Member of the Executive Council for Education, Eastern Cape Province v M obo P (CA278/16) [2017] ZAECGHC 102 (14 September 2017)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

Case No: CA278/16

In the matter between:

THE MEMBER OF THE EXECUTIVE COUNCIL

FOR EDUCATION, EASTERN CAPE PROVINCE

APPELLANT

and

A. N. M. obo

K. T. P.

RESPONDENT

JUDGMENT

CONJWA, AJ

[1] This is an appeal against the order of the Magistrate Grahamstown awarding general damages in the amount of R130, 000.00 and future medical costs in the sum of R7967.80. The award was made for injuries sustained by the respondent and their sequelae as a consequence of an unlawful assault on him by an employee of the appellant whilst acting within the course and scope of his employment with the appellant. The merits of the claim were conceded in favour of the respondent.[1]

[2] The background to the claim is as follows: The respondent brought this action on behalf of her minor son K. P., who was unlawfully

assaulted by his teacher, an employee of the appellant.

[3] Mr K. P. a grade 9 scholar was in class at M. W. Senior Secondary High School on the 3rd day of March 2014 together with other learners chatting, making noise. Mr K., an educator employed as such by the appellant, came and told the learners to keep quiet. After the departure of Mr K. from the classroom, K. decided to leave the place where he had been seated. He went to sit in another spot where he normally sits within the classroom.

[4] Unbeknown to him Mr K. had returned to the classroom and he kicked him on his back causing him to slouch. Mr K. said that what had just happened to him should serve as a lesson for all. K. remained in that position for the remainder of the day because of the pain he was experiencing on his back. So intense was the pain that he had to be assisted by a friend to carry his bag home. He was unable to move his left arm and his back was in pain thus forcing him to stay away from school for three days. K. felt humiliated about being assaulted in full view of his peers.

[5] When K. got home his mother A. M. could see that all was not well with her son. She questioned him trying to find out what was wrong. Although he was reluctant at first, he eventually disclosed what had befallen him. This prompted Ms M. to go to the school on the following morning to find out what had happened. She could not talk to Mr K. as he was alleged to be busy in class. She decided to leave and she left behind her phone number so that the teacher could call her. When the teacher did not call she decided to institute civil and criminal proceedings against him as she felt that no one was showing concern about what had happened to her son.

[6] While the incident was still unresolved Mrs M., an educator in the same school passed some remarks about scholars laying charges against the educators. This did not sit well with K. as he felt that the remark was made in reference to what had happened to him. When confronted about the remarks, the teacher allegedly denied it. This brought added pressure on K. as he felt that people perceived him as a liar, his peers were talking about and teasing him because of the event, they viewed him as a weakling who is unable to fight his own battles. They expected him to have fought back during the assault by Mr K.. This appears to have occasioned K. a great deal of anguish as he attempted to commit suicide. K. is alleged to have attempted to commit suicide for the second time. The second attempt is shrouded in mystery as it was allegedly never mentioned to both expert witnesses. Things appear to have taken a turn for the better after the apology that was given by Mr K. and the subsequent withdrawal of the criminal charges.

[7] K. was alleged to have mixed with a wrong crowd, smoked dagga and was truant from school. When his mother got to know of this, she threatened to have him admitted in a programme for substance abuse. K. testified that this did not bother him as he was no longer involved with those things.[2] There’s a contradiction between Ms M. and K. about the time in which that occurred. Ms M. alleged that the incident occurred in 2015 whereas K. had testified that it was in 2013 when it occurred.

[8] In a S54[3] minute the appellant admitted the physical injuries sustained by the respondent as set out in Dr Jameson’s reports dated 6 and 7 March 2014 respectively, with the exception of the last three paragraphs dealing with past history. The injuries were set out as follows:

“Bruising on posterior aspect of chest wall over right scapular area. Swelling of tissue about 6x7.5 cms. Area raised “pigmented”

bruising patchy over this area well demarcated. In addition to the physical injury he is also suffering from early features of post traumatic stress disorder”

Although K. and his mother had initially been under an impression that K. was suffering from a bleeding disorder-Von Willebrands’s disease- it became common cause after further tests by Dr Webb[4],that this was not so.

[9] The sequelae to the assault is in dispute. Professor Young (for the respondent) and Ms A. (for appellant) agreed in a joint minute that:

“K. experienced significant distress from the time of the incident until early this year when the criminal case was concluded, a period of approximately 10 months. This resolution was to a large extent due to his ability to express his forgiveness in person to Mr J..(sic)”.

