HIGH COURT OF LESOTHO
OFFICER COMMANDING POLICE (MORIJA) 1ST DEFENDANT
ATTORNEY GENERAL 2ND DEFENDANT
the Hon. The Chief Justice, Mr. Justice B.P Cullinan on the 27th
This is a
claim for personal injury. Liability has not been contested and the
only issue is quantum of damages.
plaintiff was at a funeral. An argument developed between the
plaintiff and his two brothers, who had all consumed alcohol.
decided to take their argument to the police station at Morija. Upon
arrival there the plaintiff's brothers suggested that
he be detained
overnight, but in the Reception area, rather than the cells.
plaintiff's brothers departed in a vehicle from the police station,
under protest from the plaintiff. The Officer Commendating
station then pushed the plaintiff into a cell, slamming the steel
door shut upon him, unfortunately catching the top
portion of the
ring finger of the plaintiff's left hand in the door frame. The
plaintiff cried out in pain, exlaiming that his
finger was being "cut
off". The cell door was not opened however. That was 9 p.m. It
remained closed until 6 a.m. the
that time the plaintiff cried out repeatedly, begging for the door to
bo opened. The Reception area in the police station
was but five
metres away. There was a police officer on duty all night. The
plaintiff testified that the distance from the cell
door to the
Reception area, and the construction of the police station, was such
that the police officer on duty overnight must
have heard his cries.
the whole night he was obliged to remain standing in the one
position. His finger bled. Blood ran down the doorway and collided
in a pool
on the floor.
cell door was opened at 6 a.m. the plaintiff fell down on the floor
in exhaustion. The top portion of his finger adhered
to the doorway
frame however - it may be indeed that the finger completely severed
in the fall.
plaintiff does not recall who opened the cell door. He remained
fallen on the floor in exhaustion for about 30 minutes. Then
and requested the Officer Commanding to be allowed to proceed to a
doctor. The plaintiff testified that the Officer Commanding
for a long period, about an hour, to release him, but finally did so
to Scott Hospital in Morija. He was very weak. At the Hospital his
finger was dressed and bandaged, he was given an injection
,hospital authorities directed him back to the police station, with a
request that the police complete a medical form, which
they gave the
plaintiff, and a request that the police supply the severed portion
of the plaintiff's finger. He conveyed such requests
to the Officer
Commanding at the police station. The laxx refused to complete the
form as to the request to supply the severed
portion of the finger,
the Officer Commanding said that "he did not set that piece".
the plaintiff underwent an operation under local anaesthetic to
amputate the remaining portion of the distal phalanx
of the injured
finger, as the wound thereon was ragged. He was obliged to attend the
hospital for treatment many times over a period
of three months.
plaintiff is a qualified plumber employed by the Ministry of
Buildings. He lost no salary nor suffered any demotion as a result
the injury. There is no medical evidence before me of any degree of
disability or any prognosis as to future disability. The
testified that it takes him longer to do some jobs, such as putting
threads on pipes and flashing on roofs. The point
is that the
plaintiff has lost one of 28 phalanxes of his 10 fingers He is
right-handed He is in permanent and pensionable employment
Government. The degree of disability, if any, can only be minimal.
There is no evidence of loss of amenities.
Counsel are aware of any local authority in the matter. Reference has
been made to two South African authorities, but much
to the fingers was suffered in both cases.
assistance is to be found in Vol. I of Kemp & Kemp on The Quantum
of Damages. I regret that the only volume available to
me is the
second edition (1961) of that excellent work, which by now must
surely be regarded as the hand-book of all lawyers on
claims There is a useful table at p.498 of Vol.1 dealing with awards
in cases of injury to fingers and thumbs.
Three cases in particular
are cited, namely Burgess v Union-Castle Mail Steamship Co. Ltd.
(1955)1 Lloyd's Rep 262 (2/3/55 per
Devlin J), Morgan v Swift (1956)
CA No.12 (17/1/56 per Hodson L.J.) and Harris v Harris (1977) C.A.
No. 205 (per Hodson L.J.).
A report of those cases can be found at pp
523/526 of Kemp & Kemp. In the first and third of those cases the
one phalanx, in the second case the plaintiff lost two
phalanxes. The average award in the three cases was over £400.
awards took place over 30 years ago however, and an equivalent
award today would be somewhere in the region of, say, £1000,
or, say not less than M3000. Doing the best I can, as the assessment
of damages in cases of personal
an extremely difficult task, I propose to award that amount to the
plaintiff in respect of the loss of the phalanx of
awards cited seemingly included an award in respect of pain and
suffering, as there was seemingly no separate award under that
The pain and suffering of the plaintiff on the facts of the present
case however, in my judgment call for an award under
a separate head.
The plaintiff must have suffered continuous unrelenting severe pain.
He was obliged to stand in one position for
nine hours, in order to
avoid further injury to his finger. He bled copiously. He suffered
from exhaustion. He then suffered the
pain of an amputation and the
renewal of numberous dressings to his finger. In my view those facts
call for an award much greater
than the average award for pain and
suffering. In all the circumstances I would consider an award of
M2000 to be equitable.
therefore give judgment to the plaintiff in the following amounts
Loss of phalanx of finger M3000
Pain and suffering M2000
costs to the plaintiff.
Plaintiff Mr. S. Phafane
Respondent Mr. T. Mohapi
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