadily was
consistent with the nature and degree of the head injuries
sustained. His opinion was grounded on recorded variations
of the
reading of plaintiff’s Glasgow coma scale, which had been taken by
Mr. Brett and Dr. Wessels. I shall return to this medical
evidence
later.
Mr. Heunis also placed emphasis
upon police evidence concerning the position in which pliantiff was
located in the cell during
his sojourn at the police station.
According to the evidence of Stover and De Bruyn , plaintiff lay on
the floor during the various
visits which they conducted to the
cells. By contrast Cronje testifed that , when he visited
plaintiff’s cell during the morning
of 27
th
December
1998, he found plaintiff sleeping on the cement block. Mr. Heunis
contended that there was no plausible explanation as
to how a person
in plaintiff’s condition could have lay on the floor initially and
then managed to hoist himself onto a raised
cement block, some one
metre above the ground.
Mr. Heunis also
focused on other aspects of the police evidence. Insp. De Bruyn was
unable to explain the manner in which the SAP
22 form was signed.
This form is a prisoner’s receipt in respect of possessions which
have been taken from a prisoner on arrest
. The signature of the
member receiving the property is required; self evidently a member of
the police force. In the space allocated
for such signature the
words “te dronk om te teken” appeared. An examination of the
form shows that the only time that the
prisoner is required to sign
is upon receipt of the goods when he is required to certify that
they such possessions are “complete
and in good order”. Insp.
De Bruyn gave no satisfactory explanation as to how it came about
that the words “te dronk om te
teken” were included on the SAP
22. Whatever the significance of such an insertion , it is clear
that she knew that she was dealing
with a person who was seriously
indisposed, whether or not as a result of alcohol abuse.
Stover and De Bruyn were unable
to explain why no report was made about injuries which Stover
ascertained had been suffered by
plaintiff as at 05:30 on the morning
of 27
th
December 1998 nor about the fact that Du Toit
had informed Stover that an altercation had taken place between
himself and plaintiff.
Mr. Heunis correctly
focused on the dismal performance of Insp. De Bruyn as a witness.
All too often she was evasive ; on numerous
occasions her
explanations amounted to “ek weet nie” or “dan moet dit so
wees”. This was generally her response when
confronted with clear
contradictions between her testimony and other evidence. When
responding to questions about an official
police investigation
concerning allegations of police assault on plaintiff, she showed no
interest therein nor did she claim to
have any interest in the fate
of someone who had been so seriously injured during the period
wherein he had been in her custody.
In
short, not only was she an unreliable witness but she revealed an
alarming lack of care and concern for a prisoner. The manner
of
her performance in the witness box represented the very antithesis
of the kind of police which a democratic South Africa should
expect.
Cronje was in many ways the most
significant of defendants’ witnesses. He admitted that he knew
the plaintiff and indeed confirmed
that, after the events of 27
th
December he had visited the plaintiff at Mr. Van der Heever’s home
, the address of which he knew. Prior to plaintiff’s arrest,
he
appeared to have known plaintiff rather well. For some reason
however he only purported to recognize plaintiff at 13:00
on 27
th
December 1998. He was unable to give any explanation as to why ,
notwithstanding cell visits as at 9:00, 10:00 11:00 and 12:00 ,
he
had so failed to identify plaintiff.
At a rather unguarded moment of
his own testimony he said ‘hier lê die man, hy is aangerand’. Of
similar significance was
his testimony relating to the discussions
which he had with the mysterious Mr. Du Toit on the morning of 27
th
December 1998 between 9:00 to 11:00. According to Cronje, Du Toit
had told them that ‘hy het die persoon uitgesorteer nadat hy
sy
vrou beleedig het’. When pushed as to the meaning of
‘uitgesorteer’, Cronje became extremely evasive. He suddenly
resorted
to the kind of evidence which would have made proud an
expert in hermeneutics. He gave a number of meanings for
‘uitgesorteer’
and simply refused to accept that it
conventionally meant to physically render plaintiff somewhat
compliant. He was never
able to explain how it was that ,after
having been informed by Mr. Du Toit that the latter had physically
accosted plaintiff, he
failed to examine the plaintiff more closely
during any of the later cell visits.
Cronje
proved to be a significant witness, not only due to his testimony
but also because of his demeanor .On occasion he
was close to
tears and at one point , after a lengthy pause, he appeared very
close to taking the court into his confidence.
DEFENDANT’S VERSION
Mr. Albertus, who appeared together
with Mr. De Villiers-Jansen on behalf of defendant emphasized the
version of the police witnesses,
namely that plaintiff had been
arrested free of observable injuries as a result of being drunk and
disorderly in public. According
to Stover’s evidence he only
observed any visible injury , being a black eye which he noted at
05:30 on 27
th
December 1998. Mr Albertus also emphasized
the evidence of Captain Rooi, the station commander , namely that it
would have been
unreasonable for police officers to wake plaintiff
during the course of the night to carry out a physical examination,
particularly
in circumstances where there had been no previous
indication that the prisoner had suffered a serious injury.
