IN
THE HIGH COURT OF SWAZILAND
CIV.
CASE NO.1064/91
In
the matter between:
REUBEN
MLOTSHWA
VS
THE
ATTORNEY GENERAL
CORAM
Hull, CJ.
FOR
THE PLAINTIFF Mr. Mamba
Judgment
(21/6/93)
On
28th October 1991, the plaintiff commenced an action in the High
Court as father and natural guardian of Sonnyboy Mlotshwa claiming
general damages for confinement, pain and suffering, permanent
disfigurement and loss of amenities in the sum of E35 000 and
estimated future medical expenses of E5000.
The
claim arose from an incident on 1st January 1991 during which the son
was shot in the leg by unknown members of the Royal Swaziland Police.
The
particulars of claim averred that due notice had been given under the
Limitation of Legal Proceedings against the Government Act 1972 and
that the prescribed period had elapsed.
On
12th October 1992, the plaintiff filed a notice of intention to amend
the claim to allege, inter alia, that as a result of the injuries,
the son's right femur had been
2
shortened,
and that the right leg was two centimetres shorter then the left leg,
causing him to walk with a limp, and to suffer permanent pain in the
right leg.
He
also gave notice to amend the amount of the claim to the following:
Estimated
future medical expenses : E18 000
Medical
costs, hospital expenses and damages for confinement : E15 000
Permanent
pain and suffering : E20.000
Permanent
disfigurement and permanent loss of amenities : E30 000.
On
4th November 1992, the plaintiff filed amended particulars of claim.
The
Government has taken no steps in the proceedings.
On
13th January 1993, the plaintiff filed a notice of set down for
judgment in default.
At
the hearing, Dr. Mauro Neri, the Head of the Surgical Department at
the Mbabane Hospital, was called to give evidence on behalf of the
plaintiff. He testified that he had examined the son on 8th June
1992. His report, dated 25th June 1992, was produced as Exhibit "A".
He confirmed that the injury had resulted in a shortening of the
right leg of some two centimetres, and said that in his opinion the
injury had resulted in a loss of use of the limb amounting to almost
60 per cent. He concluded that the son would suffer chronic pain in
the future, which would get worse with the passing of time. He also
said , in his report, that the disfigurement was very noticeable and
that the handicap would make it difficult for him to engage in
sports. Unless corrected, it was his opinion that the consequences of
the injury would be permanent.
3
In
testimony, he said that the possibility of lengthening the leg, i.e.
to correct the impairment, was not certain, and would probably cost
in the order of E18 000.
The
son also have vive voce evidence. He confirmed the facts alleged in
the amended particulars of the claim, and said that he had been a
first division soccer player. He gave his age, at the time of
hearing, as 21 years.
As
to the question of damages, the evidence before me is to the effect
that medical expenses to date have cost E15 000 and that future
treatment is likely to cost E18 000.
I
propose to consider general damages for pain and suffering,
disfigurement and loss of amenities globally. The estimated future
medical expenses, as I understand Dr. Neri's evidence, relate to the
cost of further treatment to correct the disability. In principle,
therefore, I have regard to the need to avoid overlapping of elements
of damages: see Amos Sibusiso Ndlovu v. Swaziland Royal Insurance
Corporation Civil Case No. 136/87 per Chief Justice Hannah at pages
19 and 20.. The prognosis for successful future corrective surgery is
however uncertain. The plaintiff's son is in my view entitled to have
the opportunity to obtain further treatment; on the other hand,
because of the uncertainty in it, I do not think that it is
appropriate to take that into account to any extent in assessing
general damages.
Counsel
referred to Ndlovu (Supra) and also to Yeko v. S.A. Eagle Insurance
Company Limited, a decision of the Ciskei Supreme Court, set out at
page E3 - 1 of Volume IV of The Quantum of Damages in Bodily Injury
and Fatal Injury by Corbett and Honey.
Ndlovu
involved very severe injuries sustained in 1985 by a man who, at the
date of judgment in 1989, was twenty-six. As a result of that
accident, he lost both legs.
4
The
learned Chief Justice awarded E80 000 for pain suffered and loss of
amenity.,
Yeko
was a case involving injuries that were comparable, fairly closely,
to the present case. The plaintiff was 34 at the time of the accident
and 37 at trial in 1986,, He received E12 000 general damages.
The
plaintiff's son here is a good deal vounger. Taking into account that
fact and the passage of time, it appears to me that a suitable
allowance for general damages, globally, would be E38 000.
I
give judgment accordingly for the plaintiff in the following amounts,
(together with costs):
For
medical costs, hospital expenses and confinement E15 000
For
estimated future medical costs E18 000
For
general damages (all heads) E38 000
E
71 000
DAVID
HULL
CHIEF
JUSTICE
