Court awards P500,000 for botched circumcision
Lebogang Mosikare | Friday June 26, 2020 16:26
Justice Jennifer Dube recently presided over the matter before referring it to the Assistant Registrar and Master of the Lobatse High Court, Dumisani Basupi, for assessment of damages. Dube had ruled that the defendants being the MoHW represented by the Attorney General were negligent and failed to deliver on their promise of performing a safe circumcision on the plaintiff thereby admitting liability.
Before the court delivered its verdict, the plaintiff had instituted action against the defendants claiming P400,000 to cover past, present and future medical expenses and P600,000 as compensation for life bound pain and suffering.
“The facts of this case appear in the plaintiff’s declaration and paints an unfortunate event, which resulted in the plaintiff experiencing excruciating pain and discomfort after the circumcision, which necessitated him to revisit other medical facilities,” Basupi said. He added: “In fact, the plaintiff suffered and continues to suffer pains in the form of a painful penile incisional scar alongside constrictive skin leading to poor erection, painful coital (sexual intercourse) activity and early ejaculation”. The plaintiff, on realisation of the shattered prospects of recovery, disclosed by a medical doctor identified only as Dr Ger, began to show signs of depression as the suffering acutely increased. The plaintiff’s depression brought him additional problems. He suffered from insomnia, social isolation, anger, guilt and suicidal ideation, Basupi noted.
“The botched circumcision has further inflicted dire pain and suffering that his marriage is now on the brink of collapse due to poor erections, early ejaculation and painful coital activity. The marriage is marred by erectile dysfunction, which has led him to struggle to bear a child in his marriage, a situation, which frequently ignites verbal marital conflict,” according to the ruling. Basupi noted: “In terms of the Rules of the Court, damages must be pleaded. This is the requirement of Order 20 Rule 15 of the Rules of the High Court. Thus in terms of Order 20 Rule 15 of the Rules of the High Court, a party suing for special damages shall set them out in such a manner that will enable a defendant to reasonably assess the quantum thereof…”
Basupi stated that the plaintiff has done that in his declaration. He, however, admitted that in the papers, the plaintiff did not disclose his age and the number of children he has. This too, he said could have influenced him further. “That the plaintiff suffered permanent injuries to his genitals due to the botched circumcision and continues to suffer the consequences of same and even psychological pain to the extent that his (is an) unhappy marriage has not been disputed. Also not denied is that the plaintiff’s penis feels pain during erection, which results in poor erections, painful coital activity and early ejaculation. For these reasons the plaintiff cannot have effective sex anymore. Furthermore, these injuries have left a scar on the plaintiff’s penis,” Basupi explained. He added: “As a result of these, the plaintiff has sought damages in the amount of P1 million. The plaintiff was on January 21 in 2016 examined by Dr Ger, who is a specialist urologist. The urologist disclosed the tragic news that the circumcision, which was performed on the plaintiff, was irreparably botched. Dr Ger informed the plaintiff that the circumcision was irreparable as there was excess skin on his penis. The findings of Dr Ger were confirmed by another specialist urologist, Dr Legun Huang in March 2017”.
“I understand this to mean that there is still hope that the plaintiff can still bear a child if not children. I say so because it is ejaculation that makes a woman to conceive. This, therefore, is another point that I will take into account during my assessment of damages… Damages are within the discretion of the Court. As stated, they must be pleaded and proven in the case,” Basupi highlighted. He said: “It is trite law that the object of an award of damages is to compensate. Put differently, an award of damages is intended to put the claimant in as good a financial position as he would have been prior to the wrongful act occasioning the damage. The onus to prove such damage lies with the claimant. In short, damages to be awarded should be fair and reasonable, depending on the circumstances of each case.” “Given the aforegoing thereof in assessing damages, I took into account the fact that the plaintiff is fairly an adult male. His sexual gratification through the penis has been taken away from him for good. He will not properly consummate any relationship with females. He is also a married man. I shall therefore, confine myself to assessing his claim on the basis of what he has put forward. In view of the aforegoing, I therefore award him P50,000 for past, present and future medical expenses, P450,000 for general damages of pain and suffering and costs of the suit,” Basupi said.