Tarquin Julius v Peter McKenzie t/a Peter McKenzie Attorneys

The plaintiff was shot in the face on 16 December 2008 by a member of SAPS, resulting in the loss of his right eye and partial vision in his left eye. He instructed Masimla attorneys to institute action against the Minister of Police for damages. Masimla failed to issue summons timeously, resulting in the claim prescribing. The plaintiff then instructed the defendant attorney to issue summons against Masimla for damages arising from the prescription. The defendant also allowed this claim to prescribe, leading to the present action. The plaintiff, an unsophisticated man with only Grade 7 education, was 25 years old at the time of shooting. Medical records showed he underwent multiple surgeries including right eye removal in August 2009. He experienced total retinal detachment in his remaining left eye requiring multiple repairs. Dr. Read opined the plaintiff had irreversible blindness. The plaintiff suffered depression and post-traumatic stress disorder, requiring assistance with daily living activities from his girlfriend. The merits were settled by Eksteen J on 7 September 2021, ordering the defendant to pay such damages as the plaintiff could prove. The matter before Makaula J dealt only with quantum of general damages.

• What is the appropriate amount of general damages to be awarded for the plaintiff's injuries, pain and suffering, loss of amenities of life, and permanent disability?
• How should previous awards in comparable cases be used to determine fair compensation?
• To what extent should the defendant attorney be liable for damages the plaintiff would have recovered had the claim not prescribed?

1. Defendant to pay plaintiff R4,348,735 (being total damages of R5,911,235 less interim payment of R1,562,500) to plaintiff's attorneys' trust account. 2. Interest on the amount at prescribed legal rate from judgment to payment. 3. Defendant to pay plaintiff's taxed party and party costs including qualifying fees and expenses of expert witnesses (Dr Read, Willem Annandale, Jean du Rand, Willem Boshoff). 4. Interest on taxed costs at prescribed legal rate from allocatur to payment.

An attorney who negligently allows a client's claim to prescribe is liable to the client for damages to the same extent the client would have been entitled to recover had the claim been prosecuted timeously. In assessing general damages for personal injury, courts have wide discretion to award fair and adequate compensation considering all circumstances. Previous awards in comparable cases should be used as general guidance to ensure the award is not substantially out of accord with similar cases, but should not dominate or fetter the court's discretion. Courts must consider inflation and the current value of money when determining appropriate awards. The assessment should be conservative rather than liberal to avoid injustice to the defendant, while ensuring fair compensation to the plaintiff. Factors affecting prognosis, including the plaintiff's failure to seek or attend treatment, may be considered in determining the quantum of damages.

The court observed that no two cases are identical and previous awards will seldom, if ever, be in all fours with subsequent matters. The court noted that there is a balancing act required in determining damages - courts should be cognisant not to overcompensate the victim at the expense of the defendant. The court commented on the medical evidence showing that the plaintiff's condition was exacerbated by his failure to attend treatment for a five-year period, and that despite the plaintiff's denial, the medical records clearly established this gap in treatment. The court noted Mr. Annandale's opinion that Major Depressive Disorder is treatable and that the plaintiff's emotional condition would likely improve upon receiving compensation enabling him to improve his home and living circumstances. The court's reference to the positive prognostic factors, including the plaintiff's supportive partner serving as his carer and the gradual improvement in emotional adjustment over the years, suggests consideration of mitigation factors in the overall assessment.

This case provides guidance on the assessment of general damages for severe eye injuries resulting in blindness in the Eastern Cape High Court. It demonstrates the application of established principles regarding the court's discretion in awarding general damages and the proper use of precedent awards as guidelines rather than rigid benchmarks. The case is significant for professional negligence claims against attorneys, confirming that negligent attorneys who allow claims to prescribe are liable for the full extent of damages the client would have recovered. It also illustrates the court's consideration of contributory factors affecting prognosis, such as the plaintiff's failure to attend medical treatment for extended periods, and how such factors may impact the quantum of damages awarded. The case provides a contemporary benchmark (2024) for general damages awards in cases involving total loss of one eye and severe visual impairment in the remaining eye, with associated psychological sequelae.