[10] For the period outlined above, Professor Young believes that this distress met and continues to meet the criteria for adjustment

disorder with depressed mood. He describes adjustment disorder as a lesser psychiatric disorder with emotional and behavioural symptoms that exceed what you would expect from an event. These symptoms can either be clinically significant or resultant functional impairments i.e affect occupational functioning. One needs to present with one of these two symptoms for a diagnosis of adjustment disorder to be made and in K.’s case he presented with both. There was quite a significant suicidal ideation and suicidal intent some months after the event. K. continued to report a low mood and Professor Young opined that this can all be directly attributed to the assault and the sequelae. Professor Young believes that K. remains at risk for further problems.

[11] Ms Karen A. disagrees. She holds the view that K. is not suffering from any mental disorder including Adjustment Disorder with Depressed mood. She is of the view that he experienced a degree of psychosocial stress from being kicked. It was a result of prior emotional problems, histrionic personality traits and the politics surrounding the incident that K. responded with the single episode of alleged suicidal acting out behaviour. Ms A. believes that K. P. is possibly still at risk for further problems but for other reasons, not as a result of the incident at school and that will not benefit from psychotherapy and to force him to do so would be wrong.

[12] The court a quo after a consideration of the evidence found that the assault that was perpetrated upon the plaintiff impacted upon him and caused him a great deal of stress and psychological distress and made the award as set out above.

[13] On the facts of this case the question to be answered is whether a causal link has been established between the assault and the psychological and emotional trauma that the plaintiff suffered. The plaintiff contends that the defendant is liable in delict for her son’s condition and all the costs associated therewith. The defendant on the other hand contends plaintiff’s condition is not legally connected to the assault.

[14] As his first salvo counsel for the respondent argued that no defence relating to causation was pleaded nor was there any defence relating to pre-existing condition or supervening injuries raised. Mr Voultsos though admitting to the failure to plead that defence contends that such failure is no bar.

[15] Of course it is trite that litigants are obliged to allege in their pleadings all the material facts on which they rely for their cause of action. Ordinarily it is impermissible for a party to plead a particular cause and at trial seek to establish a different case. Nor is it permissible for a trial court to base its decision on something outside the parameters of the pleadings. But that practice, hallowed though as it is, is not cast in stone. Where, as here, the issue has been fully canvassed in evidence and will not occasion prejudice to the opponent, a party may be allowed to rely on an issue not covered in the pleadings[5] . In South British Insurance Co Ltd v Unicorn Shipping Lines[6] the court held:

‘However, the absence of such an averment in the pleadings would not necessarily be fatal if the point was fully canvased in evidence.

This means fully canvased by both sides in the sense that the court was expected to pronounce upon it as an issue.’

It is indeed so that this defence was never pertinently pleaded, it is however this defence that had consumed the attention of the court a quo and its findings were centred around this defence.

[16] As is evident from the views expressed by the experts as set out above, they hold divergent views as to the sequelae. In S v Harris[7] it was held:

“In the ultimate analysis, the crucial issue of appellant’s criminal responsibility for his actions at the relevant time is a matter to be determined, not by the psychiatrists, but by the Court itself. In determining that issue the Court-initially the trial Court; and, on appeal, this Court- must of necessity have regard not only to the expert medical evidence but also to all the other facts of the case, including the reliability of appellant as a witness and the nature of his proved actions throughout the relevant period.”

Similarly in S v Gouws[8] it was stated:

“The primary function of an expert seems to me to be to guide the court to a correct decision on questions found within his specialised field. His own decision should not, however, displace that of the tribunal which has to determine the issue to be tried.”

The tendency to lead expert witnesses to attempt to influence a court with their opinions of the very issue which is to be determined,

makes it difficult for courts to distinguish acts from inferences and opinions.[9] An expert comes to court to give the court the benefits of his expertise.

The approach to conflicting expert evidence, in so far as there is conflict, has been set out in Michael and Another v Linksfield Park Clinic (Pty) Ltd and Another[10] as follows:

“That being so, what is required in the evaluation of such evidence is to determine whether and to what extent their opinions advanced are founded on logical reasoning”.

It is the function of the court to base its inferences and conclusions on all the facts placed before it. In its consideration of the matter a court is also to keep in mind that direct evidence of facts are of great value when determining an issue.

[17] This is a matter therefore that has to be decided on the evidence and the probabilities. When considering the issues one has to take into account not only evidence, but also facts which are common cause between the parties.

[18] In a S54 minute the injuries as set out by Dr Jameson were admitted. Of significance, Dr Jameson in the report opined that K. showed early signs of Post traumatic stress. It is evident therefore that soon after the incident K. exhibited signs of being under a lot of stress as a result of the assault. This state continued for a considerable length of time.

