Moths at war over claim by man crushed by wheelchair
The man has won his claim against the veterans' association, but the organisation is fighting back
Ex-servicemen’s organisation, the Memorable Order of Tin Hats (Moths), is in the middle of a legal battle with one of its visitors, after he was crushed by a wheelchair-bound man at the organisation’s Parkhurst premises.
However, it appears that while the plaintiff has won the first skirmish at the High Court in Johannesburg, the organisation’s appeal against his civil claim means the war is far from over.
Kenneth Els’s civil claim against the Moths was first registered at the high court in 2017 and, according to the ruling last month, the incident in which he claims he was badly injured occurred in January 2014 when he was 55 years old.
In his ruling, Judge Mpostoli Twala detailed how Els had been visiting the Parktown premises as a friend of the Moths when one of its members asked for assistance into the building.
The man, who weighs about 100kg, was in a wheelchair and, because there was no ramp access to the building, Els and some of the organisation’s members, including Paul Jansen and Kenneth Swartz, offered to lift him up the entrance’s stairs.
Jansen held the front of the wheelchair while Els held it at the back, but Els “got his foot stuck on the steps and fell on his back with the wheelchair and the person on it falling on top of him”, the high court judgment reads.
Jansen’s testimony revealed there was no ramp or rails at the stairs at the time, and his wheelchair-bound brother – who has since died – would often ask for assistance after he was left disabled from a broken hip. Meanwhile, Swartz’s testimony revealed that the steps were rather narrow and the wheels of the wheelchair were “hanging over and protruding on the steps”.
Swartz also claimed to the court that the Moths had instructed an architect to draw up plans to build wheelchair ramps for the building before the incident, “but the architect delayed in finalising those plans”.
Els told the court he had been visiting the premises that day to consult with a Mr Cheney regarding the latter’s divorce, and that during his meeting the now deceased disabled member had asked him to help him up the stairs.
“In around October 2018, [the Moths] received a sum of approximately R180,000, a donation from Freemason Johannesburg, for renovations of the building and utilised some of the money to remove the stairs and build ramps and the railings,” wrote Judge Twala.
However, this was too late, said the judge.
“It is clearly apparent that the defendant [the Moths] owed a duty of care to the deceased to make his access easy to the premises with a wheelchair as a member ... (It) is a social club for former members of the army and maintains that brotherhood amongst them.
“It is this brotherhood in which the deceased relied on each time he visited the club, that members and patrons will come and assist him navigate his way around the premises,” he said, indicating that this had gone on for more than a year.
Els had advised the organisation to build ramps and rails on the premises.
“I agree with [Els’s argument] that the defendant had a duty to protect its patrons from harm to be caused by the steps which were not protected by railings and it was in breach of that duty … I hold the view that, had the defendant built the ramps for the wheelchair and put rails next to the steps to protect the patrons, the incident involving the plaintiff would have been avoided,” said the judge.
Because of this, Judge Twala ruled that the Moths were liable to compensate Els for 90% of his proven damages, and to pay for the cost of the action.
Els’s lawyer, Clint Ascar, explained that the “quantum” of the matter – the amount that would have to be paid out – would still have to be argued before court, since the initial application was simply to determine the Moths’ liability for the accident. While he was unwilling to put a number to Els’s medical costs since the accident, he did confirm that his client was still suffering from damage to the lumbar spine and had severe back pain and discomfort.
He also confirmed that the Moths had already lodged an application to appeal Twala’s ruling.