Pillay v Save Wholesalers Cash & Carry CC (1036/12) [2022] ZAKZPHC 87 (31 January 2022)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2022
>>
[2022] ZAKZPHC 87
|

|

Pillay v Save Wholesalers Cash & Carry CC (1036/12) [2022] ZAKZPHC 87 (31 January 2022)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL DIVISION
PIETERMARITZBURG
Reportable/Not
Reportable
CASE
NO: 1036/12
In the matter between: -
GLORIA
PILLAY

PLAINTIFF
and
SAVE WHOLESALERS CASH
& CARRY CC

DEFENDANT
This
judgment was handed down electronically by circulation to the
parties’ legal representatives by email. The date and time
for
hand-down is deemed to be 16h00 on  31 January 2022
ORDER
The
following order do issue:
1.
The defendant
is directed to pay to the plaintiff the sum of R631 100.02 (six
hundred and thirty-one thousand one hundred rand
and two cents) as
part payment of the plaintiff’s claim, which sum shall be paid
within fourteen (14) days of the date of
this judgment by electronic
funds transfer into the trust account of the plaintiff’s
attorneys Kooben Chetty & Associates:
Account
name: Kooben Chetty & Associates Trust account
Bank:
Nedbank
Branch:
KZN Inland
Account
no.: 1[...]
Branch
code: 1[...]
2.
The following
directions are issued in respect of future medical expenses:
2.1
Future medical
expenses are to be computed by an actuary in respect of the following
interventions/ treatments:
(a)
medication -
R200 per month
(b)
orthopedic
surgeon - 1 consultation per annum
(c)
wedge for the
heel
(d)
knee brace
(e)
evaluation by
a biokineticist
(f)
evaluation and
diet plan by a dietitian
2.2
It is to be
assumed that the plaintiff’s life expectancy remains
unaffected.
2.3
Contingency of 20% is to be applied.
3.
The following
directions are issued in respect of future loss of earnings:
3.1
Future loss of earnings are to be actuarially calculated from 1
November 2021
to date of
retirement
of plaintiff at age 60 years.
3.2
It is
assumed
that life expectancy has not been compromised.
3.3
The plaintiff’s average income as demonstrator/manager is
R5 464
per month as at end of 2019. The average income will also
apply as at 1 November 2021.
3.4
It is assumed that the plaintiff will not work as a demonstrator but
will continue
to manage the shows and sale of leather care products.
Therefore there is a residual earning capacity.
3.5
Future income from 1 November 2021 accruing to the plaintiff will
increase in
accordance to inflation and to be capitalised.
3.6
25%
contingency
to be applied.
3.7
All other considerations normally taken into account in actuarial
calculations of this nature
to be
taken
into account.
4.
Costs are reserved.
JUDGMENT
Moodley J
Introduction
[1]
While shopping for ice-cream at the defendant’s supermarket on
31 December 2009,
the plaintiff slipped and fell onto the ground. She
subsequently instituted an action against the defendant for damages
in the
sum of R5 009 850.87 which she allegedly suffered consequent
to injuries to her left knee and back sustained in her fall in the

supermarket.  Liability was settled between the parties with the
defendant accepting an agreed apportionment of 90% of the
plaintiff’s
proven and/or admitted damages. The trial therefore proceeded only on
quantum.
[2]
The plaintiff alleges that she suffered torn cartilage and internal
derangement to
her left knee joint and injuries to her back, the
nature and effects of which are set out in a letter dated 21 April
2010 written
by Mr MM Raghavjee, a Specialist Orthopaedic Surgeon.
In that letter, the contents of which are not in dispute, Mr
Raghavjee
states that:
(a)
The
plaintiff
was
referred to him on 3 March 2010, after treatment by Dr NS Mahomed and
the physiotherapist Mr J Gopal.
(b)
When she consulted Mr Raghavjee she was in
a wheelchair and subsequent
examination
confirmed
that she had a painful limp on her left leg.
(c)
The left knee joint had an effusion
(collection of fluid) with stiffness in the knee and tenderness
on
the inner aspect of the joint. Her spine also
showed muscle spasm on both sides of the spines. However x-rays of
the thoraco-lumbar
spine showed no abnormality.
(d)
Mr Raghavjee diagnosed ‘an internal
derangement of the left knee’ and treated it as a matter of
urgency. Under general
anesthetic in theatre, he removed fluid from
the left knee and repaired the torn cartilage. She was discharged
after two days on
crutches.
(e)
Mr Raghavjee saw the plaintiff subsequently
on 8 March 2010, 17 March 2010 and 21 April
2010
.
At each consultation, the doctor prescribed anti-inflammatories and
pain killers and referred her to Mr J Gopal for physiotherapy.
(f)
When the plaintiff was last treated by Mr Raghavjee, the wounds
around her left knee
had
healed
and she was
recovering from the injury and the surgery. He advised her to take an
anti-inflammatory and painkiller.
[3]
The plaintiff alleges that as a direct consequence of the injury she
sustained, she
required the aforesaid hospitalisation and treatment
by Dr Raghavjee and suffered and will suffer in the future:
(a)
pain,
discomfort
and
inconvenience;
(b)
a loss of earnings;
(c)
temporary
disablement, as she is unable to
walk properly and is on crutches.
(d)
a
diminution
of
the enjoyment of the amenities of life, in that from the date of her
fall, she has not been able to participate in any physical

recreational activities and to perform housekeeping duties.
[4]
The plaintiff alleges that as further consequences of the injury
suffered by her:
(a)
she will
incur
future medical expenses
including:
(i)
performance of a left knee arthroscope,
debridement, meniscal repair and/or synovectomy together with further
and future medical
expenses in the sum of R657 390; and
(ii)
domestic assistance and assisted devices in the sum of R327 840.
(b)
she will
require
the following future
medical treatment under general anesthetic:
(i)
an arthroscopy; and
(ii)
a debridement at an estimated cost of R20 000.
[5]
The plaintiff therefore alleges that she suffered loss and damages
arising from the
injuries in the sum of R5 009 850.87 constituted as
follows:
(a)
past hospital and medical expenses

-
R94 820.87
(b)
future hospital and medical expenses

-
R985 230
(c)
past loss of earnings

-
R928 900
(d)
future loss of earnings

-           R2
500 900
(e)
general damages inclusive of shock, pain and suffering,
discomfort and loss of
amenities of life and temporary
disablement

-
R500 000
Total
R5 009 850.87
[6]
At the commencement of the trial, Mr
V Naidoo SC
who
represented the plaintiff, listed the following as issues remaining
for determination by this court:
(a)
past medical expenses for which the
plaintiff produced a schedule from her
medical
aid;
(b)
future medical expenses which need to be
identified and computed for the knee
replacement
and
for the devices and expenses required as a result of the injuries to
the plaintiff’s back;
(c)
loss of earnings: the business which the
plaintiff had been working for shut down in the
same
month
that she was injured. In 2011 she started her own business which she
is still running. The loss of earnings is based solely
on the
substituted labour where the plaintiff was compelled to employ a
driver from 2011 onwards, and to employ additional promoters
to
assist her from 2016. The experts would testify on this issue; and
(d)
general damages.
[7]
Mr
M Maharaj
who represented the defendant, advised the court
that the defendant accepted that the plaintiff required a knee
replacement but
disputed the injury to her back. In respect of the
loss of income claim, the defendant submitted that the plaintiff
required additional
promoters because her business had grown. The
defendant also disputed the need for a driver and the alleged cash
payments to her
employees.
The trial: The
plaintiff’s case on quantum
[8]
Three lay witnesses and three experts were called by the plaintiff.
The plaintiff,
Mrs Gloria Pillay, who was born on 20 May 1966,
described how she fell on 31 December 2009: as she was approaching a
freezer containing
ice-cream, she slipped on water on the floor which
she had not noticed and fell on her left knee. When she tried to get
up, she
slipped and fell onto her back. She tried to get up again,
but again slipped and fell onto her back. She then grasped a rail and

stood up. Four days after the fall, the plaintiff was treated by Dr
Mahomed with anti-inflammatories for her knee and back pain.
On 3
March 2010, she found herself incapacitated. Dr Mahomed referred her
to Dr Raghavjee who operated on her the same day.
[9]
After the operation, the plaintiff was treated by Dr Mahomed several
times, at times
for her backache, at times for the knee, sometimes
for both, as listed in Exhibit “A118”. She testified that
prior
to the accident, she did not have back pain and was able to
bend and crouch without a problem, but now she is unable to stand for

a long time and employs domestic help. A physiotherapist Mr Gopal
also treated her knee which helped with the pain. The plaintiff
who
was 43 years old when she fell, testified that the fall impacted
adversely on her both emotionally and physically, and on her

marriage. Nevertheless she refused categorically to have a knee
replacement because despite the assurances of the doctor, there
was
no guarantee that her knee would improve.
Past medical expenses
[10]
On a schedule of claims for medical expenses submitted to her medical
aid (“A113”
– “A117”) the plaintiff
highlighted the claims that related to her knee and back. She had
also drawn up a schedule
herself in which she correlated her
treatment and expenses with the relevant claims extracted from the
medical aid schedule (“A103-106”).
However she was unable
to obtain any vouchers or invoices to verify the claims from the
doctors or the medical aid.
Loss of earnings
[11]
The plaintiff testified that she previously worked for a company that
sold leather care products.
With the help of an assistant she would
set up a stand, demonstrate the product and bank the day’s
proceeds. When demonstrating
the product, they polished one shoe so
that the customer could compare it with the other shoe. She therefore
crouched regularly
to polish shoes.  She earned R9 000 per month
net until 31 December 2009 when the company closed down. She did not
work in
2010. Thereafter the plaintiff established her own business
under the name Indigo Rain CC, and in 2011 commenced selling the same

products at exhibitions in cities throughout South Africa, including
Cape Town, Bloemfontein and East London. She attended all
the
exhibitions until the last one in March 2020.
[12]
The plaintiff testified that after the accident she could not drive
long distances. Therefore
when she started the business, she employed
a driver who assisted her to load the vehicle, drive to the venue,
set up the stand
and promote the products. She paid him in cash. She
stated that ‘her health started deteriorating in 2016’ by
which
she meant she had problems with her knee and back and she could
no longer bend to demonstrate the products. So she employed another

promoter, Meril, which increased her business expenses. The plaintiff
stated that she had to be present at all shows as it was
a direct
marketing business and she could still do handbags and ‘boost
the business’.  There were sometimes one
or two
exhibitions per month and payments to the promoters were commission
based. She pays the driver +/-R6 000 commission per
show, R1 000 per
trip and R1 500 for longer trips. Meril is paid +/- R8 000. The
plaintiff herself earns R13 000 per month. She
has no office expenses
as she works from home. She believes that she should have earned +/-
R20 000 a month and therefore she is
claiming R7 000 per month loss
of income.
[13]
The
plaintiff confirmed that Exhibit “E”
contained bank statements which reflected some of the business
expenses incurred
for each exhibition including toll fees, and
reconciliation statements for all the exhibitions from 2012-2016
(“E180”
– “E265”), each of which showed
a profit and therefore the business was profitable. She also
confirmed that in
2016 she attended a number of shows and generated
income. She paid salaries/ commission in cash at the end of each
exhibition and
the amount was dependent on the number of shows. The
annual financial statements (from “E266” onwards) and the
schedule
of staff salaries (at “E368”) were submitted to
the South African Revenue Services via her accountant.
[14]
With
reference to the ‘Schedule of
Staff Salaries’ (“E368”) the plaintiff confirmed
that she did not draw a salary
in 2012. In 2013 she drew a salary of
R63 000. Although the statement reflects a salary/commission
payment to staff as ‘Nil’,
she stated that she paid Mr
Govender in cash. In 2014 she drew R65 000 as her salary and
paid Mr Govender although no salary
is reflected in the schedule. In
2015, 2016, 2017, 2018 and 2019 she paid staff salaries in the
amounts of R150, R6 530, R83 605,
R49 990 and R180 000
respectively. For those years she drew a member’s salary of
R69 000, R69 000, R50 000,
R68 000 and R75 000
respectively. She stated that the salaries increased when there were
extra exhibitions and all the
figures in the schedule were submitted
to SARS.
[15]
Under cross-examination, the plaintiff confirmed that although she
slipped, fell and injured
her right knee in 2017, and consulted a
doctor (whose name she could not recall) for that injury the right
knee was fine and ‘it’s
more on the left.’  She
also confirmed that she told the defendant’s expert, Ms Sonia
Hill, that she employs three
people: two promoters and a driver  as
she had counted herself as a promoter, although she conceded she
could not employ herself.
She also admitted that she had not
disclosed to any of the experts that she employed her daughter Meril
as the second promoter
because she did not think it was relevant. She
also confirmed that she has a warehouse in Pietermaritzburg to store
her stock,
but no office. The plaintiff admitted that she also did
not tell Ms Hill that that she was running a tuck-shop, again because
she
did not think it was relevant. She thereafter alleged that her
niece runs the tuck-shop but she is involved in its operation as
the
tuck-shop is at her house but only to the extent that if her husband
or niece are not at home, she serves customers.
[16]
The plaintiff confirmed that she and her two employees worked in
2019, and that she paid her
two employees in cash after every
exhibition, and kept a record of her expenses and reconciliations
which proved how much each
show cost. The plaintiff confirmed that
before she started her own business in February 2011, she earned R9
000 per month and thereafter
she first drew a salary of R12 000 a
month and subsequently R13 000 per month from Indigo Rain CC. She was
unable to explain how
this constituted a loss of income and conceded
that in fact she was suffering no loss and that she received an
average income of
R20 000 a month. In response to the proposition
that she employed staff because her business grew and the cost of the
employment
of staff was therefore part of the costs of running her
business, she confirmed that she needed to be present to ensure that
the
business was run properly and to collect the cash. She did
however admit that as a result of employing staff, her business grew

and that she could not on her own achieve the income figures which
increased annually, except for 2017 (as reflected in “B78”),

and that extra staff was employed to cope with the business growth.
However under re-examination she back tracked and stated that
she
need the extra staff because of the growth of the business and her
injury.
[17]
The plaintiff confirmed that although the success rate for knee
replacements was between 80%-95%,
she would not undergo the operation
even if the defendant paid for it and she had not authorised that
claim which could therefore
be deleted. I shall deal with further
relevant aspects of her cross-examination in the discussion that
follows.
[18]
Under re-examination, despite her attempts to explain why she told Ms
Hill she employed three
assistants, the plaintiff’s reasons
remained unclear. She alleged that she was never told to register her
employees. She
confirmed that she demonstrated at between one to
three exhibitions per month (not more), and that her average monthly
income was
R13 000 from 2011 to present. She however testified
that she required additional staff both because of her injury and
growth
of the business. She had required two assistants for the last
exhibition in March 2020 and if she had more than one exhibition at

the same time, she would employ casual staff.
[19]
Mr Kenneth Govender (‘Mr Govender’), who worked for her
as a driver and promoter
from 2011, testified that he drives the
plaintiff to the shows wherever they are held because she is unable
to drive. He also sets
up the products for the exhibition and
promotes the products. He initially stated that he was paid R1 000
for driving and +/- R6
000 commission per show which usually extended
over four days, for which the plaintiff paid him in cash.  There
were no shows
held in 2020. Mr Govender testified that from 2011
until Meril commenced working in 2016, he was the only assistant
employed by
the plaintiff.
[20]
Under cross-examination, Mr Govender revealed that he is the
plaintiff’s nephew. Although
he initially stated that he earned
a commission of between +/- R5 000 –  R6 000 per show, he
thereafter estimated his
commission to be between R4 000 – R5
000. Similarly although he initially stated that he was paid R1 000
for driving, he
added that he would at times be paid R100 per day to
drive to Durban. If he drove to East London, it would be R1 500. He
had not
received an increase since 2011 and was always paid in cash.
He confirmed that the plaintiff had only one vehicle, ‘a
Peugeot
kombi’. Mr Govender reiterated that he could set up the
stall on his own without supervision, but the plaintiff was always

with him during the shows, and that she never stopped working. If
they were busy, she would assist because although she was unable
to
bend down to demonstrate, she could demonstrate the product on a
handbag. After Meril was employed as a promoter in 2016, the
three of
them attended every show. Before Meril started, he was the only
assistant, and no one else was employed by the plaintiff.
To his
knowledge the stock of the products sold by them were only stored in
the plaintiff’s home and not in a warehouse.
[21]
Meril Pillay (‘Meril’), the plaintiff’s daughter,
testified that she lived
with her parents. In 2016 the plaintiff
could no longer cope and asked her to assist. The plaintiff trained
her as a promoter,
and she joined the plaintiff and the driver in the
business. Meril was unable to give the exact amount that she earned
but she
confirmed that commission was R20 –  R25 per unit
and she earned between R6 000 – R8 000 per show. She confirmed