For these reasons, Mr. Albertus
submitted that the evidence could not sustain a finding, on the
probabilities, that the police should
reasonably have foreseen that
plaintiff had suffered from organic brain damage. Furthermore he
submitted that, in the absence of
any medical knowledge on the part
of the police, it was unreasonable to conclude that such a diagnosis
could have been obtained
by a lay person when the prisoner had
been arrested for drunkenness and no significant physical injury
had been ascertained.
Relying on a dictum of Scott JA in Sea
Harvest Corporation v The Duncan Dock Cold Storage 2000(1) SA
827(SCA) at 840 B-E. Mr.
Albertus submitted that, although the
precise or exact manner in which the harm occurred need not be
foreseeable , the general manner
of its occurrence must be reasonably
foreseeable. In the circumstances of a person untrained in medical
science who was confronted
with plaintiff in the circumstances of
this case being a person initially arrested as a result of a report
of drunken behaviour,
it was not reasonable for police officers to
have suspected that the plaintiff had suffered brain damage which
would have required
that they called for medical attention earlier
than they did.
It is trite to
remark that evidence must be examined holistically. If each
witnesses’ testimony is taken separately, it may
have been
possible to provide a plausible explanation for the difficulties
which this court encountered with regard to the evidence
given by the
police. Viewed as a whole, however , there are significant problems
with the version provided by defendant. When
Stover arrested
plaintiff he claimed he smelt a considerable amount of drink and that
he plaintiff was effectively paralytic. Shortly
thereafter, and
contrary to the medical testimony of Dr. Wessels, plaintiff was able
to provide the police with his name or a least
a slurred version
thereof. The police, on at least three occasions (the three
encounters with Mr. Du Toit whose role in the tragic
events which
engulfed plaintiff as well the reaction of the police to such role
were never explained) were informed that a physical
quarrel had taken
place between Du Toit and plaintiff. In other words, at some point
in the many hours in which plaintiff languished
in the cells, it
would have been reasonable to have expected the police to have
examined plaintiff more carefully, particularly in
that they had
gained information that plaintiff had been involved in some form of
physical encounter. No explanation was offered
as to how his
clothing came to be torn. There was no adequate explanation as to
how a person in plaintiff’s condition was able,
at various times,
to move from the floor to a raised cement block, a move which
would have required a considerable measure of
effort .
When Mr. Brett reached
the cells he found plaintiff in a shocking condition in which he
found plaintiff. Plaintiff lay in a fetal
position . He was
incontinent. He lay naked with his pants and shirt removed from
his body .He had a blue eye and there
was noticeable swelling on
the forehead. By contrast, according to Cronje’s testimony , he
noticed no such condition during
his earlier visits at 9:00, 10:00,
11:00 and 12:00 . The sudden change within one hour - between 1200
and 1 00 -was never properly
explained .Neither Insp. De Bruyn nor
Sergeant Stover proffered an adequate reason as to why a further
examination of plaintiff
was not undertaken at 05:30 when it was
clear that certain injuries had been observed by Stover. De Bruyn
was unable to explain
as to how none of this appeared in the incident
book.
When the police
evidence is so examined, clear credibility findings are justified
against both Insps. De Bruyn and Cronje. Further,
the evidence of
Sergeant Stover was less than satisfactory. None of the police
witnesses came across confidently or honestly.
When their evidence
is tested against the objective facts of plaintiff’s condition (
both at the time that he was arrested and
properly clothed and when
found by Mr Brett) their failure to note any serious condition in the
incident book and certainly, in the
case of Insp. De Bruyn who was in
control of the police station for some considerable period, the
total lack of care which she exhibited
serves to justify but one of
two conclusions namely, (1) that the police were aware of plaintiff’s
condition and did nothing
to render assistance; or (2) that they
failed to act reasonably in that a reasonable person in their
position would have seen
the condition in which plaintiff languished
during the period of his stay in the cells and would have summoned
medical attention
far earlier than was done by Insp. Cronje.
It is not possible to
determine with any measure of precision as to when medical attention
should have been so summoned. The manner
in which the defendant’s
witnesses performed in the Court is indicative of such a measure of
deceit it designed to present the
inference that a reasonable police
officer would have sought medical assistance at the very time or
shortly after the arrest. At
the very least, had Stover and De
Bruyn performed their cell visits adequately between 05:30 and 06:00
in the morning, that is some
seven hours after plaintiff had been
arrested, medical assistance should have been called in that they
ascertained that he was injured.
APPLICATION OF DELICTUAL PRINICPLES
It is
perhaps trite to set out the well-known elements of the modern
Aquilian action, but for the purposes of analysis , a recapitulation
assists to promote the internal coherence of this judgment. The six
elements are
voluntary
conduct;
unlawful
or wrongful;
capacity;
fault either in the form of
dolus
or
culpa ;
causation
;
loss.
