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NOT REPORTABLE

IN THE SOUTH GAUTENG HIGH COURT

(JOHANNESBURG)

CASENO:5562/2008

DATE:22/03/2013

In the matter between

SIMON MICHAEL MKHUPE............................................................................PLAINTIFF

and

MINISTER OF SAFETY AND SECURITY......................................................DEFENDANT

Quantum of damages - loss of an eye resulting from a shooting incident - merits conceded - future medical expenses - loss of past income - loss of earning capacity -contingency allowances in both scenarios - general damages – R250 000 awarded.

J U D G M E N T

VAN OOSTEN J:

[1] In this action the plaintiff claims damages arising from a shooting incident on 9 April 2007 as a result of which he lost his right eye (the accident). Liability for payment of the plaintiff’s proven damages has been conceded. The matter proceeded before me for a determination of the plaintiff’s quantum of damages, more in particular the plaintiff’s future medical expenses, loss of income and general damages. No evidence was led and the parties agreed on the admission and contents of the reports of the plaintiff’s expert witnesses. No expert witnesses were either consulted or were to be called on behalf of the defendant.

[2] At the commencement of his argument counsel for the defendant objected to the admission of firstly, a report by Dr Cornelius, an ophthalmologist on behalf of the plaintiff, and secondly, two actuarial reports by plaintiff’s actuary containing calculations of the plaintiff’s future medical expenses and loss of income. When it became clear that the ophthalmologist report had been in possession of the defendant since 2010, counsel for the defendant wisely abandoned the objection against its admission. As for the actuarial reports nothing of substance was advanced in support of the objection. The actuary’s calculations were made on information and figures obtained from the reports of the plaintiff’s expert witnesses, which as I have mentioned, are admitted. In the absence of any possible prejudice to the defendant and further in view of the defendant not having filed an actuarial report, the objection was dismissed and the matter proceeded by way of argument on the admitted reports of Dr Cornelius, Dr Konig, also an ophthalmologist, Ms Motakwe, an occupational therapist, Mr Marais, an industrial psychologist and Ms Mkhondo, a psychologist. Against his background I now turn to deal with the plaintiff’s heads of damages under separate headings.

FUTURE LOSS OF EARNINGS

[3]The plaintiff’s expected future medical expenses are fully dealt with and set out in the experts’ reports and summarized in the actuarial report. The total amount arrived at is R81 386.00. The correctness of the amount has not been disputed. Counsel for the plaintiff contended for a contingency deduction of 15% which counsel for the defendant conceded was reasonable. I agree and having applied a contingency of 15% the amount of plaintiff’s future medical expenses is accordingly determined at R69 178.00.

LOSS OF INCOME AND EARNING CAPACITY

[4]The plaintiff was employed in the security industry. He has a standard 9 level of education and maintains that he has received training in security for which he was given certificates.None of these were made available either to the experts or the Court. He was employed at Chubb security for three years between 2001 and 2003. At the time of the shooting incident he was employed as an undercover security guard at Justicia Investigations, a private detective agency, earning, according to him, R2 700.00 per month. After the incident he returned to work but his contract of employment was terminated some 15 months later due to an inability to cope with the work situation. He was then employed at the Cosira Group as a drill operator, for a fixed period of 6 months. His work involved operating heavy machinery. His contract ended on 23 February 2011. Since then he has been unemployed.

[5] A disturbing feature emanating from the reports of the occupational therapist as well as the industrial psychologist is the absence of any documentary proof as to the income earned by the plaintiff. Counsel for the defendant with ample justification submitted that those documentsor other reliable information from the employers could and should have been obtained by the experts as this lies at the very heart of the determination of the loss of income. But it goes further: views are expressed by, for example, the industrial psychologist, that employers would be hesitant to employ the plaintiff with his “current visual presentation”, without any factual foundation in support thereof. This results in the blurring of an already almost impossible task the Court is faced with which is to gaze into the crystal ball in order to assess damages. The industrial psychologist, in the absence of any proof of income resorted to the guidelines provided by the Private Security Industry Regulatory Authority as the basis for computing the plaintiff’s income in the security industry. Unsatisfactory as this may be, I have decided to accept the assumption as the basis for the calculations that have been made as the experts’ reports are before me by agreement and the contents thereof accordingly not disputed.

[6] This brings me to the actual figures arrived at concerning loss of income and more in particular the contingency allowances that should be made. First, I deal with the plaintiff’s loss of past income. That amount is given as R20 982.00 which is derived from the experts’ reports and accordingly stands uncontroverted. A contingency deduction ought to be made. Counsel for the plaintiff contended for an allowance of 5%. I agree that such deduction is reasonable. The amount of the plaintiff’s loss of past income, accordingly, is R19 933.00.

[7] Next, I turn to the plaintiff’s loss of future income. Again the amounts used by the actuary as the basis for the calculations, must be accepted. Counsel confined their arguments to the contingency allowances only. In regard to the income but for the accident, the amount of R793 660.00 is given. Generally a contingency deduction in this regard of 15% is allowed, which is what counsel for the plaintiff contended for. I agree. The net amount accordingly arrived at is R674 611.00.

[8] Finally, under this heading, the plaintiff’s income having regard to the accident. The amount thereof is stated as R628 742.00. Counsel for the plaintiff contended for a contingency deduction of 65%. I am unable to agree. I have already referred to the unsatisfactory way in which plaintiff’s prospects of future employment have been dealt with by the experts. I accept that diminished prospects of future employment do exist. On the other hand the plaintiff is presently only 31 years old, he is physically strong and has full eyesight of the left eye. It is generally well-known that in our present labour market job seekers with physical disabilities are more favourably considered than before. Having considered all the relevant circumstances I am of the view that a contingency allowance of 25% properly caters for all eventualities. The “but for” scenario income accordingly comes to R471 556.00. The plaintiff’s loss under this heading accordingly is R203 055.00.

GENERAL DAMAGES

[9] The devastating effects of the loss of an eye cannot be under-estimated. In the psychological report those are fully dealt with. The plaintiff is currently wearing an artificial external prosthesis. The difficulties in self-acceptance, emotional distress, anger and sense of failure are all sequelae the plaintiff is suffering resulting from the loss of his eye. Counsel for the plaintiff referred me to an award of R55 000.00 (present value R235 000) that was made in respect of general damages for loss of an eye in Mthembu v Minister of Law and Order (1991) D&CLDCorbett and Buchanan Vol 1
I3-1and contended for that amount to be awarded in this case. Each case must be decided on its own merits. The plaintiff is younger than Mthembu who was 42 years old and he therefore has to live with the disability much longer always conscious of the increased vulnerability resulting from having only one eye. An award of R250 000.000 as general damages in my view would be fair and just in the circumstances of this case.

[10] Counsel for the plaintiff has prepared and handed in a draft order in which I merely need to insert the total amount of the damages awarded. That amount comes to
R542 166.00 (R69 178 plus R19 933 plus R203 055 plus R250 000) which is the amount I have inserted in paragraph 1 of the draft order, marked“X”.

[11] In the result judgment is granted in terms of the draft order, marked “X”.

_________________________

FHD VAN OOSTEN

JUDGE OF THE HIGH COURT

COUNSEL FOR THE PLAINTIFF : ADV M OLIVIER

PLAINTIFF’S ATTORNEYS E TALANE INC

COUNSEL FOR THE DEFENDANT: ADV T NTUNJA

DEFENDANT’S ATTORNEYS : THE STATE ATTORNEY

DATE OF HEARING: 20 MARCH 2013

DATE OF JUDGMENT: 22 MARCH 2013

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