that the plaintiff attended to all the administration and
arrangements for each exhibition, and that from the time she joined
the business in 2016 until March 2020, only she and the driver worked
with the plaintiff; there were no other employees.
[22]
Under cross-examination, Meril listed the 11 – 12 shows that
normally took place every
year. She stated that although she and Mr
Govender were capable of doing the shows on their own, the plaintiff
always attended.
The plaintiff kept the record of the stock and
proceeds generated at each show. Meril did not know about stock kept
in a warehouse.
She confirmed their income fluctuated because her
commission was dependent on the sales, and stated that she received
approximately
R6 000 per show, sometimes less depending on sales. The
plaintiff always paid them in cash after each show. Meril confirmed
that
she was not registered as an employee but was paid by Indigo
Rain CC, and that there is a single business vehicle.
The
plaintiff’s experts
[23]
Dr Ravine Yachad, a Spine and Orthopaedic Surgeon who examined and
assessed the plaintiff on
12 January 2015 and 16 March 2018,
testified on his report dated 19 January 2015.  He consulted
with the plaintiff about the
injuries to her left knee and lower back
(lumbar).  Although there was no abnormality to her neck and
thoracic spine, her
lumbar spine displayed a tenderness over both
para-vertebral musculature of the lumbar area extending from L-2 –
S1 region
and movements were decreased due to pain. In respect of her
lower limbs, specifically with the left knee, the plaintiff had a
surgical
scar but no deformities or muscle atrophy. She had sensory
deficit over the lateral arthroscopic scar, marked tenderness over
the
medial joint line suggestive of a meniscal injury, confirmed by
the positive medial Mcmurray test. The plaintiff had full range
of
movements although pain with full flexion. The remaining left lower
limb and the right lower limb and her central and peripheral
nervous
system were normal.
[24]
Dr Yachad confirmed that he had not recommended a knee replacement.
However, he opined that as
a result of increasing dysfunction,
medication would no longer help and degeneration would occur if the
plaintiff refused surgery.
He warned that there was the risk of long
term side effects to constant consumption of medication. The report
on the x-rays done
on 8 January 2015 recorded specifically that there
was ‘Grade 1 anterolisthesis on L4 and L5’ of the lumbar
spine and
no abnormalities. He opined that the anterolistheses on L4
and L5 was associated with normal degeneration of the lumbar spine
and
not as a result of injury, and therefore agreed with Dr Osman
that ‘the L4/5 spondylolisthesis is pre-existing and she
sustained
a soft tissue injury over this, which has resulted in her
having back pain at this present moment in time.’. He could not

opine if her back pain was a sequela of the injury or an existing
pain which was exacerbated by the injury.
[25]
Dr Yachad confirmed that because of the plaintiff’s injuries to
her back and knee, she
would have problems with sitting and standing.
The knee injury would exacerbate the lower back pain and her
excessive weight will
have an influence on the pathology of both the
knee and the lower back. He explained that the osteoarthritis is the
same as degeneration,
to which the weight and age and injury of the
patient would contribute. I shall revert to Dr Yachad’s
comments on the future
medical expenses listed in his report.
[26]
Under cross-examination, Dr Yachad stated that although the plaintiff
had been working despite
the knee injury, her ability to work may
have been facilitate by medication and her ability to cope with the
injury. He concurred
with Dr Osman’s opinion that the knee
replacement operation has a high level of success and the plaintiff
would be more functional.
Although every surgery has complications,
he would recommend a knee replacement. Nevertheless, it was a
prerogative of the patient
to decide whether she wanted the operation
or not.
[27]
Ms Guinnevere Reddy an Occupational Therapist assessed the plaintiff
on 8 June 2015 and compiled
a report. She subsequently assessed the
plaintiff again 28 September 2016 and compiled a supplementary
report. Ms Reddy also filed
a joint minute with Ms Debbie Stirton,
the Occupational Therapist instructed by the defendant. She confirmed
the contents
of her first report viz that according to Beck’s
Depression Inventory, the plaintiff presents with severe depression
which
indicates clinical intervention, she has no cognitive issues
and; her 58% score on the Oswestry Low Back Pain Disability
Questionnaire
(which is used to measure a patient’s permanent
functional disability) indicates a severe disability. The score
suggests
‘that pain remains the main problem… but
activities of daily living are affected.’
[28]
Ms Reddy testified that the defendant’s expert had in fact
indicated that the plaintiff’s
lower back pain was more severe
and described her as crippled. However she was mistaken - it was the
plaintiff who described herself
as crippled to Ms Stirton, as
corrected under cross-examination. Ms Reddy opined that even if the
plaintiff had no problems with
her back as a result of her injured
knee, there would be an impact on her back as over the years she
would develop back pain and
there may also be additional pressure on
her right knee. While there were certain chores that the plaintiff
could not perform including
climbing a ladder or crouching and
stooping or lifting a heavy load, she was able to perform light
domestic tasks. While the plaintiff
was able to perform some tasks of
a promoter, she could not bend down and therefore she could not
perform all the responsibilities
as a result of the physical sequelae
of her injuries.
[29]
However as the Epic Spinal Function Sort Test indicated at the second
assessment, the plaintiff
met most of the requirements for sedentary
work, Ms Reddy recommended a sedentary half day post, with an earlier
retirement of
eight to ten years. She also recommended physiotherapy
to manage lower back pain and a
biokineticist
evaluation to provide exercises to strengthen the
knee and lower back and to manage pain, which would also assist with
the weight
loss program. When Ms Reddy assessed the plaintiff on 28
September 2016 the plaintiff informed her that she suffered increased
pain and had left work, she had stopped working as a promoter.
[30]
Ms Reddy reported that according to the Matheson Functional Pain
Scale, the pain reported by
the plaintiff is ‘a present pain
which is not yet at a level that prevents performance of the current
activity’. In
the second evaluation of the plaintiff, Ms Reddy
recorded that on Oswestry Disability Index which is used to measure a
patient’s
permanent functional disability, the plaintiff scored
54% for the following reason:
‘
There
is a measure of functional disability due to lower back and lower
limb pain as the Oswestry is designed to test pain related

disability.’
In the same evaluation of
the plaintiff in 2015, she scored within the range of severe
disability with a score of 58%. (Therefore
there appears to be an
improvement from the earlier score of 58% to the later score of 54%.)
[31]
Under cross-examination, Ms Reddy confirmed that her assessment that
the plaintiff had a ‘severe
disability’ was based on the
answers tendered by the plaintiff to questions on a standard
questionnaire which was not specifically
adapted to the plaintiff.
She confirmed that she estimated a retirement age being eight to ten
years earlier because the plaintiff
told her that she had left work.
However she was not aware that the plaintiff in fact had been working
when she was assessed in
2016 or that she runs a tuck-shop. Ms Reddy
did not disagree with Ms Hill’s assessment and observation of
the plaintiff.
She agreed that if the plaintiff had to work on a
phone or computer, she could continue to work and earn a living. She
also agreed
that while the plaintiff may not be able to work as a
promoter, she could work half a day, and if she had a knee
replacement, she
would be functional and able to cope better and to
work. Ms Reddy confirmed that if the plaintiff had two assistants and
a driver,
she would be able to continue working in a supervisory
capacity.
[32]
Ms Shaida Bobat, an Industrial and Clinical Psychologist assessed the
plaintiff on 31 July 2015
and compiled a report dated 26 August 2015.
She confirmed the contents of her report, specifically her
recommendations and suggestions
in respect of the earnings of the
plaintiff (“A82”) and that she had compiled a joint
minute with Ms Hill (Exhibit
“C18”) and that they agreed
that had the incident not occurred, the plaintiff would still be
self-employed. She explained
the manner in which she calculated the
salary and the earnings of the plaintiff:
‘
9.1
Pre-incident functioning
…
The
claimant runs the business from home but also attend shows and other
events for
15 days in a month
.
She currently earns
commission of R12,
000 per month
. It is
probable
that she would have employed one staff member and she would have
driven to and from work. Therefore, her monthly earnings would
have
been R12000 + R7000
(monthly average
that she pays her staff)
+ R1000 (the
amount she pays for the driver).
Ms
Pillay’s total earnings would have been R 20 000 a month
….
9.2 Post incident
functioning
·
…
She earns commission of R12 000
per month.
·
…
She has
2
staff who earn between R 5000 and R 9000 per month in commission
(average R7000 each)
. A driver is used
to transport them to events for R1000 per month. Ms Pillay explained
that
she is forced to employ two staff
as she cannot manage the work with one staff member
and she is forced to employ a driver as she cannot drive distances as
she used.
…
Having regard to the
above, the following applies with respect to loss of earnings:
·
The claimant should be compensated for the
difference between her potential pre incident earnings and her post
accident earnings
from 2011 until retirement age ie pre-incident:
R20000 per month and post incident
R12000 per month
. Annual inflation
linked increases apply.’ (My emphasis.)
[33]
Therefore Ms Bobat’s view was that a fair and just way in which
to calculate the loss would
be the payment to the driver and the
average commission paid to the promoters, and she based her
calculations on the figures given
to her by the plaintiff. She
concluded that the plaintiff’s monthly earnings would have been
R12 000 + R7 000 +
R1 000, a total of R20 000. Ms
Bobat found it relevant that the plaintiff lost her job but opened
her own business, succeeded
as a result of her commitment and strong
work ethic and remained motivated despite her injury. She added that
even if the plaintiff’s
business was booming and she had to
hire additional staff, the plaintiff’s own skills were
important as she had the knowledge
and was the goodwill of the
business. She opined that had the incident not occurred, the
plaintiff would have had to get an assistant
but she would have
driven around herself. She was not aware of the current status of the
plaintiff’s work or income. She
was aware that the plaintiff
had employed only a driver as at 2015.
[34]
Under cross-examination by Mr
Maharaj
, Ms Bobat confirmed that
plaintiff always had the intention and commitment to return to work.
Mr Maharaj put to Ms Bobat
that the plaintiff had to employ
further staff because of the substantial growth of her business every
year from 2011, and further
that the plaintiff always had an
assistant, even when she was employed by Pepper Fish as a
demonstrator. In response Ms Bobat conceded
that the plaintiff’s
earnings should be increased only by the R1 000 per show that she
paid the driver
.
However in response to the proposition that
the plaintiff’s capacity to earn had not diminished, Ms Bobat
reiterated that
had the plaintiff not been injured, she would have
been able to drive herself and she needed an assistant because she
was unable
to play a more active role.
Defendant’s case
[35]
The defendant called three experts to testify. Dr Afzal Aboobaker
Osman, a Specialist Orthopaedic
Surgeon, who examined and assessed
the plaintiff on 17 October 2019, confirmed the contents of his
report. He testified that the
plaintiff’s main complaint was
her left knee which showed the most consequences of the injury and
she also reported back
pain.  She took medication for pain after
the knee surgery and advised him that her back pain was aggravated by
driving long
distances. Dr Osman accepted that the plaintiff’s
inability to attend shows, run and dance is the sequelae of the knee
injury.
He also testified to limits of her physical activities such
as walking sitting, kneeling and driving. Dr Osman testified that
because
of the spondylolisthesis or osteoarthritis which is unrelated
to her fall and her activities being restricted, there is a further

compromise in the spinal area which causes pain. He explained that it
was unusual for an injury of the nature described by the
plaintiff to
cause traumatic spondylolisthesis of L4 and L5 as the fall would have
had to be a very high velocity injury like one
sustained in an
accident. His opinion was that the fall of the plaintiff would have
contributed to a very small percentage of the
lumbar pain she
reported.
[36]
Dr Osman referred to his radiological examination of the x-rays of
the plaintiff’s lumbar
spine, pelvis and both knees which were
taken on 17 October 2019 on which he had commented:
‘
Lumbar
spine shows grade 1 spondylolisthesis of L4/L5.
Reviewed some previous
x-rays on the 16.03.2018, which was labelled as no patellofemoral
joint problems, which I believe to be incorrect.
X-rays done
presently reveals severe narrowing of the medial compartment and
widening of the lateral compartment of the left knee,
which is
something that is expected as a result of medial meniscectomy.’
He clarified that the
reduced bone mineralization which had nothing to do with the
spondylitis or the fall, was also as a result
of the plaintiff’s
age. He pointed out that the early bilateral facetal joint arthrosis
in respect of L3 and L5 were quite
high and there would have been no
exposure on this part of the spine during the fall by the plaintiff.
He pointed out that
the facetal joint arthrosis was also quite
extensive and consistent with the spondylolisthesis and that the most
common cause is
degeneration. The x-rays also show degeneration of
the hip and hip joints which may be treated but the mobility of the
rigid joints
would cause pain.
[37]
Dr Osman opined that the knee replacement which would not only assist
with the back pain, there
would also be a progression of abnormal
alignment of the spine after the injury. Without the knee
replacement, the degeneration
would continue. There would be more
pain and the more active the plaintiff, the greater the degeneration.
Dr Osman was confident
that the progression of the degeneration could
nevertheless be controlled through simple conservative treatment,
such as the application
of a wedge to a heel of a shoe. This would
help with the pain and allow the patient to move more easily and she
would therefore
become more functional as her alignment is corrected.
The progression of the disease will also be slowed.
[38]
Dr Osman opined further that although the plaintiff will have
increased mobility and ability
to stand, walk and drive as a result
of the knee replacement, she will still have pain and difficulty in
crouching. In respect
of assessment of the success rate of the knee
replacement injury being 85% to 90%, he admitted that there was a 10%
chance that
the procedure could go wrong; there could be a residual
of discomfort in some people; the procedure may not be carried out
properly;
the most general complication was an infection but the risk
was 0.5%. He emphasised that nevertheless the benefits far outweigh

the risk. I shall revert to Dr Osman’s comments on the future
medical expenses.
[39]
In response to the proposition by Mr
Naidoo
that the injury
caused the spondylolisthesis to the plaintiff’s lumbar spine,
Dr Osman firstly stated that the spondylolisthesis
would become
symptomatic at some stage, even if it was not disputed that the
plaintiff had back pain prior to the accident. He
opined that when
she complained of back pain to Dr Mahomed, she merely had a topical
injury to her back. She did not mention back
pain to Dr Raghavjee
four months later. Therefore he only treated her knee and sent her
for physiotherapy for her knee. Dr Osman
stated that during his
clinical examination, he found nothing drastic or unrelated to the
spondylolisthesis and all his findings
were consistent with the
spondylolisthesis to the spine of the plaintiff. The symptoms that
she complained of were secondary. He
opined that the fall would have
aggravated the sub-tissue injury and inflammation but it did not
progress the spondylolisthesis
nor would any access to the spine have
impacted on the hip. The plaintiff had even degeneration of the hip -
the changes in her
hip are symmetrical, and therefore she was not
favouring the right side which would accelerate the degeneration to
the right knee.
[40]
Dr Osman agreed that as a result of the manner in which the plaintiff
works and her physical
state, she may get back pain.  Referring
to the radiological examination in respect of the lumbar spine (on
B8) Mr
Naidoo
put to Dr Osman that the trauma could cause
anteriorlisthesis and after the plaintiff fell on her knee, her fall
on her back could
have led to the spondylolisthesis. However, Dr
Osman disagreed with this, he stated that there has to be severe
trauma. The plaintiff
fell on her back when she tried to get up.
Although she fell twice on her back, these were not severe falls
because she had not
raised herself high enough to fall with forceful
impact on her back.
[41]
The following aspects of Dr Osman’s report remain undisputed:
‘
SHOCK
PAIN AND SUFFERING
Severe – 2 to 3
weeks immediately after the accident.
Moderately severe –
6 months.
Pain would have improved
for several years. However, progressively got worse because of the
increasing narrowing of the medial compartment
of the left knee.
Now has pain, discomfort
and disability.
LOSS OF AMENITIES
OF LIFE
Difficulty with driving
long distances due to back pain.
Difficulty standing,
sitting and walking long periods of time, bending, kneeling and
squatting, and unable to run and do dancing
due to left knee pain.
FUTURE EARNING
CAPACITY
Over the last 1-2 years
there would have been 25-50% reduction in ability to be at the stands
to promote her products. However,
this will need to be assessed by
the relevant expert in terms of future earning capacity following the
total left knee replacement,
if it is successful (90-95% chance that
it will be successful) then she will be able to be more functional.’
[42]
Dr Osman reported that the plaintiff had advised him that her
financial status was as follows:
‘
Independent.
Owns a company called Renapur products which is used to nourish a
variety of leather products. Unable to attend shows
like she used to
do, which has resulted in a slight drop in her earning ability’.
Dr Yachad agreed with Dr
Osman’s assessment that:
‘
FUTURE
MEDICAL EXPENSES
I believe once the left
knee problem has settled down, the back problem can be treated
conservatively and if she develops severe
spinal claudication, then
she would require an MRI scan and depending on the findings, further
treatment can be anticipated. In
my opinion the L4/L5
spondylolisthesis is preexisting and she sustained a soft tissue
injury over this, which has resulted in her
having back pain at this
present moment in time.’
[43]
Ms Danielle Stirton, an Occupational Therapist who also assessed the
plaintiff confirmed that
as recorded in her report dated 12 March
2020, the plaintiff advised her that she had stopped working as a
promoter or attending
exhibitions in 2016 and was only attending to
the administration and financial records of her company from home. Ms
Stirton testified
that in 2020, the plaintiff was capable of working
flexible working hours so that she could rest when needed and she had
no difficulty
performing purely sedentary work.  She stated that
the aforesaid duties performed by the plaintiff and her knowledge of
the
business and of the products she promoted, made her essential to
the business. However the plaintiff could train and employ staff
to
perform her responsibilities ‘which will result in increased
expenditure and lower profits, and her ability to grow and
expand her
business may therefore be somewhat limited, which could cause future
loss of earning capacity…. In light of her
apparent mood
disturbance, her motivation to run a business, and ability to do so
effectively as she would have had she had not
been injured, is
however likely to be somewhat undermined.’
[44]
However Ms Stirton was unaware that the plaintiff employed her nephew
and her daughter in the
business and the plaintiff did not disclose
that she was running a tuck-shop. Ms Stirton was of the view that if
the plaintiff
was able to sit, stand and talk to customers at an
exhibition, she had the physical capabilities of running a
tuck-shop.
Ms Stirton confirmed that the plaintiff’s
rating of herself as a cripple was purely subjective, as it was how
she perceives
her pain and disability. The intention was to test
whether the client’s perception of injury and pain is congruent
with the
actual injury. Ms Stirton testified that the plaintiff would
be able to work on a sedentary capacity if she received a knee
replacement
surgery and physio for the back pain, the symptoms would
be alleviated. She pointed out further that as the plaintiff would be
self-employed, she can sit and stand and determine her own working
hours, thereby not exacerbating her condition and avoid further