[19] Although both expert witnesses found that K. does not suffer from Post -traumatic stress disorder, they are in agreement that K. experienced significant distress from the time of the incident and this continued for a period of approximately 10 months. Ms A. does not agree that K. suffers from Adjustment Disorder with Depressed mood. I believe there is merit in the argument that, was made that due to the higher than is required test that was applied by Ms A., she came to an incorrect conclusion that K. did not meet the requirements for Adjustment Disorder with Depressed mood. Although Ms A. tried to downplay the significance of the errors that were highlighted in her report by Prof Young it is quite evident that they had a role in her subsequent findings.

[20] Ms A. does confirm that K. presented with depressed mood but according to her this had nothing to do with the assault but was due to his abuse of Cannabis. Even though she agrees that he experienced a degree of psychosocial stress from being kicked, she stated that it was as a result of prior existing factors that he responded with a single episode of suicide acting out. This opinion can thus only mean that K.’s psychological sequelae were in existence throughout. It was on this basis that it was argued that no causal link had been established between the assault and the symptoms that K. presented subsequent to the assault.

[21] In Charmaine Naidoo v Minister of Police and others[11] Petse JA set the test for causation as follows:

“In Minister of Safety and Security & another v Carmichele 2004 (3) SA 305 (SCA) this court reaffirmed a well- established principle that causation has two elements. In International Shipping Co (Pty) Ltd 1990 (1) SA 680 (AD) at 700E-I Corbett j explained these elements as follows: 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. This enquiry may involve the mental elimination of the wrongful conduct

and the substitution of a hypothetical course of lawful conduct and the posing of the question as to whether upon such an hypothesis

plaintiff’s would have ensued or not. If it would in any event have ensued, then the wrongful conduct was not a cause of the plaintiff’s loss; aliter, if it would not so have ensued. If the wrongful act is shown in this way not to be a causa sine qua non of the loss suffered, then no liability can arise. On the other hand, demonstration that the wrongful act was a sine qua non of the loss does not necessarily result in legal liability. The second enquiry then arises,viz whether the wrongful act is linked sufficiently closely or directly to the oss for legal liability to ensue or whether, as it is said, the loss is too remote. This is basically a juridical problem in the solution of which considerations of policy may play a part. This is sometimes called “legal causation”.

[22] In Gibson v Berkowitz and Another[12] the court had this to say on the test:

“The test for factual causation is usually not too difficult to apply to any given circumstances. The sine qua non test normally results in an easy answer as to whether or not the harm would have resulted 'but for' the negligent conduct. What often poses a greater test for jurists, is the second leg of the enquiry, ie legal causation. Various theories have been advanced in the past such as 'proximate cause', 'direct cause', 'foreseeability', 'absence of a novus actus interveniens' and 'sufficient causation'. In South Africa the matter has become settled in that the Appellate Division has now laid down a 'flexible norm' ('soepele maatstaf') whereby considerations of policy, reasonableness, equity and justice are applied to the facts of the case.”

[23] It was stressed in argument before us by Dugmore SC that K.’s case was that of a “thin skull”.

[24] In general, the thin-skull rule dictates that a defendant cannot use the extra- ordinary vulnerability of the plaintiff as a defence, the rule being based on the principle that you take your victim as you find him.

[25] Where the thin-skull rule comes into question, the court has to determine whether it is reasonable and fair to state that the damage suffered by the plaintiff and particularly the extent thereof was caused by the defendant.

[26] The court in Gibson v Berkowitz[13] where the plaintiff had sustained injuries which left her in a state of helplessness, Claasen J held that her emotional over-reaction to the stimuli emanating from these additional stressors could not be regarded as a supervening cause and the defendants must be held liable. He went further and held that it must be remembered that her sequelae stemmed from actual physical injury to herself. It was not a case of merely witnessing a traumatic event which induced shock causing

subsequent psychological sequelae. In cases where psychological sequelae follow after actual physical injury, there is less likelihood of 'limitless' liability and therefore greater scope for a flexible

approach to include liability for psychological sequelae which are further removed from the original negligent conduct. Because the plaintiff suffered physical injury, she is to be regarded

as a 'primary victim'. In Page v Smith [1995] UKHL 7; [1995] 2 All ER 736 (HL) Lord Keith at 767 held that the thin skull rule applies where the plaintiff is a primary victim (as was Mrs Gibson in that matter). He held that hindsight has no part to play where the plaintiff is a primary victim and proof of proximity will therefore present no problem, ie remoteness of damages will not be a problem where psychological sequelae occur consequent upon a physical injury.