As I
have already concluded, the requirement voluntary conduct in this
case can only take the form of an omission . Since the
judgment of
Rumpff CJ in Minister van Polisie v Ewels 1975(3) 590 (A) at 597A
, it has been clear that our law of delict includes
an omission
within the concept of voluntary conduct .In that case Rumpff CJ
found as follows ‘ Dit skyn of dié stadium van
ontwikkeling
bereik is waarin ‘n late as onregmatige gedrag beskou word ook
wanneer die omstandighede van die geval van so ‘n
aard is dat die
late nie alleen morele verontwaardiging ontlok nie maar ook die
regsoortuiging van die gemeenskap verlang dat die
late as onregmatig
beskou behoort te word en dat die gelede skade vergoed behoort te
word deur die persoon wat nagalaat het om
daadwerklik op te treë. ’
Although this element as well as that of wrongfulness were not
contested by defendant in the present case, it is as well, given the
importance of this dispute to future conduct of the police, to
consider the element of wrongfulness within the present context.
In an
exhaustive analysis of the manner of judicial determination of
wrongfulness , Francois du Bois, (‘Getting wrongfulness
right: A
Ciceronian attempt’
2000
Acta Juridica
1
at 33ff )sets out
four themes which are illustrative of the key considerations taken
into account by courts in investigating wrongfulness.
Briefly stated
these themes can be set out thus:
Courts
are reluctant to impose delictual liability in cases where the
enforcement of a duty in delict may disrupt a contractual
allocation
of rights and duties.
A
finding of wrongfulness may be excluded where the law of delict
lacks jurisdiction because the event complained of is of such
a
nature that the legal determination of the defendant’s duty to
the plaintiff , being the application of the element of fault
cannot be expected to reflect that person’s obligations correctly.
Of particular relevance to this issue is the recognition
by the
law of a sphere of decision making autonomy , which makes the
context of the dispute unsuitable for a judicial determination.
The
extension of wrongfulness will not be easily undertaken where the
rights and duties that are at issue have economic value and
the
market provides a mechanism for distributing these in circumstances
that could function as an alternative to adjudication
.
The
consideration that an extension of wrongfulness would open the
“flood gates” of litigation;a point made by Toon Van den
Heever
as follows’ If every individual were liable for failure to protect
others against loss, each would be compelled in order
to avoid
liability, to run around and busy himself with the affairs of his
neighbours, to the neglect of his own, which would
lead to chaos”.
(Aquilian Damages in South African Law (1944) at 37.)
Manifestly it is the fourth theme which is of application to the
present case. The decision in Ewels
supra
establishes the
principle of wrongfulness within the context of police conduct,
particularly where the police omit to perform their
custodial
duties towards prisoners under their control. The only possible
problem could concern the argument about ‘floodgates’
of
litigation. In considering the remaining three themes, the
aggrieved litigant has no recourse to an alternative remedy ,
public bodies may well require autonomy to engage in activities
which may assist in the transformation of our society but
the
paramount obligation of such bodies is to act within the
framework of the constitution .
This
point is made clear by the Constitutional Court in Carmichelle v
The Minister of Safety and Security and Another 2001(10)
BCLR 995(C)
in which the court required that the specter of the “flood gates”
argument be carefully interrogated .The precise
nature , scope and
meaning of the
ratio
in the
Carmichelle
case requires
some explication . Suffice to say, however, that the court set
down a dictum about the influence of the fundamental
constitutional
values on the common law mandated by section 39(2) of the
Constitution .Within the matrix of this objective normative
value
system the common law must be developed (at para 55). This requires
,not only a proper appreciation of the Constitution and
its objective
normative value system, but also a proper understanding of the
paradigm of the common law. (at paras. 54-55).
Although Ackermann
and Goldstone JJ cautioned against ‘over zealous judicial reform’,
an extension of the element of wrongfulness
within the context of
police action is based upon the common law dictum set out in Ewels,
supra
and flows from ‘a proper appreciation of the
constitution and its objective normative value system’ which seeks
to establish
a society based on human dignity, equality and freedom
and institutions of government which are open, transparent and
accountable
to the people whom they serve. The content of this
normative system does not only depend on an abstract philosophical
inquiry but
rather upon an understanding that the constitution
mandates the development of a society which breaks clearly and
decisively from
the past and where institutions which operated prior
to our constitutional dispensation had to be instilled with a new
operational
vision based on the foundational values of our
constitutional system.
The facts of this case recall a sad part of the apartheid past, of
individuals left to die in cells, of a systematic destruction
of
human dignity of people who were in the custody of the police. That
was our past and it can no longer be our future, for if
it is, then
the wonderful aspirations and magnificent dreams contained in the
constitution will turn to post-apartheid nightmares.
The
transformation of our legal concepts must , at least in part , be
shaped by memory of that which lay at the very heart of our
Apartheid past . When considering the conduct of police action,
the past is of great importance in assisting to shape legal
concepts which are congruent with our constitutional future.
As a member of the
South African community plaintiff was deserving of the utmost concern
and respect from a critical custodian of
our constitutional order,
the police in whose care he had been placed. The internal rules of
the police mandate an hourly cell
inspection. It is not too much to
expect that the police officer mandated with this task should spend
but a few seconds longer to
ascertain the health and welfare of her
captives. That in itself is a complete answer to any suggestion
that such a delictual
obligation will impose excessive burdens upon
the police or may result in a flood of litigation whose benefits
would then be
far exceeded by the costs of unnecessary litigation .
