- December 16, 2022
- |Concise Law Reports (CLR), Delict
This was an action where the plaintiff claimed from the defendant, damages emanating from an alleged assault that occurred on the night of 12 August 2017 at Buffalo Bar in Gobabis. The plaintiff alleged that the defendant punched him with a balded fist, more than once on the face and/or the side of the head. It is further claimed that that the defendant hit the plaintiff’s head and/or face against the bar counter. As a result of the assault, the plaintiff alleged that he sustained a rapture of the right lobe with associated haematoma; orbital fat stranding and subcutaneous emphysema; a right orbital blow-out fracture of the conal and inferior oblique extraocular muscle; undisplaced fracture of the medial, posterior and anterior walls of the right maxillary sinus; extensive fracture of the right lamina papyracea with medial displacemement; undisplaced nasal bone fracture; orbital floor damage; and destruction of the right eye with lid lacerations, haemorrhagic chemosis and severe retinal and/or nerve damage. The plaintiff further claims that the assault caused him humiliation, contumelia, injuria and a mild traumatic brain injury.
The sequel of the assault was that the plaintiff allegedly suffered severe facial pain; was hospitalized where he underwent surgical and medical treatment; lost his eye; suffered and continues to suffer pain and discomfort; suffered permanent disability including impaired vision and loss of self-esteem. He further claimed to have suffered and continue to suffer loss of amenities of life. The plaintiff further stated that he will require future hospital, surgical and medical treatment including eye treatment to avoid infection; placement and replacement of a glass eye; psychotherapy. The plaintiff further claimed to have suffered loss of income or potential income.
The defendant denied the claim. He amplified his plea that he struck the plaintiff twice with a balded fist on the left side of the face and on his body. The defendant claimed that he so struck the plaintiff in self-defence as he was under unlawful attack by the plaintiff, alternatively that such attack was imminent. The defendant further pleaded in the alternative that, in the event that the court does not uphold self-defence, he pleads that the plaintiff consented by word or conduct to the actions of the defendant. The defendant further pleaded that in the event that neither self-defence nor consent is upheld then, he pleads that he acted under extreme provocation by the plaintiff and called for the dismissal of the plaintiff’s claim. The defendant did not persist with his plea that the plaintiff consented to the assault and the ingenuity depicted in this regard in the plea was of no consequence to the matter. Although the defendant raised the plea of extreme provocation as the basis for acting in self-defence, in evidence he testified that his conduct was not an aftermath of provocation by the plaintiff, but rather that of an imminent attack on him. It was not in dispute that the defendant assaulted the plaintiff.
SIBEYA J considered the matter thus:
At the commencement of the trial and pursuant to an agreement between the parties, the court ordered a separation of the issues of merits and quantum. The matter proceeded on the merits only while quantum stood over for later determination.
In respect of burden of proof, it is trite law that the plaintiff bears the burden to prove his claim on a balance of probabilities. In Mouton v Mouton (I 889/2011) [2021] NAHCMD 91 (26 February 2021) para 30, Ueitele J said the following regarding the test applicable to delictual claims based on assault:
‘[30] In the unreported judgment of Lubilo and Others v Minister of Safety and Security (I 1347/2001) [2012] NAHC 144 (delivered on 8 June 2012), this Court (per Damaseb JP at paragraph 9) remarked that an assault violates a person’s bodily integrity and that every infringement of the bodily integrity of another is prima facie unlawful. Once infringement is proved, the onus moves to the wrongdoer to prove some ground of justification. But before that duty arises, the plaintiff must allege and prove the fact of physical interference. It thus follows that in order to succeed in his claim the plaintiff carries the onus to prove the physical infringement of his body (by the application of force to his body) by the defendant. The onus to show justification for the infringement of the plaintiff’s body is on the defendant.’
Held that:
- An assault violates a person’s bodily integrity and that every infringement of the bodily integrity of another is prima facie Once infringement is proved, the onus moves to the wrongdoer to prove some ground of justification. But before that duty arises, the plaintiff must allege and prove the fact of physical interference. It thus follows that in order to succeed in his claim the plaintiff carries the onus to prove the physical infringement of his body (the application of force to his body) by the defendant.
- Held further that there was no imminent attack that warranted the defendant to defend himself against and even if it is assumed that the defendant harboured an imaginary belief that there was an imminent attack on him, such belief does not come close to being a reasonable belief.
- Held further that it is foreseeable, without dispute, that heavy blows to the face and the eye of another person causes injuries and the defendant, therefore, foresaw that by assaulting the plaintiff he will cause injuries.
- Held further that the defendant’s version was not only highly improbable but false.
As a result, the defendant was found liable for general damages and special damages suffered by the plaintiff resulting from the blows inflicted by the defendant to the plaintiff on 12 August 2017, including damages for the facial and eye injuries sustained on 12 August 2017, with costs of suit, including costs on one instructing and one instructed legal practitioner. The matter was postponed for allocation of a hearing date to determine the quantum.
Bergmann v Rautenbach (HC-MD-CIV-ACT-DEL-2018-01752) [2022] NAHCMD 687 (16 December 2022)