[27] In the circumstances of the present matter and by parity of reasoning, the assault was the critical event that led to the downward spiral. It might well be that K. had personality traits that made him vulnerable but it was the physical assault that was perpetrated upon him by the teacher that sent his psychological being on a downward spiral and the appellant cannot be allowed to use his vulnerability as a defence. A defence that the damages were remote can thus not arise nor can it be unreasonable in the circumstances of this matter to hold the appellant liable for the damages that were subsequently incurred by the respondent.

[28] It was common cause between the parties that when K. was seen Dr Jameson on 6th March 2014 few days after the incident, he already presented with and showed signs of being under significant stress. Both parties agree that he continues to be under risk for further problems, the court a quo was thus correct in having made an award for future medical expenses.

[29] It is trite that a court, when determining the quantum for general damages, is exercising a broad discretion when considering what fair and adequate compensation is. The court considers the facts and circumstances and the injuries suffered by the plaintiff, including their nature, permanence, severity and impact on plaintiff’s life.[14] Nugent JA pertinently referred in paragraph 10 to the degree of humiliation to which the plaintiff is subjected to as a factor to be taken into account when assessing quantum.[15]

[30] In Minister of Safety and Security v Tyulu[16] Bosielo AJA (as he then was) emphasized that the primary purpose is not to enrich the claimant but to offer him some much needed solatium for his injured feelings. In De Jongh v Du Pisanie N.O[17] the court after noting that the tendency towards increased awards in respect of general damages in recent times was readily perceptible,

the court reaffirmed conservatism as one of the multiple factors to be taken into account in awarding general damages. The court

concluded that the principle remained that, the award should be fair to both sides, it must give just compensation to the plaintiff, but “not pour out largesse from the horn of plenty at the defendant’s expense”, as pointed out in Pitt v Economic Insurance Company Limited[18]

[31] An appellate court will interfere with an award for general damages in instances of a striking disparity between what the trial court awarded and what the appellate court considers ought to have been awarded. As pointed out by the Supreme Court of Appeal, misdirection might sometimes appear from a court’s reasoning and in other instances it might be inferred from a grossly excessive award.[19]

[32] The trial Court or the Court of Appeal, as the case may be may pay regard to comparable cases. It should be emphasised, however, that this process of comparison does not take the form of a meticulous examination of awards made in other cases in order to fix the amount of compensation; nor should the process be allowed so to dominate the enquiry as to become a fetter upon the Court’s general discretion in such matters. Comparable cases, when available, should rather be used to afford some guidance, in general accord with previous awards in broadly similar cases, regard being had to all the factors which are considered to be relevant in the assessment of general damages. At the same time it may be permissible, in an appropriate case; to test any assessment arrived at upon this basis by reference to the general pattern of previous awards in cases where the injuries and their sequelae may have been either more serious or less than those in the case under consideration.[20]

[33] I have, despite a diligent search, been unable to find a case that is on all fours with the present matter.

[34] In Philander v Minister of Safety and Security [2013] ZANWHC57 (6 June 2013)

The plaintiff had been unlawfully assaulted and raped by members of the South African Police and as a result of the assault she sustained bruises on right arm, upper lip and on the head, swollen left arm and both breasts, bruises on vagina suffered contumelia and psychological harm. In respect of the first claim relating to damages for the physical assault the plaintiff was awarded R60 000.00. In relation to the second claim for general damages for physical, mental and psychological pain suffers and contumelia the plaintiff was awarded R180 000.00.

[35] In Alphes Bapela and Another v Minister of Police [2013] ZAGPJHC256, the first plaintiff had been unlawfully shot and arrested by the police. He instituted an action for general damages for pain and suffering, shock, loss of amenities and disablement as a result of psychological injury which manifested with severe recurrent major depression, generalised anxiety and post-traumatic stress. He was awarded R150 000.00 for general damages.

[36] Duarte v Minister of Police [2013] ZAGPHC 51 (7 March 2013) a claim for damages in respect of wrongful arrest, detention and also assault, the plaintiff was awarded R75 000.00 for general damages for wrongful detention including psychological trauma and contumelia and R60 000.00 general damages for assault and ordinary psychological trauma and contumelia.

[37] In Minister of Police v Dlwathi [2016] ZASCA 6 an advocate in private practice was unlawfully assaulted by the police in the presence of friends. He suffered serious and permanent injuries. As regards the psychiatric effect of the assault the respective experts on behalf of the parties agreed that the plaintiff:

(a) experienced a significance deterioration in his functioning;

(b) has no self-confidence and feels self-conscious about his appearance and has difficult with his teeth;

(c) has memory and concentration difficulties;

(d) has withdrawn from his hobbies social and leisure time activities

(e) is more irritable and has developed depression and anxiety suffers from post-traumatic stress

The high court had awarded a globular amount of R675 000.00 general damages for the physical and psychological injuries. The SCA found the amount of R675 000.00 to be excessive and substituted R200 000 for it.