While
not contesting the existence of wrongfulness, Mr. Albertus vigorously
contested plaintiff’s claim regarding the alleged
negligent
failure to observe timeously the injuries sustained by plaintiff and
to summons medical attention. He submitted that,
if the plaintiff
had a visible wound and had complained thereof, the police would have
been under a clear duty to act. In the circumstances
of this case ,
police could not be considered to be negligent in that there were
no visible injuries and even an approximate
diagnosis would have
required expert medical knowledge. He placed considerable emphasis
on the evidence Dr. Badenhorst’s, namely
that it was not uncommon
even in hospitals for trained medical personnel initially to confuse
symptoms presented by a brain injured
person with drunkenness. He
further referred to Dr. Badenhorst’s evidence that a black eye and
the bruise on the forehead, which
could have been occasioned prior to
arrest, might have only become observable many hours after the
arrest.
Mr Heunis referred to Insp. Cronje’s acknowledgment that police
did receive courses in first aid. He sought to make a connection
between this knowledge and the evidence of Dr. Wessels , who, when
asked specifically about whether someone with elementary medical
aid
training would have perceived that plaintiff’s condition might not
have been completely attributable to drunkenness said ‘
ek dink
enige iemand wat elementêre noodhulp onderrig gehad het , behoort te
weet as ‘n mens nie sy volle bewussyn is nie , is
daar ‘n paar
oorsake daarvoor , onder ander dronkenskap maar dronkenskap is
omkeerbaar”.
Were the dispute only
about whether, upon arresting plaintiff Sergeant Stover should have
ascertained that plaintiff was in serious
distress caused by a
condition other than intoxication, Mr. Albertus’ submission might
have had considerable force. However the
conduct of the police
officers needs to be seen in the context of all the available
evidence. For the reasons already articulated,
the police officers
on duty at the time of plaintiffs’ custody found nothing
untoward with his condition for some fourteen
hours .To counter the
clear inferences that they were negligent in leaving plaintiff to
suffer for this long period, they produced
a range of
contradictory explanations to explain their conduct. Their evidence
supports a conclusion that they failed to act
reasonably in the
circumstances of this case ,namely to observe ,at a far earlier
stage, that plaintiff had been injured and that
he was in desperate
need of proper medical attention.
In summary, the police
on duty were required in terms of police standing orders to perform
hourly cell visits. At the most there
were only three prisoners in
the cells on that night. To expect that a proper cell visit should
have been conducted in such
circumstances was hardly unreasonable;
indeed a proper cell visit must constitute part of the purpose of
such mandated cell visits.
On the basis of the evidence given by
the three police officers, only one of two conclusions can be drawn,
namely, they ignored
plaintiff’s condition or did not bother to
even examine him; significantly after knowing that he had been
involved in a
physical altercation. The unsatisfactory nature of
the evidence given by all three officers is indicative of an
unreasonable
failure to observe that plaintiff was severely
injured. The duty imposed on such officers pursuant to their cell
visits was not
to diagnose the condition of plaintiff but to summon
proper attention for a person in their custody who was in distress.
For
these reasons, I find that the conduct of defendant’s
employees was negligent.
CAUSATION
Ms
Jennifer Luyt ,a clinical psychologist , conducted a series of tests
on plaintiff. She concluded that he was unable to work
at any level
to support himself financially. Dr. Wessels concluded similarly in
his report,that ‘ die beseering het bestaan uit
veelvouldige
serebrale kneusings frontale serebrale laserasie en is sekondêre
hiertoe ‘n sub-.durale intra kraniale bloeding’.
Although Dr.
Badenhorst did not dispute the nature of the injury, he suggested in
his written report that ‘die pasient is opvallend
nie heeltemal
werkongeskik nie’. However in his testimony he qualified this
conclusion to the point, that no significant difference
was raised
between his conclusion and that of Dr. Wessels and Ms. Luyt. As he
said, ‘ Ek maak dit op grond af aan dat hy nog
kan praat met my.
Dat hy ‘n gesprek kan voor. Dat sy arms en sy bene funksioneer nog.
Ek praat van totale werksongeskiktheid
, met ander woorde soos wat
ek so moes doen vir die doeleindes vir ‘n ondersoek van
versekering. Ek praat van totale werksongeskiktheid
vir enige werk
van enige aard, maar ek dink die res van die paragraaf moet
aaneenlopend daarmee gelees word’. He then went on
to say , albeit
reluctantly, ‘die kern van die gedagte is heeltemal totaal, ek
stem saam sover hy nooit die werk sal kan doen
wat hy gedoen het
nie… hy nooit weer enige soortgelyke werk sal kan doen wat
werkyver en oordeel van hom sal vestig nie’.