degeneration of her injuries.
[45]
Under cross-examination, Ms Stirton confirmed that the only problem
that the plaintiff indicated
to her was that she was unable to work
as a promoter because she could not bend or crouch, and had to employ
staff as promoters.
Ms Stirton agreed that even if the plaintiff had
a knee replacement, she would not be able to work as a promoter as
the degeneration
would persist, and early retirement would be
necessary. Ms Stirton confirmed her recommendations in the addendum
to the joint minute
that provision should be made for eight hours of
domestic assistance twice a week at R20 an hour and the listed
assistive devices
(Exhibit “C13 – “C14”). Ms
Stirton also confirmed that:
‘
Following
surgical intervention to the knee and with post-operative
rehabilitation, Mrs Pillay’s pain should reduce and her

physical competencies improve, especially as her back pain can then
be treated more aggressively. Any residual pain present thereafter

will however probably prevent her from ever returning to active
promotional work full time and she will thus require a larger staff

compliment than she would have had had she not been injured.’
[46]
Ms Sonia Hill an Industrial Psychologist confirmed that her report
dated 4 March 2020 was intended
to provide an opinion on the
plaintiff’s vocational potential and her potential loss of
future income. Her report was based
on information given to her by
the plaintiff in person and subsequent information obtained via
emails and telephonic consultations,
and a perusal inter alia of
reports of other experts, bank and annual financial statements for
Indigo Rain CC, income tax returns
submitted to SARS and
reconciliation statements furnished by the plaintiff.
[47]
Ms Hill had calculated from the records provided, that the
plaintiff’s average monthly
salary during the last year she was
employed by Pepper Fish Marketing was R8 250 and not R9 000, and
there were no records to substantiate
any cash payments in addition
to these payments. The plaintiff told Ms Hill she did not have an
office only a warehouse for her
stock and employs three members of
staff:  two promoters who earn R5 000 –  R6 000 each
and a driver who also does
promotional work and receives a total
salary of between R5 000 – R7 000 per month (driving plus
commission). They loaded
the stock and set up the stands because she
no longer attended shows from 2019. Ms Hill did not agree with Ms
Bobat’s calculation
of loss of income, stating that Ms Bobat
had not perused any financials. Ms Hill opined that the employment of
assistance and additional
staff was a business expense or cost of
sales and not a loss of income to the plaintiff.
[48]
Ms Hill noted that there are no shows in January, November and
December and limited shows in
February and June, but there are
deposits for those months. Business bank statements from September
2016 – 15 December 2018
were not provided to Ms Hill with no
explanation tendered. The FNB statements for the period 15 February
2011 –15 September
2016 reflected unexplained ‘batch
deposits. The plaintiff told Ms Hill that the profitability of her
business dropped in
2018 drastically (about 6%) because she was
unable to do shows. The plaintiff did not say anything about a
tuck-shop at her home
until Ms Hill noted deposits into the
plaintiff’s bank account which she queried. The plaintiff then
explained that her niece
who lived with them operated a tuckshop; but
she has since moved out. But Ms Hill also ascertained that the
plaintiff opened the
tuck-shop 20 years ago and after her niece left
the plaintiff and her husband were operating the tuck-shop, which
included purchasing
stock. Ms Hill noted that the plaintiff claimed
personal or home expenses from the business.
[49]
Ms Hill also noted the discrepancies in the annual financial
statements between gross income
and total expenses also the
plaintiff’s monthly salary/ drawings on her tax returns and her
actual monthly drawings transferred
into her personal account. She
declared R63 000 for 2013, R65 000 for 2014, R69 000
for 2015 and for 2016, R50 000
for 2017, R68 000 for 2018
and R75 000 for 2019. This translated to an average monthly
drawings/salary of R5 250 for
2013, R5 417 for 2014, R5 750 for 2015
/2016, R4 167 for 2017, R5 667 for 2018 and R6 250 for 2019.
However actual drawings
transferred into her personal cheque account
was R12 000 per month in 2013 to 2016 and only from March 2016 she
started drawing
R13 000. (Per tables 4,5 and 6 of the report.)
[50]
Under cross-examination Mr
Naidoo
challenged Ms Hill on her
statements that as the plaintiff’s business grew she needed to
employ more staff, and that consequently
the cost of sales must
increase, and that the commission paid to the promoters and payment
to the driver are cost of sales and
do not impact on the plaintiff’s
income.  Ms Hill explained that she did not dispute that the
plaintiff was injured
and that she was ‘slightly’
physically compromised. She also did not dispute that the plaintiff
required staff whether
a promoter or driver to assist her. However
she persisted that the extra staff were required because of the
business needs not
the injury. Ms Hill pointed out that when the
plaintiff commenced her business two years after sustaining the
injury she knew her
limitations and diminished capacity would affect
her income.
[51]
She reiterated that she did not agree with Ms Bobat’s opinion
that the payment of staff
must come off the plaintiff’s income
as it was a business expense. Indigo Rain CC is a registered business
and therefore
staff employed by the business cannot be an expense of
the plaintiff. Ms Hill pointed out that the salaries of the plaintiff
and
the employees are reflected in the annual financial statements
albeit discordant with the calculations. Further the plaintiff is

drawing a higher salary than the salary she has declared. Ms Hill
therefore concluded that this is no loss, just the contingency

because pre and post-morbidity is the same.
Discussion
[52]
Although the defendant had conceded liability as aforesaid, the
plaintiff bore the onus to establish
the quantum of her claims. In
order to discharge this onus, she not only had to testify on the
relevant issues herself and call
witnesses to sustain her claims but
also to place satisfactory documentary corroboration or collateral
for her testimony before
the court, inter alia vouchers, receipts,
bank statements, financial statements, and expert reports.  Mr
Naidoo
stressed repeatedly that there was ‘direct
evidence by the plaintiff herself’ on the contentious issues.
However it
is trite that oral evidence albeit under oath is not
enough to discharge the plaintiff’s onus on a balance of
probabilities
without corroboration. Proven facts are required to
establish a foundation for the assessment of quantum.
[53]
In this case, there was a need for convincing corroboration not only
because of the serious shortcomings
in the plaintiff’s
testimony during the trial but also in the manner in which the
plaintiff conducted her litigation. Although
the particulars of claim
were amended at some stage to provide further details of the damages
claimed, the deficiencies that remained
are an appropriate starting
point, specifically the failure to comply with the provisions of
Uniform rule 18(10) which provides:
‘
(10)
A plaintiff suing for damages shall set them out in such a manner as
will enable the defendant reasonably to assess the quantum
thereof:
Provided that a plaintiff suing for damages for personal injury shall
specify his date of birth, the nature and extent
of the injuries, and
the nature, effects and duration of the disability alleged to give
rise to such damages, and shall as far
as practicable state
separately what amount, if any, is claimed for-
(a)
medical costs and hospital and other
similar expenses and how these costs and expenses are made up;
(b)
pain and suffering, stating whether
temporary or permanent and which injuries caused it;
(c)
disability in respect of-
(i)
the earning of income (stating the earnings
lost to date and how the amount is made up and the estimated future
loss and the nature
of the work the plaintiff will in future be able
to do) ;
(ii)
the enjoyment of amenities of life (giving
particulars) ; and stating whether the disability concerned is
temporary or permanent;
and
(d)
disfigurement, with a full description thereof and
stating whether it is temporary or permanent.’
[54]
Fortunately for this court, the merits in this case had been resolved
prior to the trial. Nevertheless
the failure to comply with rule
18(10) and the failure to furnish corroboration and collateral for
the quantum the plaintiff persisted
with, remain to be deprecated. At
the rule 37(4) conference on 23 September 2020, the plaintiff
furnished an undertaking to provide
the defendant with a schedule and
copies of past hospital and medical expenses substantiated by
invoices by 30 September 2020.
Subsequently the defendant filed a
notice in terms of rule 35(3) requesting details of the plaintiff’s
past hospital and
medical expenses, employee contracts and proof of
payment of their salaries. In response the plaintiff deposed to an
affidavit
on 25 November 2020 stating that she was unable to produce
any documents, hospital tax invoices or vouchers depicting the date
of treatment, the treatment she received, the cost of the treatment,
the name and details of the attending physician and the dates
of her
hospitalisation and the cost thereof. She also admitted that she has
no proof of payment to her staff except for the payments
in the SARS
returns. One is compelled to question how the claims for past medical
expenses and loss of income were in fact computed
when the
particulars of claim were drafted, when at this late stage there was
a clear inability to furnish the documentary evidence
therefor. The
documents eventually delivered are in my view inadequate, and I will
elaborate upon my view in the discussion that
follows.
[55]
I noted further that on 9 November 2020 the defendant filed a notice
of objection to the plaintiff’s
notice in terms of rule 28
dated 28 October 2020 in which the plaintiff intended to amend
details of the quantum in the particulars
of claim. It would appear
therefrom that the defendant did in fact object to the lack of
compliance with rule 18(10). However on
16 November 2020 the matter
was merely adjourned by consent to March 2021 for trial, and the
costs were reserved. However there
was nothing in the court file to
assist me and some of the previous orders issued were not in the
file.
[56]
It will become apparent from the analysis of the evidence which
follows, that the plaintiff’s
case evolved during the trial
because of the lack of particularity in the pleadings, especially
with regard to her claim for loss
of earnings. This loss is regarded
as special damage and has to be specially pleaded and proved
according to the requirements specifically
set out in rule 18(10).
The particulars of claim do not state that the plaintiff claims for a
substitute driver and demonstrator
as an alternative to her claim for
loss of earning capacity, but this is the basis on which her case was
presented in court. In
HAL
obo MML v MEC for Health, Free State
[1]
Wallis
JA expressed his disquiet about the approach of the appellant to the
conduct of the trial, and pointed out the failures of
the draftsman
to comply with the provisions of rule 18, stating:
‘
This
diffuse, unfocussed approach to the conduct of complex litigation is
to be deprecated. If the issues are not properly and clearly
defined
the conduct of the trial cannot be controlled in a properly efficient
manner.’
[2]
[57]
This comment is not only pertinent to the approach of the plaintiff
to the litigation prior to
the trial, but also to the manner in which
documents were handed in by the plaintiff during the trial. When I
requested a list
of only the relevant documents in bundle “E”
which consisted of 370 pages, I was provided with a list of all the
documents
in the bundle although only a few were in fact proved or
referred to in the trial. It would appear that the plaintiff’s
attorney
was either unable to identify the documents relevant to his
client’s case, or unwilling to do so, preferring instead to
burden
the court. This practice of simply burdening the court with
unnecessary and unproven documents is unacceptable and is in my view

disrespectful to the court.
Assessment of the
evidence
[58]
In
Road
Accident Fund v Kerridge
[3]
Nicholls AJA held:
‘
The
role of experts in matters such as these and the opinions they
provide can only be as reliable as the facts on which they rely
for
this information. Too readily, our courts tend to accept the
assumptions and figures provided by expert witnesses in personal

injury matters without demure. The facts upon which the experts rely
can only be determined by the judicial officer concerned.
An expert
cannot usurp the function of the judicial officer who is not
permitted to abdicate this responsibility – the court
should
actively evaluate the evidence.’
[4]
(Footnote omitted.)
In
MV
Pasquale della Gatta; MV Filippo Lembo; Imperial Marine Co v
Deiulemar Compagnia di Navigazione Spa
[5]
Wallis JA held:
‘
[25]
…In a trial action it is fundamental that the opinion of an
expert must be based on facts that are established by the
evidence
and the court assesses the opinions of experts on the basis of
“whether and to what extent their views are founded
on logical
reasoning”. It is for the court and not the witness to
determine whether the judicial standard of proof has been
met. …
[26]
In my view the court must
first consider whether the underlying facts relied on by the witness
have been established on a prima
facie basis. If not then the
expert's opinion is worthless because it is purely hypothetical,
based on facts that cannot be demonstrated
even on a prima facie
basis. It can be disregarded. If the relevant facts are established
on a prima facie basis then the
court must consider whether the
expert's view is one that can reasonably be held on the basis of
those facts. In other words, it
examines the reasoning of the expert
and determines whether it is logical in the light of those facts and
any others that
are undisputed or cannot be disputed. If it
concludes that the opinion is one that can reasonably be held on the
basis of the facts
and the chain of reasoning of the expert the
threshold will be satisfied. This is so even though that is not the
only opinion that
can reasonably be expressed on the basis of those
facts. However, if the opinion is far-fetched and based on unproven
hypotheses
then the onus is not discharged.
’
(Footnote omitted.)
[59]
Accordingly, I move on to an evaluation of the evidence of the three
lay witnesses in order
to
determine the factual basis for the consideration of the expert
evidence. In a recent judgment of
HAL
obo MML v MEC for Health, Free State
[6]
Molemela JA set out the apposite test for the evaluation of a
witness’s testimony.
‘
[90]
…The proper test for evaluating a witness’ testimony is
not whether a witness is truthful or indeed reliable in
all that he
or she says, but whether on a balance of probabilities, the essential
features of the story which he or she tells are
true. Courts engaging
in the analysis of evidence adduced in a trial must be careful not to
fall into the trap of evaluating it
in a piecemeal fashion; rather,
the mosaic of the evidence that was adduced, must be considered as a
whole.
[91]
It is important to bear in mind that the credibility of witnesses and
the probability of what they say should not be regarded
as separate
enquiries to be considered piecemeal, as they are part of a single
investigation into the acceptability or otherwise
of the appellant’s
version. In that investigation, the importance of any discrepancies
or contradictions is assessed. The
story presented by a litigant “is
tested against facts that cannot be disputed and against the inherent
probabilities, so
that, at the end of the day, one can say with
conviction that one version is more probable and should be accepted,
and that therefore,
the other version is false and may be rejected
with safety”.
[92]
In
S v Mkohle,
this Court held that not all contradictions
affect a witness’ credibility. The court cautioned that in each
case, the trier
of fact has to make an evaluation, taking into
account such matters as the nature of the contradictions, their
number and importance
and their bearing on other parts of the
witness’ evidence…’. (Footnotes omitted.)
[60]
While bearing in mind the aforesaid guidelines, it is impossible to
ignore the innumerable material
discrepancies and contradictions in
the plaintiff’s testimony which impacted adversely on her
credibility. It was also impossible
to test her version against facts
when the supporting documentation was either not furnished or not
traversed or proven. Further
no attempt was made to address or obtain
the plaintiff’s responses to her glaring misrepresentations and
omission of information
to some of the experts who interviewed her
during her testimony. Specifically, although the report of Ms Hill
was available when
the plaintiff testified, she was not taken through
the contents by her counsel to respond under oath to the contentious
issues.
There were obvious serious shortcomings in the collateral
provided to Ms Hill. Yet the failure to provide the relevant
documents
was not explained, or the failure to reflect cash deposits
from the promotions and payments in the annual financial statements.