[38] Naidoo v Minister of Police [2015] ZASCA 162 the appellant had been unlawfully assaulted and arrested by the police. She suffered soft tissue injuries on the arm and leg with swelling and she was diagnosed as suffering from Chronic Post Traumatic Stress Disorder. She was awarded R10 000 damages for the assault.

[39] An assessment of appropriate general damages with reference to awards made in previous cases is, as Nugent JA observed in Minister of Safety and Security v Seymour (295/05) [2006] ZASCA 71; 2006 (6) SA 320 (SCA) para 17, “fraught with difficulty…(t)he facts of a particular case need to be looked at as a whole and few cases are directly comparable..(t)hey are a useful guide to what other courts have considered to be appropriate but they have no higher value than that.[21]

[40] Dugmore SC submitted that in assessing the appropriate amount of general damages the court ought to have had regard to or not lose sight of the provisions of Constitution of Republic of South Africa, 1996 more particularly with regard to right to safety and dignity. When those constitutional values are taken into account, such approach would justify the award made by court a quo. Furthermore, K.’s back is still painful two years down the line. Indeed I have considered all the factors and circumstances relevant to the assessment of damages inclusive of the physical and emotional sequelae upon K. and when I take into account past awards, I consider an amount of R40 000,00 an appropriate award of damages.

[41] Since this amount differs radically from the amount awarded by the Court below this Court is entitled to interfere and upset the determination.

[42] On the question of costs the appellant has been successful in obtaining a substantial reduction in the amount awarded for general

damages. In Erf One Six Seven Orchards CC v Greater Johannesburg Metro[22] the appellant was unsuccessful on a number of issues but succeeded only on one, it was held on appeal that the court a quo had correctly taken that into account when it made an order of costs against the appellant. In the circumstances of the present matter in view of appellant’s limited success, I deem it appropriate that the appellant should pay respondent’s costs.

[43] In the light of the afore-going the following shall issue:

1. The appeal is upheld in part.

2. Paragraph 1 of the order of the court below is set aside and substituted with the following:

“The Defendant is to pay the Plaintiff the sum of R 40 000.00 for general damages”.

3. The appellant is hereby ordered to pay respondent’s costs of appeal.

______________________

N CONJWA

ACTING JUDGE OF THE HIGH COURT

I agree

_____________________

B MAJIKI

JUDGE OF THE HIGH COURT

Counsel for Appellant : Adv L Voultsos

Instructed by : Neville Borman and Botha Attorneys

22 Hill Street

GRAHAMSTOWN

Counsel for Respondent : Adv A G Dugmore SC

Instructed by : N N Dullabh & CO

5 Bertram Street

Dates heard : 19 May 2017

Date delivered : 14 September 2017

[1] See Court Order dated 24-04-15 p 69 of the record

[2] P183 of the record at paras 19-24

[3] Magistrate’s Court Act 32 of 1944

[4] Section 54 Minute dated 14-10-2015 p 70-74 of the record

[5] Charmaine Naidoo v Minister of Police [2015] ZASCA 152

[6] 1976 (1) SA 708(A); See also Minister of Safety and Security v Slabbert [2010 2 All SA 474(SCA)

[7] 1965 (2) SA 340 (A) at page 365B-C

[8] 1967(4) SA 527 (EC)

[9] Nicholson v Road Accident Fund [2012] ZAGPJHC 137

[10] 2001(3) SA 1188 (SCA)

[11] [2015] ZASCA 152

[12] 1996 (4) SA (WLD) at 1040

[13] supra

[14] Philander v Minister of Safety and Security[2013] ZANWHC 51; See Paterson v Minister of Safety and Security 2011(6k6) QOD 1(ECG); Road Accident Fund v Marunga 2003(5) SA 164 (SCA)

[15] Minister of Safety and Security v Seymour 2007 All SA 558 (SCA)

[16] 2009 (5) SA 85 (SCA) at para 26

[17] 2005(5) SA 457 (SCA)

[18] 1975 (3) SA 284 (N) at 287

[19] Minister of Safety and Security v Kruger 2011 (1) SACR 529 (SCA) para 27

[20] Protea Assurance Co Ltd v Lamb 1971 (1) SA 530 (A) 534 H-535 A

[21] See Dlwathi supra

[22] [1998] ZASCA 91; 1999 (1) SA 104 (SCA)