The
crisp issue is whether the negligence of defendant’s employees
caused plaintiff to be placed in his present condition. Of
causation
Corbett, JA (as he then was) said in International Shipping Company
Limited v Bentley 1990(1) SA 680 (A) at 700E-H
’[c]ausation
involves two distinct enquiries. The first is a factual one and
relates to the question as whether the defendant’s
wrongful act
was a cause of the plaintiff’s loss .This has been referred to as
‘factual causation’. The enquiry as to factual
causation is
generally conducted by applying the so-called ‘but for’ test,
which is designed to determine whether a postulated
cause can be
identified as a
causa sine qua non
of the loss in question.
In order to apply this test one must make a hypothetical enquiry as
to what probably would have happened
but for the wrongful conduct of
the defendant…If the wrongful act is shown in this way not be a
causa
sine qua non
of the loss suffered, then no legal
liability can arise. On the other hand, demonstration that the
wrongful act was a
causa sine qua non
of the loss does not
necessarily result in legal liability. The second inquiry then
arises , viz whether the wrongful act is linked
sufficiently,
closely or directly to the loss for legal liability to ensue or
whether, as it is said, the loss is too remote.’
In the present dispute
the question of factual causation is critical. According to the
evidence of Dr. Badenhorst, plaintiff’s
brain injury was in the
nature of a haemoragic contusion involving, the frontal lobes and to
a lesser extent the temporal lobes.
The subdural bleeding was
secondary to the contusion, a point confirmed by Dr. Wessels. The
craniotomy performed by Dr. Wessels
drained blood from the brain and
thereby increased plaintiff’s level of consciousness.
Both medical experts
agreed that the operation could not repair the contusion which had
taken place at the time of the forceful impact
to plaintiff’s
brain.
The dispute
between the two medical experts concerned the possible effect of an
earlier operation by Dr. Wessels to drain blood from
plaintiff’s
brain. Dr. Wessels testified ‘ek (is) seker dat as ons die man kan
opereer het op die stadium wat hy minder diep
bewusteloos was en voor
hy begin braak het van sy verhoogte inter-kraniale druk, kon sy
prognose sekerlik anders gewees het’.
He went on to explain
that, as a result of blood on the brain and the consequent swelling,
a considerable amount of pressure was
exerted on the rest of the
brain and then ‘daar kom ‘n punt wanneer daardie veranderinge
omkeerbaar is en hoe verder van daardie
punt af deur hom te kan
behandel, met ander woorde hoe vroëer jy hom kan behandel voordat
daardie omkeuringbaarheid plaasvind, hoe
beter is die prognose en dit
is duidelik gedokumenteer...’ Under cross-examination he confirmed
that, had he not so operated on
plaintiff, the latter would have
died.
By contrast, Dr.
Badenhorst testified that an earlier operation by Dr. Wessels would
have had no tangible effect on plaintiff’s
post-traumatic
condition. He then said the following, ‘ as die vraag gestel word
of dit enige effek gehad het, is dit moeilik
om met sekerheid
heeltemaal nee te antwoord, maak ek dink die impak ‘n deel daarvan
moes klein gewees het, ek dink dit so ‘n
nietige of ‘n
onbelangrike verskil gemaak het, indien enige verskil’. His
motivation for this conclusion was that the essential
injury
sustained by plaintiff was damage to the frontal and to a lesser
extent the temporal lobes to the brain. No operation
which would
be performed after such injury could have repaired such damage.
There was agreement
between the two medical experts that the essential brain injury
sustained by plaintiff was in the nature of
a haemoragic contusion of
the front and, to a lesser extent, the temporal lobes. Both
experts agreed that the fundamental cause
of plaintiff’s present
mental and physical condition was caused by the application of force
(such as assault) which occasioned
the brain damage to which
reference has already been made. The critical dispute turns on a
possible difference that might have
resulted from plaintiff been
taken to hospital and having been operated on earlier.
The court is therefore
faced with having to evaluate competing accounts of two experts and
then making a determination on the basis
of one such opinion.
As the
court noted in R v Morela 1947(3) SA 147(A) 153 ‘But the court or
the jury, in cases of the present kind, has not the special
training
to enable to act on its own opinion; it really decides whether it can
safely accept the experts opinion’. Where in a
case such as the
present when the experts differ, the court must decide which of the
competing experts is the most credible. See
CWH Schmidt
Bewysreg (4de uitgawe) at 469.
There
are dicta which provide some assistance in the determination of which
expert to prefer in this case. In S v Gouws 1967(4)
SA 527 (EC) at
528 D, the courts said ‘the prime function of the experts seem to
me to be to guide the court to a correct decision
on questions
falling in within his specialised field. His own decision should
not, however, displace that of the tribunal which
has to determine
the issue to be tried”. In
Reckitt and Colman (Pty) Ltd v S C
Johnson and Son SA (Pty) Ltd
1993(2) SA 307(A) at 315 E Harms
AJA (as he then was)said ‘The evidence of psychologist and
linguistic experts tendered in this
regard were singularly helpful,
if not inadmissible, because, as is so often the case, in the final
analysis had tended to disguise
opinion as a statement of scientific
principle or fact and attempted subtly to displace the Court’s
value judgment with that of
the witness’.
In my view, Dr.