Instead the plaintiff’s testimony on the bank statements,
annual financial
statements
and
reconciliations she relied on to establish the quantum for her loss
of income claim was superficial. I proceed to deal with
the
shortcomings in the plaintiff’s testimony and her case.
[61]
The particulars of claim state that the plaintiff slipped and fell
thereby sustaining serious
injuries to her knee and back. The
plaintiff testified that she fell backwards twice when she attempted
to raise herself up after
she fell on her left knee. She then grasped
a rail and stood up. When asked under cross-examination why the
plaintiff’s sister
who was with her did not assist her when she
fell, the plaintiff responded that her sister did help her get up,
but only after
she had fallen three times. The plaintiff reported to
Dr Yachad on 12 January 2015 that she fell backwards once and to Ms
Reddy
on 8 June 2015 that she fell backwards twice. However the
x-rays ordered by Mr Raghavjee showed no injury to her spine, only a
muscle spasm on either side of the spine in the lumbar region. Dr
Osman also testified that given the height from which the plaintiff

fell backward and even if she fell backwards twice, she could not
have suffered serious injury to her back.
[62]
The plaintiff told Ms Hill that she has a warehouse in
Pietermaritzburg to store her stock, which
she confirmed under
cross-examination. Both her assistants, Mr Govender who has helped
her load and unpack stock from 2011 and
Meril who lives with the
plaintiff testified that there was no warehouse. Mr Govender was very
clear that all the stock for the
exhibitions was kept at the
plaintiff’s house.  The plaintiff’s motive for
giving Ms Hill this information is
unclear, unless she intended to
impress upon Ms Hill the substantial size of her business which would
impact favourably on her
claim for loss of earnings.
[63]
The plaintiff testified that she initially employed only Mr Govender
as driver and promoter in
2011 and in 2016 she employed Meril. All
three of them testified that no one else but the three of them
demonstrated at the shows
and that the plaintiff had never employed
anybody else besides Mr Govender and Meril. Only under re-examination
did the plaintiff
allege that if she had more than one exhibition at
the same time, she would employ casual staff, contradicting her
initial evidence
that she only ever employed two people, and also the
evidence of both Mr Govender and Meril. It was also not put to Mr
Govender
or Meril that the plaintiff employed other casual staff when
she had more than one exhibition.
[64]
The plaintiff however told Ms Hill that she employed three people:
two assistants and a driver.
When cross-examined about the three
employees, the plaintiff stated that she had counted herself as an
employee. However this cannot
be true because according to Ms Hill’s
report the plaintiff told Ms Hill she employs two promoters who earn
R5 000 –
R6 000 each and a driver who also does promotional
work and receives a total salary of between R5 000 – R7
000 per month
(driving plus commission). These three promoters loaded
the vehicle and
set
up the exhibition.
Therefore the plaintiff could not have been referring to herself as
the third employee.
[65]
Further she told Ms Hill that she was not attending shows since
February 2019 but only worked
at home, which is contradictory to her
own admission that she attended every show until 2020. Ms Hill drew
attention to the number
of shows and pointed out that some overlapped
which would have made it impossible for the plaintiff to manage with
one assistant.
The salaries reflected on the annual financial
statements are minimal and there is no correlation between the annual
financial
statements, the reconciliations and the schedule of
salaries and the
oral
evidence nor is there
a proper record of the payments for the driver as claimed by the
plaintiff.
[66]
The plaintiff also omitted information during her interviews with the
experts. She did not disclose
to the experts that Meril who she
employed as a promoter from 2016 was her daughter and lived with her.
She explained that she
did not think it was relevant. However in her
report Ms Hill records that the plaintiff told her that Meril works
in sales for
an events company, Mathiesdah & Sons. Yet when Ms
Hill conducted the interview in March 2020, according to the
plaintiff and
Meril herself, Meril was employed as a promoter by the
plaintiff. This relationship was only discovered when an affidavit
deposed
to by Meril in response
to
the
defendant’s rule 35(3) request for particulars of the
plaintiff’s employees, revealed that her address was the
same
as the plaintiff.
[67]
The plaintiff also did not divulge that she was running a tuck-shop
until Ms Hill picked up deposits
from the plaintiff’s husband
into the business account of Indigo Rain CC. She then told Ms Hill
that her niece used to run
the business but was no longer living with
her and she and her husband were running the business, which meant
buying stock and
operating the tuck-shop daily. This was in 2020. Yet
when asked about the tuck-shop during her testimony in court over a
year later
the plaintiff testified that the tuck-shop was run by her
niece and she merely served customers in the absence of her niece and

husband.  However Ms Hill pointed out that the funds associated
with the tuck-shop were going through the bank account of
Indigo Rain
CC. A reasonable inference to be drawn from the caginess of the
plaintiff about this business being run from her home
and the funds
from it going through her bank account or that of her business, is
that she was in fact the proprietor of the tuck-shop
and involved
fully in its operations, but she wanted to keep her additional income
under wraps as it may impact on her claim in
this matter.
[68]
The plaintiff was also not truthful about her alleged forced early
retirement from actively participating
in the shows.  Although
she confirmed that in 2016 she attended a number of shows and
generated income, she also testified
that her health started
deteriorating in 2016 and she was compelled to hire another promoter.
When Ms Reddy assessed the plaintiff
on 28 September 2016 the
plaintiff informed her that ‘she stopped working 3 months ago
as the pain was affecting her performance
at work and affected her
physically’. However, this was not true because the plaintiff
travelled to exhibitions and demonstrations
in 2016 and continued to
do so until 2020, as confirmed by both Mr Govender and in great
detail by Meril. As already noted the
plaintiff told Ms Hill that she
stopped attending shows from 2019.
[69]
As recorded under social history in Ms Reddy’s report, the
plaintiff informed Ms Reddy
that she:
‘
resides
with her spouse, her daughter, grandson and her niece. Her niece
resides with them to assist the claimant with chores at
home, as the
claimant is limited in her functional abilities. …Mr Pillay
[the spouse] does not work as he is ill…
He collects a
disability grant for approximately 6 years’.
It
is apparent that not only did the plaintiff not divulge to Ms Reddy
that she, her husband and her niece were operating a tuck-shop
at
her
home, she also did not inform Ms Reddy that the promoter she hired in
2016 was her daughter.
[70]
Relying on the information provided by the plaintiff, Ms Reddy
reported under ‘Occupational
History’ that the plaintiff
left her position as promoter with Indigo Rain CC because she was
‘unable to cope’.
Under ‘Reason for Leaving Work’
Ms Reddy recorded that the claimant stopped work from June 2016 as
she is unable to
manage with the pain and fatigue, and is unable to
travel long distances.  Under ‘Financial Impact on the
Business’
Ms Reddy recorded:
‘
The
claimant’s business is still running. Since she is not at the
shows [she did not attend the last 4 shows], she is unable
to push
for sales which increase the profits. In order for business to run
smoothly and effectively for the claimant to reap the
same rewards,
she will need to hire an additional staff member to promote sales.
Currently she asserts that there is no budget
to allow her to hire
another employee. Furthermore, everyone receives a commission for the
products that they sell. The commission
is seen as an additional
income. Now she is unable to earn this additional income. She
estimates this commission to be between
R4000 and R8000 per show.
She asserts that the business income has decreased since she is not
at the shows. She could not
give an amount for this income but has
paperwork to support this.’
It
is therefore apparent that the plaintiff was disingenuous when
assessed by Ms Reddy, who concluded that she cannot return to
work.
The information in this excerpt is contradicted
in
every aspect by the evidence of the plaintiff herself. Even the
estimated commission is not consistent with financial records filed

by the plaintiff and her testimony.
[71]
There are also material anomalies in Ms Bobat’s report, when
compared with the plaintiff’s
evidence. Ms Bobat assessed the
plaintiff on 31 July 2015 and recorded in her report that she
accepted
the information given by the
plaintiff as fact where there was no corroborating evidence. The
plaintiff did not tell Ms Bobat that
her niece who helped with
household chores ran a tuck-shop at her house or that she and her
husband were involved in its operation,
or that funds related to the
tuck-shop were going through her accounts. She told Ms Bobat that she
has a daughter who ‘is
also involved in promotions.’ She
also told her that she had two staff who earn between R5 000 and
R9 000 per month
in commission, which caused Ms Bobat to
calculate an average commission of R7 000. However the evidence
led in the trial was
that she employed Meril in 2016 only and prior
to that Mr Govender was the only other promoter and employee. This
calls to attention
the payment noted by Ms Hill of R15 000 to
Meril in 2015, which was not explained.  Further none of the
financial records
produced by the plaintiff reflect the figures given
by her to Ms Bobat in 2015, which renders Ms Bobat’s
calculations unreliable.
[72]
The plaintiff testified that she had to employ the driver because she
was unable to drive long
distances after her fall. This was not
disputed by the experts. In her particulars of claim there is a bare
allegation that she
suffered and will suffer a loss of earnings in
the future and no indication how the amounts claimed were computed.
However in her
testimony she stated that she computed her loss of
earnings to be R7 000 per month being the R1 000 for the driving and
R6 000
for the commission paid to the driver, which she paid
from her earnings of R20 000. It was apparent that she was relying on
the
computation by Ms Bobat.
[73]
She also testified that she paid the driver R1 000 per trip and for
longer distances R1 500.
However under cross-examination when asked
to clarify whether this payment was per trip or per show, she stated
it was
per show
and that it depended on the distance. When Mr
Maharaj
pointed out to her that in her schedules she also
reflected a payment of R750, she initially responded that she paid
the driver
a standard R1 000 per venue but if the venue was a
distance away she would pay him R1 500. However, she then stated that
there
was no set figure paid to the driver. It could be R500 or R800
if he drove to Durban and she may have forgotten to mention that
she
paid him per venue. Mr Govender too started off with the figure of R1
000 and R1 500 for longer trips, but eventually admitted
he was
sometimes paid R100 per day to drive to Durban, and not per show. Yet
in a letter dated 22 November 2020 annexed to the
affidavit of Mr
Govender the plaintiff stated that he ‘earned
additional
driving fee of R1 000
per trip
.’ However in his
affidavit Mr Govender merely states that he was employed as a driver
and promoter and earned approximately
R6 000 per month which he
was paid in cash.
[74]
To compound her contradictory evidence, when questioned about the
several toll debits on the
same route on the same date on her bank
statement the plaintiff persisted that she only had one permanent
driver and one motor
vehicle for the business. However she eventually
reluctantly stated that the second driver ‘may be’ her
son-in-law
who assisted at times and that she may have paid him about
R100, not as salary but to buy food. The reconciliation statements
which
were relied on by the plaintiff to provide the factual
foundation for her loss of income claim do not sustain the payments
of R1
000 per month in cash that the plaintiff alleges she paid Mr
Govender from 2011. There is either no provision at all for driving

or fluctuating figures such as R200, R1 150 and R2 220 which are not
consistent with the oral evidence tendered in court. There
is no
reason why the payment in cash for driving could not have been
included in the reconciliations prepared by the plaintiff.
I am
satisfied that the amount claimed as past loss of income is nothing
but a ‘thumb-suck’ figure as there could never
have been
a proper computation based on the reconciliations or the annual
financial statements. It is significant that Ms Bobat
did not peruse
the financials provided by the plaintiff but based her calculations
on the unsubstantiated information provided
to her by the plaintiff.
[75]
Ms Hill noted that there are no shows in January, November and
December and limited shows in
February and June, but there are
deposits for those months. This was not challenged or disputed by the
plaintiff. However the plaintiff
presented her claim based on an
average monthly income, and her statements show deposits for those
months. There is no explanation
of the source of the funds if indeed
there were no shows in those months. Business bank statements from 15
September 2016 –
15 December 2018 were not provided to Ms Hill
although they would not have been difficult to access from the bank.
If cash deposits
were made into the Indigo Rain CC bank account from
the tuck-shop as well, it would appear that the plaintiff was
operating these
two businesses together.  Ms Hill testified that
the FNB statements for the period 15 February 2011 – 15
September 2016
reflected unexplained ‘batch deposits’.
The plaintiff told Ms Hill that the profitability of her business
dropped
in 2018 drastically about 6%
because she was unable to do shows. This was clearly not true.
[76]
There are similar problems in respect of the plaintiff’s
evidence that she
always
paid her two employees in cash after
every exhibition, and she had a record of her expenses and a
reconciliation which reflected
the cost of each show, which would
corroborate her loss of earnings. This is not true. There is also no
proper accounting or figures
correlating to her evidence in the
annual financial statements, although the plaintiff also deposed to
an affidavit in which she
stated that ‘Payment to my staff was
often
made in cash which is reflected in the Financial
Statements provided to the South African Revenue Services.’
There
is no explanation why Meril was paid in 2015 when she only
started working for the plaintiff in 2016, as noted by Ms Hill. When

the plaintiff was asked for an explanation for the annual salary to
employees in the sum of R6 530 for 2016, which approximates
to R544
per month, she offered a convoluted, completely illogical and
unsatisfactory explanation, and ended by repeating that she
paid
employees in cash. She dithered about whom the salary of R6 530 was
paid to and eventually stated that the money was paid
to Meril but
she was unable to say if it
was
per month
or per show although from a perusal of the statement it appeared to
be per annum.
[77]
The plaintiff’s evidence was that she had two employees in
2016, Govender and Meril. Yet
the plaintiff reflected R6 530 as
employee’s salary in the tax returns rendered to SARS for that
year, which is completely
at odds with her evidence.  It is also
relevant to note that the plaintiff testified that she was too ill to
work in 2016
and therefore employed Meril. However she also testified
that there were two shows at the same time in Bloemfontein and in
Cape
Town; so she went to one and sent Meril to the other.
Further if she did pay the employees in cash and did not reflect it,

it does not explain why some payment of salary is recorded from
2015-2019, as reflected in Ms Hill’s report in table 7 drawn

