Nino Wolfkop and Others v Minister of Police

The plaintiffs claimed damages arising from the unlawful shooting and killing of Caroline Arends by her ex-husband Gert Arends, a police officer, using a service firearm on 30 September to 1 October 2013. Gert also held the second plaintiff hostage and subsequently committed suicide. Gert had been declared unfit to possess a firearm by the South African Police Service. The first and second plaintiffs were married at the time (later divorced), and the third to fifth plaintiffs were Caroline's minor children. The merits were conceded by the Minister of Police, and the matter proceeded on quantum only. The first and second plaintiffs did not testify in support of their claims, relying solely on expert evidence. The third to fifth plaintiffs testified about their mother's support and the psychological impact of her death.

• Whether expert evidence without a factual basis from plaintiffs themselves is admissible and carries probative value in a damages claim
• Whether plaintiffs who failed to testify can succeed in their claims for psychological damages based solely on expert opinions
• Whether the plaintiffs (third to fifth) established loss of maintenance and support on a balance of probabilities
• The appropriate quantum of general damages for psychological harm resulting from the traumatic death of a parent
• The appropriate quantum for future medical expenses and the applicable contingency deductions
• Whether an apportionment of damages should be made where plaintiffs suffered harm from deaths of both parents but only claim for one

1. First plaintiff's claim dismissed with no order as to costs. 2. Second plaintiff awarded R220,000 (as per defendant's tender). 3. Third plaintiff awarded R332,470 (comprising R9,805 loss of support; R165,000 general damages; R157,665 future medical expenses). 4. Fourth plaintiff awarded R424,956 (comprising R57,567 loss of support; R165,000 general damages; R202,389 future medical expenses). 5. Fifth plaintiff awarded R578,248 (comprising R95,289 loss of support; R165,000 general damages; R317,959 future medical expenses). 6. Interest at legal rate from judgment to payment. 7. Defendant to pay taxed/agreed costs on scale B, including costs of two counsel and expert witnesses' fees.

Expert evidence in delictual claims must have a factual basis established through admissible primary evidence. Where plaintiffs fail to testify and provide no factual foundation for expert opinions regarding their condition before and after a traumatic incident, such expert evidence amounts to inadmissible hearsay and carries no probative value. The court cannot delegate fact-finding to expert witnesses. In maintenance claims where precise records are unavailable, courts may use the accepted formalism of attributing one part to each child and two parts to each parent. Plaintiffs claiming damages must lead the best evidence reasonably expected to establish their losses on a balance of probabilities. Where harm results from multiple causes but only one is actionable, appropriate apportionment of damages is required.

The court noted that while victims in criminal matters may be exempted from testifying to prevent re-traumatization, such exemption requires a proper professional assessment of the witness's ability to testify, not merely an expert opinion that they suffered trauma. The court observed that no monetary compensation can ever truly make up for loss suffered, and conservatism remains an important factor in awarding general damages - awards must be fair to both sides and not "pour out largesse from the horn of plenty at the defendant's expense." The court commented that evidence of previous comparable awards is fraught with difficulties as no two cases have identical facts, and such awards serve merely as guides. The court also noted the difficulty in attempting to determine adequate solatium and that courts are called upon to do their best with evidence that may often be inconclusive.

This case provides important guidance on the admissibility and probative value of expert evidence in delictual claims for psychological damages. It reinforces the principle that expert opinions must be grounded in proven facts established through admissible evidence, not assumptions. The judgment emphasizes that even where merits are conceded, plaintiffs bear the onus of proving the extent of their damages through primary evidence. The case also demonstrates the application of established principles for calculating loss of maintenance where precise records are unavailable, and the approach to assessing general damages and future medical expenses with appropriate contingency deductions. It illustrates judicial conservatism in damages awards while recognizing the need for fair compensation.