Wessels gave his evidence dispassionately and performed his role as
an expert in attempting to guide the court
on matters of
neurological injury. He made no concession to either party in his
attempt clinically to provide answers to the court.
By contrast Dr.
Badenhorst seemed at times to forget his prime function as an expert
and on occasion appeared to be more of an advocate
for defendant’s
case. On a number of occasions , when pressed to reconcile his
evidence in favour of defendant with adverse
certain facts which were
common cause, he would pause for a relatively considerable length of
time and then provide some speculative
answer to save his own
opinion and promote defendants case. Rarely did he make any
concession , even when it was patently called
for in the
circumstances. I should add that the long pauses in his testimony
were not designed so much to collect his thoughts,
but rather were
indicative of an often herculean attempt to find a answer in
support of defendant rather than to concede the
clear difficulty
with the approach which he had initially adopted.
The
record contains a number of such examples .For the purpose of this
evaluation two examples suffice. At one point, when asked
by court
how he reacted to the evidence of Dr. Wessels that it was highly
unlikely that someone who had suffered such serious brain
damage
would be able to answer a question as to his name, Dr. Badenhorst
said, “ek dink dit is moontlik” .He was then asked
“is dit
moontlik?” to which he answered, “dit is die beste wat ek kan
sê”. Had he been functioning as an expert guiding
the court he
would have been more candid and agreed that the more plausible answer
was that it was highly improbable that plaintiff
would have
proffered his name, particularly within the context of Dr.
Badenhorst’s major point, namely that the time of the injury
was
best determined by when the most considerable loss of consciousness
had occurred. Dr Badenhorst had previously testified that
the injury
to the brain had probably taken place before arrest – that is when
plaintiff was at his most unconscious. Once this
evidence is
accepted, it is self-evident that a relatively short time had
lapsed from that time when plaintiff suffered his
greatest loss of
consciousness to the time he was supposed to have supplied his name
to Laver and Kruger. On the basis of Dr Badenhorst’s
own analysis
, it would have been highly unlikely that plaintiff would have
been sufficiently conscious to answer questions about
his name in
the manner suggested by defendant’s witnesses.
The second example
turns on the varying accounts of police witnesses that plaintiff
slept both on the floor at times and later on
a concrete slab raised
one meter from the ground.
Dr. Wessels testified
that it was highly unlikely that plaintiff, suffering as he was from
serious brain injury, would have been able
to lift himself unaided
from the floor and position himself on a concrete slab raised at
least a meter from the floor. Dr. Badenhorst’s
initial response
was the following, ‘voor daardie brokie inligting aan my gegee is
so ek gesê het nee man, ek dink dit is meer
waarskynlik dat hy
opgehelp is .Daardie beteken dat hy teen minste op sy voete kon kom
en kon staan. Ek weet nie, dit klink minder
waarskynlik, maar dit is
minder versoenbaar met trauma op enige stadium.’ Shortly
thereafter he proffered an explanation in an
attempt to reconcile his
version with this difficulty by suggesting that the varying figures
given by Mr Brett and Dr Wessels in
respect of the results of
plaintiff’s Glasgow coma scale might have been indicative of
fluctuating levels of consciousness. En
passant, Mr Brett testified
of plaintiff’s plunging Glasgow coma scale rather than a
fluctuating one.
Dr. Badenhorst
was not prepared to make any concession which would disturb the
general thrust of his evidence, even if it meant trying
to find some
speculative reason. Viewed accordingly, the evidence of Dr. Wessels
is to be preferred. I am fortified in this conclusion
by the fact
that Dr. Wessels had the opportunity of examining plaintiff upon
arrival at the hospital and had first hand experience
of his
condition by virtue of the fact that he conducted the operation. By
contrast Dr. Badenhorst was called at a later point by
defendant, he
had to work with ex--rays and information provided to him by
defendant and never had the benefit of first hand experience
of
plaintiff’s condition.
DAMAGES
Plaintiff
has claimed the following amounts from defendant in respect of
damages allegedly suffered;
R107
177, 77 in respect of estimated past medical expenses;
R983
400, 00 in respect of estimated future medical expenses;
R2
745 200, 00 in respect of estimated past and future loss of income;
R750
000, 00 in respect of general damages.
Of these amounts only
the sum of R107 177, 77 in respect of past medical expenses was
admitted by defendant.
The only evidence
produced by plaintiff to justify his claim for loss of income was
that of his ex -wife Mrs. Geldenhuys. The essence
of her testimony
was to support the claim that plaintiff earned approximately R40 000,
00 per month at the time of his accident.
The Geldenhuys’ had
lived separately since August 1998, that is some four months
prior to the arrest of plaintiff. Mrs Geldenhuys
testified that
plaintiff had been sequestrated during 1992 and that he had remained
an unrehabilated insolvent. He had then conducted
a business as a
second hand car dealer through a close corporation of which Mrs.
Geldenhuys was the only member. She was not involved
in the business
and could not specify, with any measure of exactitude, as to the
earnings of the close corporation. This close
corporation was
liquidated at a later stage and it appeared to be common cause that
all the corporation’s financial statements
had been lost by the
liquidator .No inference could be drawn from the loss of such
accounts, but as a result there was little concrete
evidence from
which the court could base its assessment of past earnings.