from the annual financial statements and in the plaintiff’s
schedule at “E368”.
[78]
There were also serious difficulties in reconciling the plaintiff’s
varying versions about
her own salary. The discrepancies in the
annual financial statements between gross income and total expenses
also the plaintiff’s
monthly salary/ drawings on her tax
returns and her actual monthly drawings transferred into her personal
account have already
been set out in para 49 supra. The plaintiff’s
own uncertainty was evident when she stumbled over her responses to
Mr
Naidoo’s
question about what salary she was drawing
from 2011. She stated it was R13 000 previously but presently it was
about R5 000 –
R6 000 per month. Then she said that it was R20
000 per month. However when Mr
Naidoo
again asked again ‘What
is your salary?’ the plaintiff stated it was R13 000 until the
lockdown. However, according
to the plaintiff’s own evidence,
in February 2020, she attended two exhibitions and in March 2020, one
exhibition. Thereafter
she had no earnings or income because of the
lockdown and no exhibitions were held.  So the source of the
current
salary
of R13 000 or even R5 000 or
R6 000 was not identified or explained.
[79]
The schedule of staff salaries ends in 2019. The plaintiff was unable
to explain the way the
salaries were calculated as reflected on the
schedule although she alleged that the schedule of salaries was
submitted to her accountant.
In the rule 37(4) minute there is an
undertaking to furnish proof of payment of amounts paid to all
employees of the plaintiff’s
business. The schedule and the
annual financial statements do not sustain the oral evidence.
Therefore the plaintiff’s ‘direct
evidence’ does
not cure the deficiencies in her case or her poor credibility.
Her accountant was not called to shed
any light on the financial
records before court. In any event, even an accountant would have
been hard pressed to answer the obvious
problems as there is no need
for any expertise in accounting or forensic accounting skills to note
the obvious miscalculations
and the discrepancies in the figures when
compared with the plaintiff’s testimony.
[80]
As the plaintiff was unable to provide proper reconciliations and
explanations and did not address
the problems identified by Ms Hill,
the cross-examination of Ms Hill on whether the payments claimed by
the plaintiff was reasonable
and whether the salaries should be an
expense against the business or the plaintiff’s personal
drawings, really served only
as a deflection from the plaintiff’s
failure to provide reliable financial records. There is also little
to persuade me that
the plaintiff’s misrepresentations and
omissions were not deliberate, which must undermine her credibility.
I have however
not lost sight of the fact that liability has been
conceded and that there is no dispute that the plaintiff’s fall
and injury
to her knee have relevant sequelae which will impact on
her for the remainder of her life. I also acknowledge that the
plaintiff
displayed exemplary entrepreneurship in founding her own
businesses, the tuck-shop before her injury and the sale of leather
care
products post-morbidity. However this is not the basis on which
her case must be determined, nor can a court determine her case
on
the basis that her claims are reasonable.
The
injury to the plaintiff’s back
[81]
Before proceeding to determine the appropriate award in respect of
the plaintiff’s claims
it is necessary to determine whether the
defendant should be held liable for the alleged injury to the
plaintiff’s back.
The expert witnesses who testified in respect
of this issue are Dr Yachad and Dr Osman. Although there were no
serious disputes
of opinion between them, I remain mindful of the
comments of Wallis JA in
AM
& another v MEC for Health, Western Cape
:
[7]
‘
The
opinions of expert witnesses involve the drawing of inferences from
facts. The inferences must be reasonably capable of being
drawn from
those facts. If they are tenuous, or far-fetched, they cannot form
the foundation for the court to make any finding
of fact.
Furthermore, in any process of reasoning the drawing of inferences
from the facts must be based on admitted or proven
facts and not
matters of speculation.' (Footnote omitted.)
[82]
The
plaintiff
has alleged that she slipped
and fell thereby sustaining serious injuries to her knee and back.
She testified that she sustained
the injury to her back when she fell
backwards while attempting to get up. The only evidence of the nature
of the injury close
to the date of the fall is in the x-rays ordered
by Mr Raghavjee which showed no injury to her spine, only a muscle
spasm on either
side of the spine in the lumbar region. Dr Osman
opined that when she complained of back pain to Dr Mahomed, she
merely had a topical
injury to her back, an inference he drew from Dr
Raghavjee’s report and the fact that Dr Raghavjee only treated
the plaintiff’s
knee four months after the injury and also sent
her for physiotherapy only for her knee. He also only prescribed
anti-inflammatories
and analgesics for the pain she complained of. Dr
Osman also testified that given the height from which the plaintiff
fell backward
and even if she fell backwards twice, she could not
have suffered serious injury to her back.
[83]
The x-rays subsequently examined by both Dr Yachad and Dr Osman also
reveal no serious injury
and they both agreed ‘the L4/L5
spondylolisthesis is pre-existing and she sustained a soft
tissue
injury over this, which has resulted in her having back pain at this
present moment in time.’ Dr Osman testified that all
his
findings were consistent with the spondylolisthesis to the spine of
the plaintiff and that the fall did not progress or cause
the
spondylolisthesis because the nature of her fall on her back was not
severe trauma nor would it have caused anteriorlisthesis,
as
suggested by Mr
Naidoo
. He stated that the back pain that the
plaintiff complained of was secondary and not primary in nature and
that the spondylolisthesis
would become symptomatic at some stage.
However the pain has been aggravated by the fall. Dr Yachad stated
that an MRI scan of
the lower back is indicated which he expected
would find lumbar disc pathology and aid long-term prognosis of the
lower back. However
the plaintiff has not had an MRI scan.
[84]
Mr
Naidoo
postulated that the fall on her back caused the
asymptomatic spondylolisthesis of the plaintiff to become
symptomatic. Firstly,
this is a concession that the plaintiff did not
sustain severe or serious injury to her back as alleged. Secondly,
there is no
evidence to sustain Mr
Naidoo’s
argument,
and Dr Osman’s was emphatic that the fall did not progress the
spondylolisthesis. Although the plaintiff may suffer
back pain due to
various causes including the pathology to her knee, I am satisfied
that the plaintiff has failed to prove on a
balance of probabilities
that she sustained a serious injury to her back when she fell in the
defendant’s supermarket. This
conclusion is relevant to the
determination of her claims for future medical expenses and general
damages.
Past
medical expenses
[85]
I have already referred to the failure of the plaintiff to provide
documents, vouchers or tax
invoices to prove her past medical
expenses, and the consequent questionable computation of her claim
for such expenses. As the
event occurred on 31 December 2009 and
summons was issued in 2012, there appears to be no cogent reason why
the plaintiff did not
make
the
necessary
request to the medical aid timeously or retain the documentation in
her possession. Instead she relies on a reconstruction
of the claimed
amounts from medical aid schedules and ‘consulting with Medical
Practitioners’.
[86]
Mr
Naidoo
described this claim as the least contentious and
submitted that the court should
accept
the
plaintiff’s schedule as proof of her claim. Mr
Maharaj
on the other hand submitted that the plaintiff had failed to prove
the claim.  He pointed out that the plaintiff’s schedule

and the documentation she relied on were grossly inadequate as there
was no indication as to the nature of treatment and/or medication

that was administered and whether in fact it related to the
plaintiff’s alleged injury. Therefore there is no correlation

between the payment allegedly made by the medical aid and the
treatment which pertains to the injury sustained by the plaintiff
in
the fall. Mr
Maharaj
also contended that the amount claimed in
respect of past medical expenses or the payment thereof has not been
confirmed by the
Chief Operational Officer of the Medical Aid Scheme,
which confirmation could have been obtained.
[87]
There is merit in Mr
Maharaj’s
contentions. Further an
interrogation of the schedule reveals several amounts which do not
correlate with the plaintiff’s
evidence or the bases for her
schedule. The plaintiff testified that she was treated by Dr Mahomed
four days after the fall with
anti-inflammatories for her knee and
back pain. On 3 March 2010, she found herself incapacitated. Dr
Mahomed referred her to Dr
Raghavjee who operated on her
the
same day. She was also treated subsequently by Dr Mahomed for her
backache and knee.
[88]
The plaintiff relied on a handwritten schedule from Dr Mahomed dated
3 October 2020 for proof
of treatment by him for consultations in
connection with treatment for her knee and back from 2010 (“A118”).
Dr Mahomed’s
schedule does in fact only show that he treated
her on 4 January 2010 for lower backache and knee and thereafter for
backache only
on 22 February 2010 and 8 March 2010. This is
consistent with her testimony, although she did not testify that she
consulted Dr
Mahomed again before 8 March 2010. However on her
schedule she claims for medical expenses for consultations with Dr
Mahomed on
4, 14, 15, 28 January 2010 and 3 February 2010, some of
which according to the medical aid schedule were not paid because
they
were duplicate claims, and the claims are not included in Dr
Mahomed’s schedule.
[89]
Further, although she did not testify that she had physiotherapy
until Mr Raghavjee referred
her to a physiotherapist for her knee,
the plaintiff’s schedule reflects claims for Mr Gopal in
January and February 2010.
However Dr Mahomed’s letter dated 20
March 2010 states that he consulted with the plaintiff on 4 January
2010, and thereafter
referred her to Mr Raghavjee and physiotherapist
J Gopal. There is no explanation from the plaintiff or Mr Gopal why
he has not
furnished a schedule of relevant treatments and fees.
Therefore despite the plaintiff’s testimony that the
physiotherapist
has treated her back and knee, I am unable to find
that she has proved all the claims on her schedule for physiotherapy.
The plaintiff
has provided one statement from Midlands Medical Centre
which reflects a subtotal of R13 737.96 but she has also included the
individual
amounts as separate claims
although
they are all included in the subtotal. She has effectively duplicated
the claim.
[90]
It is apparent from these obvious ‘errors’ that her legal
representatives have not
perused the schedule before filing it and
amending the particulars of claim in accordance with the schedule. It
is also inconceivable
that the court should be urged to accept the
defective and unsubstantiated schedule in its entirety as proper
proof of past medical
expenses.
Undoubtedly
,
the plaintiff’s evidence and her schedule of past medical
expenses must also be treated with much circumspection.
[91]
Consequently, as it is common cause that the plaintiff was treated by
Dr Mahomed four days after
the fall and by Mr Raghavjee on 3 March
2010, and that she had an operation on her knee on the same day I
have only considered
those claims. I have noted the dates of further
consultations in Mr Raghavjee’s letter dated 21 April 2010 but
there are
no payments of claims on all those dates. I have also
considered the claims based on the statement from Midlands Medical
Centre
for 3 March 2010 and noted that the procedure was orthopaedic
surgery and Mr Raghavjee and Dr M Essack were the doctor and
anaesthetist
respectively. Subsequent claims for treatment by Dr
Mahomed according to his schedule have been considered. Claims by the
physiotherapist
have been considered only immediately after the
referral by Dr Mahomed and Mr Raghavjee at the beginning of 2010,
although there
is no letter of confirmation by Mr Gopal and therefore
the treatment and reason for the treatment remain unproven. I have
then
compared those claims with the medical aid schedule and only
accepted claims as legitimate expenses if there is a correlation.
[92]
Past medical expenses:
Dr
NS Mahomed
4
January
2010

226
22
February 2010

226
8
March
2010

226
27
January
2015

320
9
June
2016

333
21
July
2016

333
5
December
2017

354
22
January
2018

374
22
May
2018

377
27
November
2019

374
16
September
2020

417
Subtotal
3 560
Mr
Raghavjee
(per his letter dated 21 April 2010)
3
March 2010

915
503.70
604.43
75.50
Subtotal
2 098.63
Midlands
Medical Centre
3
March
2010
13 737.96
Mr
Essack
3
March
2010

216.88
188.76
1372.42
Subtotal
1 778.06
Jitesh
Gopal (physiotherapist)
1
February
2010

128
47.75
31.85
Subtotal
207.60
Total
R21 382.25
Future
medical expenses
[93]
The plaintiff claims the sum of R985 230 for future medical
expenses. Mr
Naidoo
pointed out that as per their joint
minute, the occupational therapists have agreed to the assistive
devices as well as domestic
assistance. The actuarial computation
based on their list is the sum of R327 840 (“A101”).
The actuarial computation
for future medical expenses based on the
reports Dr Yachad and Ms Reddy is R657 390 (“A90”).
Mr
Naidoo
submitted that the plaintiff should not be penalized
for refusing to have a knee replacement. He submitted that an
appropriate
contingency deduction to be applied is 20%, resulting in
the sum of R525 912. According to these calculations the award
for
future medical expenses should be in the sum of R853 752.
Mr
Maharaj
submitted that although Dr Osman suggested a total
knee replacement, the plaintiff indicated that the cost thereof can
be deleted
as she would not undergo such surgery. He drew attention
to the divergence in opinion between Dr Yachad and Dr Osman as to the
future medical costs.
[94]
There is no dispute in respect of the recommendation by the
occupational therapists as
far
as the domestic
assistance and assistive devices are concerned and no alternative
computation has been offered by the defendant.
Consequently an award
for the actuarial computation of R327 840 is appropriate. In
respect of the future medical expenses
he estimated in clause 16 of
Exhibit “A18”,
Dr Yachad stated that there
was no time limit for the medication because the plaintiff may
require medication even after a successful
knee operation. He
admitted that the three monthly visits for the first year and the
review by the orthopaedic surgeon, per clause
16.10 would depend on
the healing of the individual patient. He was of the view that the
plaintiff would require the left knee
joint MRI and left knee
athroscope, debridement, meniscal repair or meniscectomy, especially
if she does not have the knee replacement
which she could not be
forced to consent to. He had not recommended a knee replacement
because at the time when he assessed the
plaintiff he did not find it
appropriate.
[95]
When Dr Osman was referred to Dr Yachad’s report and the
actuarial calculation based on
that report at “A90”, he
opined that medical expenses at R1 500 per month for analgesics
and anti-inflammatories
was excessive, and suggested a figure of R150
per month which he substantiated by reference to specific appropriate
medicines.
He was also of the view that three visits to the
orthopaedic surgeon in one year was excessive. He opined that the
plaintiff should
see an orthopaedic as the need arose only, and one
visit per annum would be sufficient. Dr Osman pointed out that as Dr
Yachad
saw the plaintiff about five years before Dr Osman, his
recommendations preceded Dr Osman’s recommendation that the
plaintiff
has a knee replacement.  He opined that an MRI of the
left knee was not necessary and the plaintiff will not need the left

knee arthroscope, debridement meniscal repair or meniscectomy if she
were to have the knee replacement. It was significant that
the
meniscectomy under anaesthetic would not give the plaintiff any
permanent or prolonged relief. An alternative to the knee replacement

would be to give the patient a wedge for the heel to correct her
alignment which would cost between R350 - R500 and a hinge knee
brace
which would cost about R1 500. With that intervention the need for
excessive
analgesia would be significantly
reduced and cause fewer renal and other complications for the
patient.
[96]
Dr Osman stated that physiotherapy will not help the knee and
recommended topical treatment such
as applying heat or cold or a
topical medication such as Voltaren. She may benefit from
physiotherapy for back pain. He testified
further that the MRI of the
lumbar spine, the epidural anaesthesia and neurologist consultation
related to the spondylolisthesis
and not injury to the lumbar spine,
and would not be necessary, and did not form part of the injury that
was sustained by the plaintiff
during the fall. Dr Osman agreed that
the plaintiff would benefit from a consultation with a biokineticist
and recommended that
she also consult a dietician because excessive
weight would put pressure on the injured knee.
[97]
Having considered the complete refusal of the plaintiff to have a
knee replacement and her evidence
that she did not authorise the
claim therefor and the alternative suggested by Dr Osman, I am of the
view that the future medical
expenses should be re-computed by an
actuary in respect of the following interventions/ treatments:
(a)
medication -  R200 per month
(b)
orthopedic surgeon – 1 consultation
per annum
(c)
wedge for the heel
(d)
knee brace
(e)
evaluation by a biokineticist
(f)
evaluation and diet plan by a dietitian
It
is to be assumed that the plaintiff’s life expectancy remains
unaffected.
The contingency of 20% suggested on behalf of the
plaintiff is to be applied.
Loss of earnings
[98]
This claim constituted the major dispute between the parties. Mr
Naidoo
submitted that the joint minutes by the experts are
instructive:
(a)
The orthopaedic surgeons confirm that the plaintiff’s ability
to
stand and work is affected by the left knee pain.
(b)
The occupational therapists confirm that she would require a driver
and
that she will unable to return to work as a promoter.
Additionally, they both noted a decrease in profits as more staff was
hired.
(c)
The industrial psychologists both confirm that the plaintiff worked
albeit at a reduced
capacity and Ms Bobat notes that she now employs
more staff to assist her than she would have had the incident not
occurred. It
is not disputed that her loss pertains to the additional
staff that she employees, viz a driver and a promoter.
[99]
In regard to the loss of earnings and the evidence of Ms Hill, Mr
Naidoo
submitted that the plaintiff
relies
on the majority decision in the case of
Bee
v Road Accident Fund.
[8]
As in the present case, the appellant worked for Bee Painters &
Waterproofing CC (BPW) and he held a 50% member's interest
in the
close corporation with his brother Mr Russ Bee. The evidence was that
the work previously conducted by the plaintiff was
taken over by his
nephew and that he earned a salary of R25 000 per month. In
distinguishing the case of
Rudman
v The Road Accident Fund
[9]
the majority held that this was an appropriate case in which to
assess the appellant's loss of income with reference to the financial

