THE HIGH COURT OF SWAZILAND
Case No. 649/92
the matter between:
of the Kingdom of Swaziland (Herein represented by the Attorney
PLAINTIFF Mr. Shilubane
DEFENDANT Mr. Masuku
plaintiff sues as father and guardian of Thando Makhubu, a young
schoolboy who is now 15 years old.
17th June 1991, during a science demonstration in a classroom in a
government school, a teacher brought a naked flame too near to some
methylated spirits. The spirits exploded into flame and Thando
suffered extensive burns to his face, neck, chest and thighs. He was
admitted to hospital and had to undergo prolonged medical treatment,
including plastic surgery.
is not in dispute that the accident occurred as a result of
negligence for which the government is liable.
17th February 1994, by consent, judgment was entered in favour of the
plaintiff for special damages in the amounts of E15 341.52 and E18
947.80. It was agreed that the issue of general damages, for shock,
pain and suffering, loss of amenities of life, and disfigurement
should be postponed for the leading of evidence.
the subsequent hearing Dr. Sarugaser, a medical practitioner of some
20 years experience, gave evidence for the plaintiff. He had treated
Thando on the morning of the accident. The young boy was suffering
from second degree burns over 75 percent of his face. He continued to
treat him until 28th June 1991 when he was discharged, but further
treatment, afterwards, was also necessary.
October 1991 he was referred to a cosmetic surgeon for removal of
scars from his face and neck. He was also complaining intemittently
of difficulty of vision. For that reason he was referred as well to
an optometrist. Dr. Sarugaser testified in his evidence in chief,
without objection, that the optometrist's report had not disclosed
any conclusive view.
consent, seven photographs of Thando, taken at different times after
the accident during his treatment, were produced as Exhibit P2 A - G.
These were shown to Dr. Sarugaser. He confirmed that they reflected
accurately his visible injuries, though two of them also reflect the
nature of the work done during plastic surgery. That work, while it
was being carried out, itself had an additional disfiguring effect,
which has now gone.
Sarugaser said that the plastic surgery had done a great deal to
improve the impairment suffered by Thando but that his face had never
returned to its original appearance. He said that there was no
evidence of permanent eye damage.
consent the plastic surgeon's report was produced as Exhibit ?1.
sets out in detail the surgeon's observations and proposed treatment,
i.e. before that treatment took place.
himself also gave evidence. He was a quiet but personable boy, aged
15 at the time of this hearing. He testified that his injuries had
been painful and that he had to undergo two painful operations under
general anaesthetic. In that regard, I understood him to be saying
that the aftermaths of the operations caused him pain. He also
testified that his eyesight had been affected.
also gave evidence as to the effects of his injuries on his
schoolmates and, consequently, on his own mind.
he was saying in that regard was that the other children's reaction
to his appearance, and indeed that of his headmaster, caused him
embarrassment and a loss of confidence.
also said that the remaining scars were sometimes sensitive.
my own observation of him, the plastic surgery has been fairly
successful. As is often the way, he may himself be more sensitive
about his present appearance than he really needs to be. He is not in
my view badly disfigured.
he has undoubtedly been through a severe ordeal, and has certainly
suffered some permanent scarring.
his final submissions, Mr. Shilubane submitted that a reasonable sum
for shock, pain and suffering, disfigurement and loss of amenities of
life would be between E55 000 and E60 000. He referred to the South
African decision in Oosthuizen v. Homegas (Pty) Limited (Case 539/86
in the Orange Free State Provincial Division) in which R45 000 was
awarded under this head to a man who had suffered extensive burns to
the head, upper limbs, torso and upper back,
a large number of operations for plastic surgery and resulting in
gross permanent disfigurement of the hands, ears, one arm and the
upper torso. Mr. Shilubane acknowledged that the injuries in that
case were much more severe, but he also drew attention to the fact
that it was on the other hand a decision in 1989.
Counsel submitted that an award in the region of E35 000 would be
Thando's ordeal, and the fact that he is a young boy with his life
ahead of him, I am of the view that in this instance, the amount to
be awarded should be closer to that proposed by the Crown. His
injuries, though severe, are not in my view comparable to the
disfigurement suffered by the victim in the case cited. Although he
may feel otherwise, and I do take into account the effect on his self
confidence, I do not consider that Thando has suffered the same kind
of visible permanent disfigurement. The medical evidence does not
establish that he has suffered permanent damage to his eyesight or
any permanent disability (i.e apart from scarring.)
into account the passage of time, I assess general damages under the
heads sought at E38.000.
will hear the parties on any outstanding question of costs.
Nike Dame Sko Udsalg