Chiliza and Another v Subramoney and Another
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | M E Nkosi J |
| Judgment Date | 16 September 2022 |
| Court | KwaZulu-Natal Local Division, Durban |
| Docket Number | 13735/2014 |
| Citation | 2022 JDR 2684 (KZD) |
M E Nkosi J:
Introduction
The first plaintiff is Senzo Chiliza, a major male born on 1 June 1998. The second plaintiff is Basanthie Naidoo, a major female who, together with her husband, were appointed the foster parents of the first plaintiff prior to his attainment of majority by an order of the Chatsworth Magistrates Court and have, since then, acted as the de facto parents of the first plaintiff.
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The plaintiffs sued the defendants for damages arising from an injury that was sustained by the first plaintiff on 1 March 2013 when a guillotine he and other learners were attempting to move in the plumbing workshop at his erstwhile school, namely, Damorosa Pre-Vocational Secondary School ("the school") in Chatsworth, was accidentally dropped on his right foot. The learners were allegedly instructed to move the guillotine concerned by the first defendant, in his capacity as an educator at the school and, as such, an employee of the second defendant.
The injuries sustained by the first plaintiff from the accident were described by Dr Robert Fraser ("Dr Fraser") in his medico-legal report dated 6 March 2017 as fractures of the proximal phalanges of the first, second and third toes of the first metatarsal. This resulted in the amputation of the affected toes of the first plaintiff s right foot due to the development of gangrene.
The damages claimed by the plaintiffs against the defendants, jointly and severely, the one paying the other to be absolved, were the sums of R168 025.34 for past medical expenses incurred by the second plaintiff in relation to the first plaintiff s injuries, R623 712 for future medical expenses of the first plaintiff, R3 303 570 for his loss of earnings and R500 000 for his general damages. The defendants denied any liability for the damages claimed by the plaintiffs.
The trial for the determination of liability was held in 2016, when judgment was granted in favour of the plaintiffs in terms of which the second defendant was found to be liable for any and all such damages as the plaintiffs
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may be able to prove. Pursuant to that judgment, the plaintiffs engaged the services of various experts to prove their damages against the second defendant. The reports of the experts concerned were served upon the State Attorney, who was acting for the defendants in respect of this matter. No experts were engaged by the defendants to give evidence on their behalf in relation to the plaintiffs' claims.
After the close of pleadings the matter was certified ready for trial and set down for hearing on 5, 6 and 7 September 2022. There was no appearance on behalf of the defendants at the trial. Prior to the commencement of the trial the court enquired from Mr Reddy, who appeared for the plaintiffs, as to whether the defendants and/or their legal representatives were aware of the dates allocated for the hearing of the matter. In response, Mr Reddy assured the court that the relevant official at the State Attorney's office was fully aware of the trial dates. He added that his instructing attorney had a telephone conversation with the official concerned about the trial only a few days before the commencement thereof, and he promised to revert to her but never did. In the circumstances, the hearing of the matter proceeded without any appearance on behalf of the defendants.
Evidence:
The first witness who testified for the plaintiffs was the first plaintiff himself, Senzo Chiliza. His evidence, briefly stated, was that he was 24 years-old, and had always regarded the second plaintiff and her husband as his parents, having stayed with them since he was only one year old. They were subsequently appointed his foster parents when he was ten years old, after the death of his biological mother who was employed as their domestic worker.
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Prior to his enrolment at the school, which was a pre-vocational school, he was a pupil at the Glenview Primary School in Silverglen, Chatsworth, which was a normal school. The highest level of education he attained at the school was grade nine, which was an equivalent of grade seven at a normal school. On 1 March 2013, he and the other learners were instructed by the first defendant to move a guillotine in the plumbing workshop at the school. As they did so, the guillotine was accidentally dropped on his right foot causing him serious injury, which resulted in his three toes being amputated after they developed gangrene.
Following the amputation of his toes, he was unable to continue with his education at the school due to the difficulty in climbing the stairs to attend his lessons. Over the years, he has been in constant pain not only from his injured right foot, but also from the other affected parts of his body, such as his lower and upper leg, as well as his right hip. The other problems he experienced included, inter alia, a massive weight gain due to his inability to engage in physical exercise, lack of self-esteem, as well as depression to the extent that he even contemplated committing suicide at some stage.
The second plaintiff and her family have, over the years, done everything in their power to help him regain control of his life. Their efforts include, inter alia, equipping him with different skills and exposing him to different career opportunities for which he might be suited taking into account the limitations in his physical and mental capabilities. He felt that he had not yet reached his full potential regarding his achievements and believed that he
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was capable of achieving much more in his education and training if he applied a bit more effort.
The second plaintiff, Basanthie Naidoo, also testified on her own behalf. Her evidence was that she was 68-years-old and a retiree. Prior to her retirement in 2019 she had been employed as a national warehouse manager for 17 years. Apart from the first plaintiff she and her husband have three other children, two girls and one boy. All three of them have lucrative careers and are gainfully employed. She confirmed that the first plaintiff s mother worked for her family for a period of five years as a domestic worker. In 2008, prior to her passing away, the first plaintiff s biological mother asked her to take care of the first plaintiff, to which she agreed.
After the death of the first plaintiff s mother she and her husband made a formal...
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