affairs of BPW. In
Rudman,
the court concluded that he had not suffered a patrimonial loss and
the appeal court agreed with the factual analysis. In paragraph
82 of
the
Bee
judgment, the following is recorded:
‘
In
the present case, by contrast, the very facts agreed by the experts
established that the appellant had suffered a loss and that
such loss
was directly related to the impaired performance of BPW. Whether that
was so was a factual question, not a legal one.
The experts agreed on
the facts. They differed on three aspects affecting the
quantification, not the existence, of the appellant's
loss’
.
[100]
Mr
Naidoo
also pointed out that whilst in
Rudman
the
plaintiff’s function was that of the Chief Executive Officer
which he still performed and remained a driving force behind
the
company, the present case is distinguishable in that the plaintiff’s
injuries precluded her from continuing in her function
as a promoter.
The concomitant loss (as per the judgment in
Bee
), even though
a loss to the close corporation, is a loss which the plaintiff
suffers. Accordingly, and even though the loss was
that of the close
corporation, it equated ultimately to a loss for the plaintiff. The
judgment proposed and applied a 25% contingency
deduction for future
loss of earnings. Mr
Naidoo
pointed out further that as
already indicated by Ms Hill in her evidence, the loss is that of the
close corporation. He submitted
that the following paragraph is
therefore instructive in determining whether the loss equates to a
loss
suffered by the plaintiff:
‘
[95]
There was thus ample evidence, quite apart from the forensic
accountants' joint minute, that the appellant's reduced abilities
had
negatively affected BPW's operations. Because he had a 50% membership
of BPW, and because he had his brother shared BPW'S net
profits
(whether by way of salary or distributions), a decrease in BPW's net
profits translates into a loss of income for the appellant.’
Mr
Naidoo
accordingly
argued that the
loss of earnings of the close corporation is a loss suffered by the
plaintiff in respect of the amount for the
costs of a promoter and
driver.
[101]
While Mr
Naidoo
submitted
that the plaintiff’s
evidence was reliable, Mr
Maharaj
contended that the plaintiff’s
evidence on the facts relevant to loss of earnings was far from
satisfactory. He pointed out
the inconsistencies in the plaintiff’s
evidence about her employment of Mr Govender and Meril and the
evidence of the employees
themselves. According to Meril the shows
took place between February to October only.  He pointed out
that the testimony in
court was not sustained by the documents the
plaintiff relied on and she was unable to answer questions on the
financial statements
including the turnover, the salaries reflected
on the schedule and whether it was per month or per annum. He also
pointed out that
the salary reflected on the statements is a far cry
from the plaintiff’s testimony but she claimed to be confused
and did
not answer the relevant questions. She also did not make full
disclosure to the experts. Mr
Maharaj
pointed out that the plaintiff admitted
that she employed extra staff ‘not just because of the injury
but because business
was growing’,
and she conceded that if she had two exhibitions which clashed she
had to
employ
casual staff, and she and
Meril ran each of the exhibitions.
[102]
Mr
Maharaj
acknowledged
that
the cost of substituted labour, in this case a driver and a promoter,
may in principle be awarded. He referred to
President
Insurance Co Ltd v Matthews
[10]
in
which Smalberger JA said:-
‘
There
is no reason in principle why, in an appropriate case, the cost of
employing a substitute should not form the basis of a claim
for
damages arising from a plaintiff’s inability to carry on his
pre-collision trade or profession.’
[11]
Mr
Maharaj
submitted further that the cost of employing an additional promoter
is however not limited to
measuring
the
decrease in the plaintiff’s future earning capacity. He
contended that a distinction must be drawn between the decrease
in
the plaintiff’s future earning capacity and the increase of the
volume of her turnover. The increase in her turnover would
always
have required the employment of additional personnel. The plaintiff’s
evidence is that she was always present at the
shows and she had to
employ additional people to cope with the increase in the workload
and when shows clashed.
[103]
Mr
Maharaj
relied on
Rudman
as
authority for his contention. The appellant appealed against the
dismissal of his claim for past loss of earnings and loss of
earning
capacity by the Provincial Division on the ground that, although the
appellant had proved disabilities
which
,
potentially at any rate, could give rise to a reduction in his
earning capacity, he had failed to prove that this had resulted
in
patrimonial loss since the loss of earnings and earning capacity he
had suffered was a loss to the company and not to his private
estate.
The court held that his future loss could in these circumstances be
quantified by the cost of employing substitute labour
to do the work
which the appellant would have done had he not been injured. It went
on to hold that the court a quo correctly emphasised
that where a
person’s earning capacity was compromised:
[12]
‘”
That
incapacity constitutes a loss,
if such
loss diminishes his
estate” and
“he is entitled to be compensated
to
the extent that his patrimony has been diminished
.”
[104]
The court found that the view of the court a quo that the evidence
did not establish that the appellant’s
diminished earning
capacity had resulted in a diminution of his estate was also correct.
It held that it was therefore fallacious
to assume that the appellant
had suffered a loss once he had proved that the physical disabilities
brought about a reduction in
his earning
capacity
and
thereafter all that remained was to quantify the loss. This
assumption could
not
be
made since a physical disability that impacted on his earning
capacity did not necessarily reduce the estate or the patrimony
of
the injured person; there had to be proof that the reduction in
earning capacity indeed gave rise to pecuniary loss, in this
instant
case such proof was absent.
[13]
The
Court therefore concluded that the appellant had failed to discharge
the onus of proving that he had suffered a diminution in
the value of
his patrimony.
[105]
Mr
Maharaj
argued further that it is well established in our law that “The
capacity to earn money is considered to be part of a person’s

estate and the loss or impairment of that capacity constitutes a
loss, if such loss diminishes the estate.”
[14]
He
contended that as both Mr Govender and Meril testified that they were
employed and paid by Indigo Rain CC, the additional expense
of
substituted labour for the two employees was borne by Indigo Rain CC
and not the plaintiff. Mr
Maharaj
contended further that the plaintiff has not demonstrated that these
payments reduced the income and/or profits of Indigo Rain
CC and that
such reduction of income filtered down to her, in that she received a
reduced and/or lower member’s dividend.
He pointed out that
there has been no accounting carried out in respect of the plaintiff
or of the books of Indigo Rain CC to demonstrate
that these payments
resulted in lower income being available to the plaintiff or that she
has suffered a loss of income. Mr
Maharaj
submitted in conclusion that the plaintiff’s business does not
show a decline. The plaintiff did not indicate that she has
reduced
the number of shows she attends. He pointed out that the plaintiff’s
turnover had in fact increased and there was
no drop in sales or in
the income. He submitted that in the alternative, the plaintiff’s
business
expanded
to such an extent that she would not have been able to cope
singlehandedly and would have been compelled to employ people.
Legal
principles
[106]
As stated earlier in this judgment, loss of earnings is a special
damage and has to be specially pleaded and proved
in accordance with
the provisions of rule 18(10) which requires a plaintiff to provide
information on the earnings lost up to date
and how the amount is
made up. It is therefore trite that a claimant must adduce sufficient
evidence to enable the court to assess
the loss.
[107]
The following excerpts from texts set out the principles pertinent to
a determination of a claim for loss of earnings:
Loss
of past income or earnings (from date of delict to date of trial)
‘
Past
loss of earnings is a matter of proof. A self-employed plaintiff may
recover for such dimunition in the income from his business
or
profession as can be fairly be attributed to his inability , as a
result of his injuries, to attend properly to his affairs.’
[15]
‘
Where
as a result of his or her injuries a person has been precluded from
earning  income or has earned less income than normal,
he or she
is entitled to damages representing the income the injured person
would have earned but for his or her incapacity. It
is incumbent upon
the plaintiff
to
prove what his or her income would have been had the person not been
injured and what his or her actual earnings were for the
duration of
the injuries (if applicable).
A
claim for loss of earnings exists irrespective of whether a plaintiff
is in someone else’s employ or is self-employed. In
the latter
case, it may be more difficult to assess the plaintiff’s loss
than in the former... Damages may also be assessed
as being the
reasonable cost of employing a substitute for the plaintiff.’
[16]
Loss
of earning capacity (prospective income, future earnings after date
of action)
‘
...
in
Rudman
v
Road Accident Fund
the Supreme Court of Appeal clearly stated that a physical disability
which impacts upon capacity to earn does not necessarily
reduce the
estate or patrimony of the injured person. There must be proof that
the reduction in earning capacity indeed gives rise
to pecuniary
loss.’
[17]
‘
In
order to recover loss of earnings, the claimant must be able to prove
that he would have earned such income but for his or her
bodily
injury. Where income is indirectly earned through the medium of a
company or trust, evidence of loss to this company and
ultimately to
the claimant is required to establish loss of income.
[18]
‘
In
the event of the earning capacity of a claimant being affected to the
extent that the claimant is no longer capable of effectively
doing
the work he was able to do prior to his or her injury, the salary of
a substitute or manager to do such work is admissible.
Such costs
will represent the claimant’s loss of earning capacity and is
an alternative to a claim for loss of earning capacity.
Whether the
salary of a substitute or manager is recoverable depends on the facts
and circumstances of each case.
In
order for a claim for a substitute ...as an alternative to a claim
for loss of earning capacity to be enforceable, the following

requirements must be met:
·
there must be no possibility of the claimant
being in a position to ...conduct another business; alternatively the
circumstances
and facts must be such that it would be unreasonable to
insist that the claimant obtain alternative employment or conduct an
alternative
business;
·
the cost of employing a substitute ... must not
exceed the losses expected without the employment of a substitute …
and must
be reasonably be required to best preserve the claimant’s
capital assets and to ensure maximum profitability; and
·
the cost of a substitute ... will only be
recoverable if the claimant can show that prior to his or her injury,
his or her business...was
a viable business...
Calculation
The
amount of loss is based on an actuarial calculation and is the future
value, at the time of the trial, of the cost of employing
a manager
or substitute at the reasonable rate determined by evidence.
’
[19]
Discussion
[108]
I am in agreement with Mr
Naidoo
that
the joint minutes of the experts are instructive. In the joint
minutes prepared by Dr Osman and Dr Yachad, the experts agreed
that:
‘
Her
knee disability is congruent with the outcome of the post-surgical
treatment. Her ability to stand at work would be affected
by the left
knee pain which will improve following successful Total Knee
Replacement.
Over
the last 3 years, there has been at least a 25% to 50% decrease in
her ability to stand and sell her products.
A
successful Total Knee Replacement will improve her ability to stand
at work.’
Similarly,
the occupational therapists and the industrial psychologists agree
that the plaintiff’s ability to work has been
compromised as a
result of the injury to her knee. Ms Reddy and Ms Stirton have set
out in detail the adverse physical sequelae
suffered by the plaintiff
which will militate against her ‘returning to work as a
promoter.’
[109]   However
while the joint minutes set out the congruency of opinions of the
experts, such opinions must be carefully
considered and not accepted
unquestioningly by the court, especially as the opinions are based on
the information supplied by the
plaintiff. As stated by Wessels JA in
Coopers
(South Africa) (Pty) Ltd v Deutsche Gesellschaft für
Schädlingsbekämpfung MBH
[20]
with regard to the nature of an expert’s opinion:
‘
.
. . an expert's opinion represents his reasoned conclusion based on
certain facts
or
data
,
which are either common cause, or established by his own evidence or
that of some other competent witness. Except possibly where
it is not
controverted, an expert's bald statement of his opinion is not of any
real assistance. Proper evaluation of the opinion
can only be
undertaken if the process of reasoning which led to the conclusion,
including the premises from which the reasoning
proceeds, are
disclosed by the expert’.
[21]
A
court has to ascertain whether the opinions expressed by the experts
are based upon facts proved by way of admissible evidence.
“An
opinion based on facts not in evidence has no value for the
Court.’’
[22]
Similarly
in
Bee v
Road Accident Fund
[23]
the court held that :
‘
[22] It is trite
that an expert witness is required to assist the court and not to
usurp the function of the court. Expert witnesses
are required to lay
a factual basis for their conclusions and explain their reasoning to
the court. The court must satisfy itself
as to the correctness of the
expert’s reasoning…
[23] The facts on which
the expert witness expresses an opinion must be capable of being
reconciled with all other evidence in the
case. For an opinion to be
underpinned by proper reasoning, it must be based on correct facts.
Incorrect facts militate against
proper reasoning and the correct
analysis of the facts is paramount for proper reasoning, failing
which the court will not be able
to properly assess the cogency of
that opinion. An expert opinion which lacks proper reasoning is not
helpful to the court…’.
[110]
In this case, the basic facts given to the experts were correct: the
plaintiff fell on and injured her left knee
which required surgery
and medication, and which has and will impact on her ability to drive
long distances and to work as a demonstrator.
However, as the
analysis of the evidence has shown, the information given by the
plaintiff to the experts in relation to her work,
employees and loss
of earnings was neither consistent or reliable or based on fact. Mr
Maharaj
has also drawn attention to the lack of credibility
and deficiencies in the plaintiff’s evidence. One example of an
unfounded
and unsustainable conclusion by the experts in their joint
minute, is that Ms Reddy and Ms Stirton noted an increase in expenses

and a decrease in profits as more staff was hired. Yet it is clear
that they could not have based this conclusion on a proper
interrogation of the annual financial statements or bank statements
furnished by the plaintiff. Ms Hill pointed out that she would
not
make such a statement which was not borne out by admissible evidence.
Another example is their conclusion that the plaintiff
‘could
not return to work’ which arose from the plaintiff’s
untrue advices that she was no longer working as
a promoter or
attending shows since 2016.
[111]   Ms
Reddy testified that in her second report she estimated an earlier
retirement age of eight to ten years because
the plaintiff told her
that she had left work. She confirmed that she was not aware that the
plaintiff in fact had been working
in 2016 when she was assessed and
continued to work thereafter until 2020, or that she operates a
tuck-shop. Ms Reddy did not disagree
with Ms Hill’s assessment
and observation of the plaintiff and agreed that if the plaintiff had
to work on a phone or computer,
she could continue to work and earn a
living. She also agreed that while the plaintiff may not be able to
work as a promoter, she
could work half a day, and if she had a knee
replacement, she would be functional and able to cope better and to
work. Ms Reddy
also confirmed that if the plaintiff had two
assistants and a driver, she would be able to continue working in a
supervisory capacity.
Ms Stirton also based some aspects of her
opinion on fallacious information. Her view was that the plaintiff’s
‘current
vocation’ as a business manager was appropriate
and reasonable as she was able to work flexible hours and rest as
required.
[112]
There
is a similar difficulty with accepting the evidence of Ms Bobat.
While Ms Hill and Ms Bobat agreed that the plaintiff was physically

compromised and would not be able to continue working as a promoter,
Ms Bobat did not even consider any financial statements when