Mrs. Geldenhuys
testified that, at varying times during 1990’s, they had lived in
a house in Grabouw and then on a farm in Worcester.
In 1997
plaintiff sold the farm and chose to live in Gordon’s Bay,
acquiring a house which plaintiff transferred to the Gail Geldenhuys

Family Trust. The bond repayment was in the amount of approximately
R6 000, 00 a month and later escalated to R8 000, 00 a month.
The
house was eventually sold in 1999. Plaintiff drove a Landcruiser
Discovery and his wife drove a BMW 535. She estimated that
the cost
of the operation of these vehicles amounted to some R10 000, 00
per month. In addition she estimated that the monthly
domestic
expenditure which fell directly under her control amounted to between
R5 000, 00 to R6 000, 00 during 1997. Life policies
which had been
taken out by plaintiff cost a further R3 000, 00 to R3 500, 00 a
month.
In short Mrs.
Geldenhuys’ evidence indicated that ,given the standard of living
enjoyed by plaintiff and his family, an income
of R40 000, 00 a month
was not an unrealistic estimate.
Mr. Albertus
questioned the accuracy of these estimates and drew attention to
certain redrafted income statements of the close corporation
which
had been prepared by the South African Revenue Services, pursuant to
a tax investigation. These figures revealed that between
1993 and
1998 the close corporation made losses throughout this period save
for two years , being 1994 and 1995 when profits were
insignificant.
While the reconstructed income statement certainly did not support
the testimony of Mrs. Geldenhuys, no evidence
was proffered by
defendant as to explain the basis of such a document. Accordingly
there is a difficulty in drawing firm conclusions
from these
income statements. For example , from 1994 until 1998 , significant
amounts of commission were reflected in these
statements .To whom
these amounts were paid is unknown; it is possible that plaintiff was
the recipient. Significant expenses
in addition to the cost of
sales were not explained and therefore the possibility remains that
from such significant expenses,
much of the domestic expenditure to
which Mrs. Geldenhuys made reference was paid.
Other than this
document, defendant produced no evidence to question this testimony
nor was there any reason raised to disbelief
the amounts which she
claimed constituted the expenditure which had been paid by plaintiff
until August 1998.
A gross annual
income of R480 000, 00 is hardly a princely purse when the
expenditure and lifestyle to which Mrs. Geldenhuys
and Mrs. Van der
Heever testified is taken into account.
Plaintiff called
consulting actuary Mr. Reg Munro to testify as to the loss of past
income and future income. Mr. Munro based his
calculations on an
assumed earning of R40 000, 00 per month which increased with
allowance being made for inflation, to R46 119,
00 per month at the
date of calculation. He also assumed that plaintiff would have
continued to earn this amount (increasing with
inflation) until the
age 65.
On the basis of
these assumptions, he estimated that the loss of past income
amounted to R881, 900, 00 and the loss of future
income to R1 863
300, 00. No account was made for any real increase in plaintiff’s
real income of R40 000, 000 per month as at
December 1998.
In evaluating this evidence , the
dictum of Corbett CJ in Caxton Ltd and Others v Reeva Forman (Pty)
Ltd and another 1990(3) SA
547(A) at 573I is of particular relevance,
namely, ‘In my view, this is the type of case where the Court
must do the best
it can on the material available…And in the
nature of things the Court’s assessment of the loss here cannot be
more than a rough
estimate’.
In the
present case , the court must do the best it can on the available
evidence even if that amounts to no more than a’ rough
estimate.’
On the strength of Mr. Munro’s evidence which was not contested
by defendant and that of Mrs. Geldenhuys, I am
satisfied that the
amounts claimed for loss of past income and future income based on
the Munro report are justified. Plaintiff
sought to substantiate his
claim for future medical expenses on the evidence of a physician Dr.
Roos who he had consulted on a number
of occasions, together with
that of Dr Wessels and also the evidence of Ms Luyt, who
testified with regard to the necessity
of future psychological
evaluations and the desirability of locating plaintiff in an old
age home or similar institution.
Both Dr. Roos and Dr.
Wessels sought to substantiate plaintiff’s claim for future medical
costs with reference to the costs of
anti-epileptic therapy,
anti-hypertensive medication, medication to treat diabetes including
consultations with medical practitioners
and hospital treatment.
Little of this
evidence was contested in cross-examination. Indeed the only attempt
by defendant to call these estimates into question
was the evidence
of Dr. Badenhorst’s testimony whose own calculations were
extremely vague and often unsubstantiated, particularly
when
compared to the testimony of Dr. Roos who as the responsible
physician was far better placed to provide expert evidence as
to the
totality of plaintiff’s future medical treatment and hence costs.