formulating her opinion on the plaintiff’s loss of income.
Further her calculation
[24]
was on the basis that the plaintiff employed a driver who was paid R1
000 per month and two staff who earn between R5 000
and R9 000
a month while the plaintiff earns R12 000 a month in commission.
The evidence before this court is that the
plaintiff paid the driver
varying amounts per trip, she employed the driver only as a promoter
until 2016 and she allegedly earned
R13 000 per month, although
she declared a lower figure to SARS. Therefore Ms Bobat’s
calculation of the loss constituted
by payment to the driver and the
average commission paid to the promoters, was based on incorrect and
unproven information and
figures given to her by the plaintiff. Ms
Bobat also did not factor into her calculation the fact that the
plaintiff had an assistant
even pre-morbid, which she conceded was
relevant. Therefore while it may be that the plaintiff’s loss
pertains to the additional
staff that she employs, Ms Bobat’s
calculations find no favour with me, as does the plaintiff’s
reliance thereon. Consequently
the actuarial calculations based on Ms
Bobat’s report are also unacceptable.
[113]
This appears to be an appropriate stage to consider the cases of
Rudman
and
Bee
that counsel have relied on. In
Rudman
the Supreme Court of Appeal pointed out that:
‘
[12]
…The argument on Rudman’s behalf in the Court below,
particularly with regard to the claim for past loss of earnings,
was
that he is the person who felt the pinch because there was less money
coming in to the company. He is the person who in fact
suffered the
loss incurred by the company. He is the person who should be
compensated. The counter-argument, which was accepted
by the learned
trial Judge, is that this ignores entirely that the company is a
separate legal entity with its own personality
and its own estate,
which is distinct and separate from Rudman’s estate.’
The
engagement between Mr
Naidoo
and Ms Hill during cross-examination followed the same argument.
However on appeal, counsel for Mr Rudman did not persist with
this
argument and submitted instead ‘that in the circumstances of
this case it is appropriate to use the loss to the company
as a
method of placing a monetary value on Rudman’s personal
loss’.
[25]
Mr Naidoo in relying on
Bee
in his
argument has adopted a similar stance.
He
referred to the distinction drawn by the court between facts in
Rudman
and those in
Bee,
specifically that in
Bee
‘the very facts agreed by the experts established that the
appellant had suffered a loss and that such loss was directly
related
to the impaired performance of BPW’.
[26]
The conclusion in
Bee
was
based on facts.
In
Rudman
the
court stated that ‘
an
award cannot be based upon speculation. It must have an evidential
foundation’.
[27]
What facts are there in this matter that this court may rely on?
Although Mr
Naidoo
effectively acceded to the opinion expressed by Ms Hill, which is
consistent with the judgment in
Bee
,
he has not taken his argument to the necessary conclusion. Where is
the proof that the plaintiff had suffered a loss which is
directly
related to the impaired performance of Indigo Rain CC? Indeed, where
is the proof of the impaired performance of Indigo
Rain CC?
[114]
Therefore, while it is accepted that the plaintiff required a driver
because she was unable to drive long distances
as a result of the
injury to her knee,
[28]
the plaintiff has not provided reliable facts and figures which
establish the quantum of the loss suffered by Indigo Rain CC or
her
through the employment of the driver. Mr
Maharaj
has in
his heads of argument detailed the shortcomings in the plaintiff’s
evidence, with which I am in agreement. Similarly
her claim for loss
suffered by the employment of an additional assistant must be
qualified by the fact that the plaintiff always
had an assistant even
when employed as a promoter. When she commenced her own business
while already suffering the adverse sequela
of her fall, she
continued to work as she did previously, with one assistant who
helped her set up the stand and also did demonstrations.
The
plaintiff’s own evidence is that she employed Meril in 2016 as
an additional promoter not only because she was having
difficulties
associated with her inability to crouch or to stand for long periods
of time, but also because her business was growing
and there were
occasions when there were two shows running concurrently. However
there is no proper record of what Meril was paid,
and the evidence of
the plaintiff and Meril is inconsistent as to what she earned, even
taking into consideration that the payment
was commission based. The
15 reconciliations for the 2016 shows reflect various amounts ranging
from R2 250 to R10 700, but there
is no indication as to exactly what
commission was paid to Meril and which shows she actually attended.
Further there is
no correlation between their evidence and the
salaries paid to staff reflected on “E368”’.
[115]
In
Sandler
v Wholesale Coal Suppliers Ltd
[29]
the appellant was the proprietor and personally involved in the
operation of a garage business. He was absent from his business
for
four months after sustaining bodily injuries, during which time his
manager ran the garage. On the question of whether the
appellant had
proved his loss, the court held:
‘
When
the owner of a business of this nature, who works in it in the way in
which the appellant worked, is confined to hospital for
four months
and enable to do the work which he previously did, the business as a
profit-earning concern must necessarily suffer.
It seems reasonable
to assume that the appellant's skill and energy and his activities in
the affairs of the business were a source
of some profit to the
business. These were taken away and nothing put in their Place. It is
also not unreasonable to assume that
the personal presence of the
owner of the business is a factor in keeping up the efficiency of his
employees and of the services
rendered to the public, and so
attracting customers
.’
[30]
[116]
In this case the plaintiff was not absent from her business even
after Meril was employed. She continued working
in the business and
promoting her products at shows until 2020 when the Covid pandemic
put an end to the shows There was therefore
no decline in her
business due to her absence or a reduction in the goodwill of Indigo
Rain CC. In
Rudman
, the court noted that while there was
evidence which proved that, because of Rudman’s injuries, the
company lost income and
incurred additional expenses of employing
others to perform the work that Rudman used to do, there was no proof
that these facts
resulted in loss to Rudman eg there was no evidence
that he received reduced fees or drawings from the company because of
the company’s
reduced income. The court based this conclusion
on the fact that the financial statements of Rudman and his company
and the family
trust’s financial statements for four years as
well as the evidence of Rudman and his accountant did not show any
loss to
Rudman.
[117]
In this case, while there is some proof that Indigo Rain CC paid for
a substitute driver for the plaintiff and
an additional demonstrator
from 2016, there is no proof that this resulted in a loss to the
plaintiff, because on her own version,
she consistently drew R12 000
per month and then an increased amount of R13 000 monthly. Nor do the
annual financial statements
shed any light on this issue.  I am
mindful that a court should come to the assistance of a litigant who
does not have proper
records but has proved a loss in earnings, but
the plaintiff is not an informal trader. She conducts her business
through a registered
close corporation, employs an accountant and
submits tax returns to SARS. However on the evidence, although Meril
was employed
in 2016, she was not the substitute for the plaintiff
because the plaintiff continued to attend shows and to demonstrate on
items
other than shoes, and both attended different shows which
occurred at the same time. The plaintiff also admitted that she
required
additional staff because of the growth in her business.
Further there is no proof as to what Meril actually earned in
commission
although as submitted by Mr
Naidoo
, ‘the
plaintiff only sought loss based on the employment of an assistant as
a promoter with the concomitant loss of R7 000-00
per month’.
In the premises, I am unable to determine the past loss of income
insofar as it relates to the employment
of an additional assistant
and decline to make an award for this component of her past loss of
earnings claim.
[118]
In respect of the claim for the expenses of the driver, I have
similar very strong reservations given the paucity
of reliable
evidence. However I am mindful of the following comments of the
Supreme Court of Appeal in
Road
Accident Fund v Kerridge
:
[31]
‘
Calculation of
past and future loss of income earning capacity
[25] Indeed, a physical
disability which impacts on the capacity to an income does not, on
its own, reduce the patrimony of an injured
person. There must be
proof that the reduction in the income earning capacity will result
in actual loss of income. However, where
loss of income has been
established but proof of the quantum thereof cannot be produced in
the usual manner, the courts have shunned
the non-suiting of a
claimant and have preferred to make the best of the evidence tendered
to give effect to the finding of proved
reduction in loss of
income-earning capacity. As long as almost a century ago in
Herman
v Shapiro
the court said the following:
“
Monetary damage
having been suffered, it is necessary for the Court to assess the
amount and make the best use it can of the evidence
before it. There
are cases where the assessment by the Court is very little more than
an estimate; but even so, if it is certain
that pecuniary damage has
been suffered, the Court is bound to award damages.”
[26] Since then this
dictum has been quoted with approval in a number of cases. In
Esso
Standards SA (Pty) Ltd v Katz
the court held that “where
the best available evidence to the plaintiff has been produced,
though it is not entirely of a
conclusive character and does not
permit a mathematical calculation of the damages suffered still, if
it is the best evidence available
the court must use it and arrive at
a conclusion based on it.”
[27]
In this case it was established that Mr Kerridge had suffered past
loss of income and loss of future income earning capacity.
It was
incumbent upon the trial court to assess the quantum thereof on the
best available evidence…’ (Footnotes omitted.)
[119]
Therefore having accepted that the plaintiff required the assistance
of a driver over long distances, I have to
determine the loss on the
evidence available, inconsistent and unreliable as it may be. It was
not disputed that the plaintiff
commenced business in February 2011,
and held demonstrations at 13-14 exhibitions per year which extended
over three to four days.
In 2020 she had three shows until March. The
exhibitions took place at Durban, Pietermaritzburg, East London, Cape
Town, Gauteng
and Bloemfontein. The driver was paid R100 per day or
R500 per show to drive to Durban, R1 000 per longer trip and
R1 500
to Cape Town, and he received no increase from 2011 to
2020, a period of nine years. I have allowed for 14 shows per year. I
have
not allocated a fee for the driver for one show in
Pietermaritzburg per year as the plaintiff lives in the town and she
testified
that she can drive short distances. The remaining 13 shows
are allocated as follows:
2 shows in Durban at R500
each

R1 000
2 shows in Cape Town at
R1 500 each

R3 000
9 shows in Gauteng/Free
State/E Cape at R1 000 each
R9 000_
R13 000
R13 000 per annum x
9 years (2011 -2019)

R117 000
I have allowed 3 shows
for 2020 at R500 +R1 000+ R1 500

R3 000
Total
R120 000
The
‘normal’ contingency applied to past loss of income is
5%.
[32]
I am of the view that a higher contingency of 15% is appropriate
given the fluctuating figures given by the plaintiff and Mr Govender

and in the reconciliations. The amount awarded for past loss of
income is consequently R102 000.
Future
loss of
earnings
[120]
The use of a driver for long distance business trips by the plaintiff
does not have to be factored into the claim
for future loss of
earnings as the plaintiff will no longer be travelling to shows and
will assume a sedentary capacity as manager.
This claim is based
therefore based only on the cost of employment of an additional
demonstrator. The difficulties already identified
in the plaintiff’s
evidence are also relevant to the determination of her future loss of
income. However the plaintiff has
provided details of the income she
has declared to the receiver. While the plaintiff seeks to perpetuate
the under declaration
of her income to SARS in this court by
admitting that her income on the returns she submitted to SARS is
less than the income of
R13 000 per month on which she has based her
claim for loss of earnings, it is untenable that a court perpetuates
her unlawful
conduct. Therefore I am of the view that the only basis
for the calculation of the cost of the future employment of a
substitute
demonstrator are the figures reflected as member’s
salary on the SARS returns. The total salary declared from 2013 to
2019
is R459 000, which translates to an average salary of R5 464 per
month.
[121]
The plaintiff may not be able to perform the function of a
demonstrator but she remains the driving force behind
business
conducted by Indigo Rain CC, and she can continue to arrange
exhibitions and supervise her staff as she has done in the
past. On
the fallacious belief that the plaintiff was not working when
interviewed, both occupational therapists noted that the
plaintiff
will not be able to ‘return to work’ as a promoter.
However, Ms Stirton opined that claimant’s current
vocation as
a business manager was appropriate and reasonable as she was able to
work flexible hours and rest as required.
Ms Reddy agreed that
if the plaintiff had to work on a phone or computer, she could
continue to work, albeit in a supervisory capacity
and earn a
living.  On the facts, the risk of the plaintiff being forced to
seek a living in the open labour market, or the
possibility of her
choosing to do so, is remote. Such financial statements of Indigo
Rain CC that have been provided show continued
growth from 2011 to
2019. As already held, there is also no evidence that the plaintiff
received less from Indigo Rain CC by way
of drawings because of the
close corporation’s ‘reduced’ income.
[122]
In the premises, the plaintiff’s future loss of earnings must
be actuarially calculated on her declared
income, her age and
prospective retirement age and her ability to run her business
operations and supervise her employees. Although
Ms Reddy suggested
an earlier retirement of eight to ten years it was based on the
incorrect information that the plaintiff was
no longer working at
all. I have also taken into consideration that there were no shows
from March 2020 and even when the plaintiff
testified in March 2021
there were no demonstrations of her products taking place, and there
was no indication that the shows had
resumed when the trial resumed
in October 2021. It would therefore be patently unfair to order that
the defendant reimburse the
plaintiff for this period. The downturn
in the economy is also pertinent.  I find a higher contingency
as suggested by Mr
Naidoo
appropriate. I issue the following
directions for actuarial calculations:
Future
loss of earnings
(a)
To be calculated from 1 November 2021 to date
of retirement of plaintiff at age 60 years.
(b)
It is assumed that life expectancy has not been
compromised.
(c)
The plaintiff’s average income as
demonstrator/manager is R5 464 per month as at end of 2019. The
average income will
also apply as at 1 November 2021.
(d)
It is assumed that the plaintiff will not work
as a demonstrator but will continue to manage the shows and sale of
leather care
products. Therefore there is a residual earning
capacity.
(e)
Future income from 1 November 2021 accruing to
the plaintiff will increase in accordance to inflation and to be
capitalised.
(f)
25% contingency to be applied.
(g)
All other considerations normally taken into
account in actuarial calculations of this nature to be taken into
account.
General
damages
[123]
While it is trite that the court ‘has a wide discretion to
award what it considers to be fair and
adequate
compensation
to the injured party’,
[33]
it is not uncommon to seek guidance from case authorities on the
subject.  Mr
Naidoo
contended that an award for general damages in the sum of R400 000
is appropriate and provided the following cases as guidelines
in
respect of the quantum. (I have selected only those cases which are
consistent with my findings in respect of the injuries suffered
by
the plaintiff in the fall and the sequelae.)
(a)
In
Road
Accident Fund v Marunqa
,
[34]
the
plaintiff sustained the following injuries:
(i)
A fracture of the left femur.
(iii)
Soft tissue
injury in the chest area.
The
trial court awarded R375 000 which was substituted on appeal to an
amount of R175 000 in 2003 which in current terms equates
to R510 000
(b)
In
Lee
v Road Accident Fund
[35]
the
plaintiff sustained multiple fractures including the following
namely:
(h)
A back injury;
(ii)
A comminuted
fracture of the right knee.
(iii)
An elbow
fracture.
The
trial court awarded the sum of R250 000 which in current terms
equates to R431 000.
(c)
In
Coetzer
v RAF
[36]
the
Plaintiff sustained the following injuries:
(i)
A back injury.
(ii)
A compound fracture to the left femur with complications.
The
plaintiff recovered almost fully from the leg injury but suffered
continued and residual effects of the back injury. His employment
as
an auto electrician was in the circumstances severely curtailed. He
required now to take up sedentary employment. The trial
court awarded
the plaintiff the sum of RI00 000 which equates in current terms to
R229 000.
(d)
In
Bosch
v Parity Insurance Co Ltd
[37]
the
plaintiff sustained the following injuries:
(j)
17 Broken
ribs.
(ii)
A broken knee joint.
An
amount of R2 000 was awarded by the trial court which equates in
current terms to R193 000.
(e)
In
Titus
v Road Accident Fund
[38]
the
plaintiff sustained the following injuries:
(i)
Indeterminable
internal knee damage behind the knee joint which commenced from after
the accident and at times it became so severe
as to cause the
plaintiff to give up remunerative jobs.
The
award was initially R80 000 which equates in current terms to
R202 000.
(f)
In
PM
v Road Accident Fund
[39]
the
plaintiff sustained:
(i)
an injury to
her C1 and C2 vertebrae and an injury to her knee, with the knee
recovering completely.
She
was awarded a sum of R300 000, which in current value is R354 765.45.
[124]
Mr
Maharaj
has
in response referred to
Lee
v Road Accident Fund
,
[40]
a
judgment of Makgoka J in which the learned judge referred to two of
the cases relied on by Mr
Naidoo
:
‘
[26]
In Titus v Road Accident Fund 2003 (5) C & H E 7-9, the plaintiff
(age not stipulated,) suffered an indeterminable internal
damage
behind the knee-joint leading to persistent pain which commenced from
after the accident and at times became so severe as
to cause the
plaintiff to give up remunerative jobs, avoid the physical aspects of
training courses and take excessive sick leave.
He was awarded R80
000.00 for general damages in 2003, which amounts to R120 000.00
today.’
In
the case of
Marunga
the plaintiff suffered a fracture of the
left femur, a soft tissue injury to the chest, bruises to the
forehead and the left knee.
He was hospitalized for 5 months of which
two were spent with his leg in traction and in plaster cast. For some
4 years after the
accident he was still receiving medical treatment.
His left leg had a shortening of 3.5 centimetres and he was required
to undergo
2 further surgical procedures which would cause him
further pain and suffering. He was awarded R375 000,00 which on
appeal was
reduced to R175 000,00.
Mr
Maharaj
has
pointed out that the plaintiff’s injuries are not as severe as
in the aforementioned cases. Further the plaintiff has
been advised
to undergo a total knee replacement which would substantially reduce
the pain that she allegedly endues, but has elected
not to undergo
such surgery. The plaintiff’s lower back condition was
pre-existing and Dr Osman testified that the fall would
have
exacerbated the plaintiff’s pain which would have
settled
within six to seven
months. He therefore submitted that an amount of R140 000 would more
than adequately compensate for the plaintiff’s
pain and
suffering.
[125]
In
determining
this
claim I have taken note of the report of the occupational therapists
and their joint minute in particular, in respect of the
plaintiff’s
state of mind and her self-esteem as well as her post-morbid physical
limitations such as her inability to dance
and run. I have also taken
into consideration the treatment the plaintiff has undergone and her
election (to which she is entitled)
not to undergo surgery. Further
the approval of domestic assistance, assistive devices, the referral
to a biokineticist and dietician
and the measures suggested by Dr
Osman will assist the plaintiff in respect of future pain in her knee
and back. I am satisfied
that the sum of R250 000 is the
appropriate compensation.
[126]
The
quantum
already
determined by the court is subject to the reduction of 10% being the
agreed apportionment by the parties.
(i)
Past medical
expenses