Mr. De Villiers-Jansen who argued
this aspect of the case for defendant submitted that an appropriate
award in respect of damages
would be in the amount R200 000, 00 in
contrast to the R750 00, 00 claimed by plaintiff. Again the court
finds itself operating
within the vaguest of frameworks. In the
oft cited dictum in Sandler v Wholesale Coal Suppliers Ltd
1941 AD
194
at 199 Watermeyer JA said, ‘ [I]t must be recognised that
though the law attempts to repair the wrong done to a sufferer who
has
received personal injuries in an accident by compensating him in
money , yet there are no scales by which pain and suffering can
be
measured , and there is no relationship between pain and money which
makes it possible to express the one in terms of the other
with any
approach to certainty. The amount to be awarded can only be
determined by the broadest general considerations and a figure
arrived at must necessarily be uncertain, depending upon the judges
view as to what is fair in all circumstances of the case’.
In coming to a determination, a
court should exercise its discretion in a manner where it examines
comparable cases so as to arrive
at an award which is not
substantially out of general accord with previous awards in broadly
similar cases. See Protea Insurance
Company Ltd v Lamb 1971(1) SA
530(A) at 536A-B. However the discretion of the court should not be
fettered by an attempt to reconstruct
a tariff drawn from previous
awards. Corbett The Quantum of Damages Vol I at 5
By use of comparable examples from
Corbett and Buchanan The Quantum of Damages vol. II , Mr De
Villiers-Jansen sought to substantiate
the figure of R200 000, 00.
However, the cases which he cited do not take account of the pain
and suffering which must be occasioned
by languishing in a police
cell for an indefinite period (plaintiff had no idea as to when he
would be released) and are only partly
comparable. Accordingly an
award for general damages , in such a case can reasonably be
increased beyond the figure of R200
000, to R300 000, 00.
In summary, I find
that the total amount of damages suffered by plaintiff amounts to R4
957 777, 77; that is made up of R107,177,77
for past medical
expenses , R938 400, 00 for future medical expenses , R 2, 745200, 00
for past and future loss of income , and
R300000 for general damages.
That however
does not end the enquiry .The question arises as to the causal link
between such damages and the conduct of defendant.
Once more the
court is in an area of speculation in that no medical expert would
have been able to testify, with any measure of
exactitude, as to the
scale of an improved prognosis for a person such as plaintiff, had
the operation taken place timeously rather
than some hours after
languishing in a police cell.
In
my view, the evidence indicates that, had there been a better
prognosis, it would have only led to a limited improvement in
the
present capacity of plaintiff. .It is clear from the totality of
evidence presented to the court, that the essential injury
was
sustained to the frontal lobes and to a lesser extent, the temporal
lobes of the brain . Once these injuries had been sustained
, no
operation would have been able to repair such injury. The improved
prognosis depended on the extent to which an earlier operation
of
the kind performed by Dr Wessels would have improved plaintiff’s
present condition .
Had such an operation
been undertaken earlier such that plaintiff would have made an
improved recovery, it is likely that plaintiff
would have been able
to undertake some employment, albeit at a markedly reduced rate of
remuneration to that which he could have
commanded prior to the
injuries. On this basis, a tangible improvement in his condition
would have enabled him to perform
meaningful employment
Mrs van den Heever
testified that, after his initial recovery, plaintiff had returned to
the business of selling second hand cars,
albeit with disasterous
results. On the basis of this uncontested evidence, it appears that
plaintiff might have been able to be
employed, but not at the same
level of performance or complexity It is thus not unreasonable to
conclude, that had his condition
been improved as a result of an
earlier operation, he would have been able to seek out some form of
employment.
The
question can then be asked as to what that would entail in rands and
cents. On the basis of a reasonable estimate, it is possible
that
plaintiff may have been able to earn R8000 a month, that is
approximately 20% of previous capacity and hardly reflective
of an
overly complex form of employment. This estimate appears to provide
some rational basis for and calculation of the potential
earning
capacity of a person who, having suffered brain injury, was
operated upon in favourable conditions. It also affords some
measure
of a framework with which to estimate plaintiff’s claim for
damages.
On the basis of this estimate ,
20% of all the injury and damage sustained in terms of incidents
which took place on 26
th
and 27
th
December 1998
was caused by the negligent conduct of defendant. In the result , I
find that members of the South African police
force were negligent,
in omitting to ascertain the injuries sustained by plaintiff and in
failing to take reasonable steps to ensure
that plaintiff received
medical attention timeously.
Accordingly,
the award of damages must take account of the fact that the major
cause of the injuries cannot be attributed to
the conduct of
defendant. Absent the negligence of defendants’ employees,
plaintiff would still have incurred the past medical
expenses.
Hence these must be excluded from calculations of damages to be
awarded against defendant. The estimated future medical
expenses
stand more properly to be apportioned in that, the less the overall
injury the lower the medical costs to be incurred.
The same
approach holds true for the claim of loss of income. By contrast ,
the amount for pain and suffering should remain
in the amount of
R300000 in that such pain and suffering is awarded directly due to
the negligent conduct of the defendants employees.
On this basis of
calculation, plaintiff’s damages amount to R736, 720, 00 together
with R300 000 for general damages .
For these
reasons, defendant is ordered to pay plaintiff damages in the
amount of R1, 036, 720,00 together with costs.
_______________
DAVIS,
J