R21 382.25
(ii)
Assistive devices and domestic assistance

R327 840
(iii)
Past loss of earnings

R102 000
(v)
General damages
R250 000
Sub
-Total

R701 222.25
Less
10%
R70  122.23
Total
R631 100.02
As
these
figures
are
final there is no need to delay payment thereof until the further
issues are resolved.
Costs
[127]
Mr
Maharaj
requested
that the court not make an order in respect of costs until the
judgment on
quantum
has
been delivered, whereafter the parties may advance argument on costs.
There was no objection to this request. I therefore at
this stage do
not make an order.
Order
[128]
The following
order
do
issue:
1.
The defendant is directed to pay to the plaintiff the sum of
R631 100.02
(six hundred and thirty-one thousand one hundred
rand and two cents) as part payment of the plaintiff’s claim,
which sum
shall be paid within fourteen (14) days of the date of this
judgment by electronic funds transfer into the trust account of the

plaintiff’s attorneys Kooben Chetty & Associates:
Account
name: Kooben Chetty & Associates Trust account
Bank:
Nedbank
Branch:
KZN Inland
Account
no.: 1[...]
Branch
code: 1[...]
2.
The following directions are issued in respect of future medical
expenses:
2.1
Future medical expenses are to be computed by an actuary in respect
of the following interventions/
treatments:
(a)
medication -  R200 per month
(b)
orthopedic surgeon - 1 consultation per annum
(c)
wedge for the heel
(d)
knee brace
(e)
evaluation by a biokineticist
(f)
evaluation and diet plan by a dietitian
2.2
It is to be assumed that the plaintiff’s life expectancy
remains unaffected.
2.3
Contingency of 20% is to be applied.
3.
The following directions are issued in respect of future loss of
earnings:
3.1
Future loss of earnings are to be actuarially calculated from 1
November 2021 to date of
retirement
of plaintiff at age 60 years.
3.2
It is
assumed
that life expectancy has not been compromised.
3.3
The plaintiff’s average income as demonstrator/manager is
R5 464 per month as
at end of 2019. The average income will also
apply as at 1 November 2021.
3.4
It is assumed that the plaintiff will not work as a demonstrator but
will continue to manage
the shows and sale of leather care products.
Therefore there is a residual earning capacity.
3.5
Future income from 1 November 2021 accruing to the plaintiff will
increase in accordance
to inflation and to be capitalised.
3.6
25%
contingency
to be applied.
3.7
All other considerations normally taken into account in actuarial
calculations
of this nature
to be taken into account.
4.
Costs are reserved.
Moodley
J
Judgment on
costs        delivered 28 July
2023 (ex tempore)
MoodleyJ:
:
[1]
I delivered judgment on 31 January 2022 in which I ordered part
payment of the plaintiff’s
claim and issued directions in
respect of future medical expenses and future loss of earnings. No
order was issued in respect of
costs pursuant to submissions by the
defendant’s counsel, Mr Maharaj. There was no objection on
behalf of the plaintiff.
[2]
There was no communication from the legal representatives of the
parties thereafter
until about 1 month ago I requested my registrar
to enquire from the attorneys of record as to whether the outstanding
issues had
been resolved between the parties and the file may be
closed. On receipt of correspondence to the effect that the issue of
costs
remained in dispute, I declined an invitation by the
plaintiff’s attorneys to hold a pre-trial conference, and
directed that
the issue of costs be set down for argument. This is
therefore the only issue for determination at this hearing.
[3]
The parties are represented today as they were in the trial:
The
plaintiff:   Mr V M Naidoo SC assisted by Mr M Chetty and
the
defendant  by Mr M Maharaj.
The
instructing attorneys remain unchanged. Both parties have delivered
Heads of argument as directed.
[4]
The following should be noted:
1
Pursuant to the order issued on 31 January 2022, the Defendant has
paid
to the Plaintiff the sum of R911 309-02 in settlement of the
Plaintiff's claim for past and future medical expenses, assistive
devices and domestic assistance, past and future loss of earnings and
general damages.
2
On 8 March 2021, when the matter proceeded to trial before me on
quantum
the plaintiff’s claim was for damages, computed on all
heads of damages, in the amount of R5 009 850.37. The
defendant
has pointed out that the plaintiff’s initial claim
was approximately R400 000. Her claim was increased to
approximately
R3 million when the Defendant conceded liability at a
ratio of 90:10, before her claim was pinned at just over R5 million
at the
commencement of the trial.
3
On 16 November 2020 the defendant made an offer of settlement in
terms of
Rule 34(1) and (5), without prejudice and without admission
of liability on quantum, in the amount of R500 000 and costs as

set out in paragraph 2 of the notice of tender.
[5]
On the issue of costs, there are several major points of dispute:
1
Whether the plaintiff is entitled to 100% of her party
and party
costs;
2
Whether the costs of the Plaintiff’s experts, the
Industrial
psychologist Shaida Bobat, the actuary Munro Forensic Actuaries, the
Occupational Therapist Gwen Reddy and the orthopaedic
surgeon Dr
Yachad, should be allowed, whether in full or partially;
3
Whether the costs of a bundle of financial statements filed
by the
plaintiff  were reasonably incurred and should be allowed;
4
Whether the reserved costs relating to the adjournment
on 16 November
2020 ought to be paid by the plaintiff; and
5
Whether the costs of two counsel, viz senior and junior
should be
allowed.
Principles
relevant to the ordering of costs
[6]
Briefly summarised:
1
All costs, except those specifically enacted, are in the discretion
of the
judge, which discretion must be judicially exercised on a
consideration of the facts of the case, and is essentially a matter
of
fairness to all the parties.
2
The general principle that costs follow the event is also subject to
the
discretion of the judge. The judge may disallow costs or a
portion thereof should the facts of the case or the conduct of a
litigant
warrant such deprivation of costs.
3
Where there is a gross disproportion between the amount claimed for
damages
and the amount awarded, the plaintiff will not necessarily be
deprived of costs- the circumstances of the matter must be considered

and warrant such deprivation.
[7]
It is common cause that the payment in settlement of the Plaintiff’s
claim exceeded
the tender of R500 000, which is the basis for
the submission by Mr Naidoo that the plaintiff is entitled to an
order for
party and party costs, which is also consistent with the
general rule that a successful party is entitled to costs.
[8]
The defendant has advanced several contentions to the contrary and
identified factors
which the Court, in the exercise of its
discretion, ought to take into account, which will justify a
deviation from the aforesaid
general rule:
Plaintiff’s
conduct of litigation and her performance as a witness
1
Inflated / Exorbitant Claim
(a)
The amount claimed is grossly disproportionate to the amount
realistically claimable by
the Plaintiff for what is termed a “slip
and fall” claim.
(b)
the Plaintiff’s initial claim of approximately R400 000
increased to just over R5 million,
after the Defendant conceded
liability although the factors giving rise to the Plaintiff’s
claim remained unaltered.
(c)
This increase was not only unjustified
but lead to the inference that:-
(i)
the plaintiff was not acting bona fides; and
(ii)
she did so because her claim effectively lay against the insurers of
the Defendant.
The
Defendant submits that it has, in contrast, acted properly by
conceding liability at an early stage and tendering an offer based
on
precedent. Therefore the costs recoverable by the plaintiff should be
limited.
2
The conduct of the Plaintiff in the trial
Extrapolated
from my judgment, the defendant submits that
(a)
the Plaintiff was not a satisfactory witness;
(b)
she failed to disclose material aspects of her income and her
employment activities to the experts;
(c)
she included the sum of R120 000 for knee replacement when she
was adamant that
she would not go for such surgery.
(d)
She exaggerated the injury to her back in an attempt to enhance her
claim.
(e)
She tailored her evidence in respect of the size of her business in
order to seek greater compensation.
The
Defendant points out further that in its evaluation of the Plaintiff
in the judgment, the court held that she was unable to
explain the
inconsistencies in her testimony and at times failed to answer
important and very relevant questions.
3.
The plaintiff undertook at a Rule 37 Conference held on 23 September
2020 inter
alia to provide the Defendant by 30 September 2020 with:-
(i)
a schedule and copies of past hospital and medical expenses
substantiated by invoices;
(ii)
the full names, contact details (phone numbers) and proof of amounts
paid in respect of
all employees of the Plaintiff’s business.
There
was no compliance with the undertaking nor was an explanation for the
non-compliance forthcoming.
Mr
Maharaj has submitted that had such documents been furnished, they
would have lent some credence to that portion of the
Plaintiff’s
claim.
In
the light of all of the aforegoing contentions, the defendant submits
that the Plaintiff ought to be directed to forfeit 50%
of her party
and party costs.
[9]
In response   Mr Naidoo   has contended that to
deprive the plaintiff
of her costs would be unfair and unwarranted.
His argument is on record and I have taken his submissions into
account.
Evaluation
[10]
It is trite that a successful party will not be deprived of its costs
just because its claim
was excessive or extravagant. However an
increase in the claim without a proper basis therefor, and a claim
which the plaintiff
knows is excessive and therefore partially
fraudulent may result in a deprivation of costs.
[11]
In this case the plaintiff had the benefit of advice from two counsel
and an attorney. There
is in my view merit in the defendant’s
contention that the plaintiff ought to have known, and indeed ought
to have been advised,
that there were portions of her claim
that she could not substantiate or prove – past medical
expenses  and the employees
of Indigo Rain and the salaries paid
to them without the necessary supporting documentation .
[12]
However I have interrogated the attempt made by the plaintiff in
respect of the past medical
expenses in the judgment and am of the
view that there was no fraud intended or intent to mislead the court.
However the discrepancies
in respect of the employees and their
salaries and failure to disclose the continued attendance at
demonstrations by the plaintiff
to the Occupational therapists, as
well as the other adverse findings in my judgment cannot be ignored
as they are indeed relevant
as the reports based on misleading
information or omission of facts become in themselves unreliable and
misleading to a court that
is dependent upon such expert reports to
assist it in arriving at a fair and just order.
1
Expert Reports
[13]
While it therefore follows that the expert reports did not in some
respects serve the purpose
for which they were intended, it was
nevertheless necessary for the Plaintiff to obtain the services of
experts in order to discharge
the onus on her to prove that she was
injured when she fell and suffered damages consequent thereto, and
thereafter the quantum
thereof.  Without the input of the
experts the sequelae of the fall could not have been determined and
the quantum of damages
could not have been computed. Although it is
apparent given the judgment of this court and the amount paid in
settlement of the
claim, that the quantum was in fact excessive, it
is however in my view not a sufficient ground for depriving the
plaintiff of
the costs of the experts. She has already to an extent
borne the brunt of her disingenuity in the settlement amount of her
claim
and the order I will issue will also reflect the exercise of my
discretion.
2
Bundle E
[14]
The next issue is whether the costs of a bundle of Financial
statements consisting of 370 pages
filed by the plaintiff during the
course of the trial were reasonably incurred and should be allowed. I
do not require much persuasion
to specifically disallow these costs –
I have commented on the unnecessary volume of the financial
statements with which
the court was burdened to no avail or useful
purpose. In fact the only page of any relevance was page 368 which
was the schedule
of staff salaries for Indigo Rain CC contained in a
single folio. Mr Naidoo’s concession on this issue is properly
made.
3
The reserved costs of the adjournment on 16 November 2020
[15]
The defendant submits that the plaintiff was the cause of the
adjournment and therefore the costs
ought to be paid by the
plaintiff. Mr Naidoo has responded pointing out that the plaintiff
was ready to proceed and her experts
were available.
However
having had recourse to the order made, the request to the plaintiff
for the financial statements which were not provided
and the
amendment to the particulars of claim, I am satisfied that the
plaintiff was in fact responsible for the adjournment and
should
therefore bear the costs thereof.
4
Costs of two counsel, viz senior and junior
[16]
Counsel for the Plaintiff have provided a number of authorities to
sustain the argument that
the employment of 2 counsel was warranted.
The defendant has argued to the contrary. However given the nature
and amount of the
claim, I am persuaded that the services of two
counsel were justified and not mere overcaution.
Order
[17]
It is ordered that:
1.
The Defendant is directed to pay 95% of the Plaintiff's party and
party costs
on the High Court scale as taxed or agreed; disbursements
are to be excluded when the 95% of the costs are calculated.
2.
The Defendant is directed
to pay the following party and party costs on the High Court
scale of
the plaintiff, as taxed or agreed, subject to paragraph (1) of this
order:
2.1
In accordance with the provisions of Rule 69 of the Uniform Rules of
court, the costs of
two counsel (Senior & Junior) where so
employed, which costs are to include, (but not restricted to) the
following:
2.1.1
advice on evidence;
2.1.2
heads of argument in respect of quantum and
costs;
2.1.3
preparation for and attendance at Court
on 11 May 2020.
2.1.4
preparation for and attendance at Court on
8, 9 and 10 March
2021
2.1.5
preparation for and attendance at Court on 4
and 5 October 2021
2.1.6
preparation for and attendance at Court
on 27
July 2023;
2.1.7
new term refresher fees wherever applicable;
2.1.8
Preparation for consultations, traveling
time and expenses, for
consultations with Experts, Plaintiff and/or witnesses.
2.1.9
Preparation for and consultations for trial
between themselves and/or
Attorneys, with or without Plaintiff or witnesses being present.
2.2
The costs incurred in order to prove liability and reserved costs
orders granted in the
matter, save for the adjournment on 16 November
2020, which shall be paid by the plaintiff to the defendant;
2.3
The reasonable and necessary costs of experts listed below for
perusal of documents, research
and preparation conducted for their
respective medico-legal consultations with Plaintiff and for drawing
of their medico-legal
reports and/or supplementary reports,
addendums, joint minutes, including consultations with plaintiff's
legal representatives.
2.3.1
Plaintiff's Experts are:
i.
Shaida Bobat, Industrial Psychologist;
ii.
Gwen Reddy, Occupational Therapist;
iii
Dr. R Yachad, Orthopaedic Surgeon;
iv
Munro Forensic Actuaries, Actuary.
2.4
The attendance or reservation fees, qualifying fees, perusal of
documents, travelling time and expenses for attendance at court
of
experts as follows:
2.4.1   Gwen Reddy
on 8 and 9 March 2021;
2.4.2   Dr. R
Yachad on 8 March 2021;
2.4.3   Shaida
Bobat on 9 March 2021.
2.5
The Plaintiff's reasonable travelling and
subsistence expenses to attend the assessments and consultations
with
the experts of Plaintiff and Defendant.
2.6.
The reasonable and necessary costs of the Plaintiff's legal
representatives for preparation for and consultations with the

Plaintiff's expert witnesses, consultations between themselves and
other witnesses, whether or not the Plaintiff was present.
2.7.
The costs consequent upon Plaintiff's Attorney and/or Counsel
attending Rule 37(4) and Rule 37(8) pre-trial / case flow management

conferences held to date.
2.8
The reasonable and necessary costs of preparation for and travelling
time and costs incurred
in respect of the attendance at an
inspection-in-loco held by the Plaintiff's legal representatives.
3.
The Plaintiff shall, in the event that costs are not agreed, serve a
Notice of
Taxation on the Defendant's attorney of record.
4.
The Plaintiff shall allow the Defendant fourteen (14) days to effect
payment
of the taxed or agreed costs.
5.
The Defendant shall be
liable to pay any additional costs reasonably and necessarily

incurred pursuant to this order being granted for the enforcement of
or recovery of the taxed or agreed costs from the defendant.
MOODLEY J
Trial
Dates of Hearing:
8-10 March 2021
4-5
October 2021
Date of judgment:
31 January 2022
Costs
Date of hearing :
28 July 2023
Date of judgment:
28 July 2023
APPEARANCES
For
Plaintiff:
VM
Naidoo SC with M Chetty
Instructed
by:
KOOBEN
CHETTY & ASSOCIATES
444
Jabu Ndlovu Street
PIETERMARITZBURG
Ref:
40/P086/0001/L29/RC
Tel:
033 – 394 8115
Fax:
033 – 394 8119
Email:
kscvcl@mweb.co.za
For
Defendant:
Mr
M Maharaj
Instructed
by:
CHAPMAN
DYER INCORPORATED
7
th
Floor, 300 Anton Lembede Street
DURBAN
Ref:
VNB/SM/18Z4349/150
Email:
nashika@cdi.co.za
/
vikesh@cdi.co.za
c/o:
STOWELL & COMPANY
295
Pietermaritz Street
PIETERMARITZBURG
Ref:
A.R. Irons/jb/CHAO13/0086
[1]
HAL obo
MML v MEC for Health, Free State
[2022] 1 All SA 28 (SCA).
[2]
Ibid
para 198.
[3]
Road
Accident Fund v Kerridge
2019 (2) SA 233 (SCA).
[4]
Ibid
para 50.
[5]
MV
Pasquale della Gatta; MV Filippo Lembo; Imperial Marine Co v
Deiulemar Compagnia di Navigazione Spa
2012
(1) SA 58 (SCA).
[6]
Above fn 1.
[7]
AM &
another v MEC for Health, Western Cape
2021 (3) SA 337
(SCA) para 21.
[8]
Bee v
Road Accident Fund
2018 (4) SA 366 (SCA).
[9]
Rudman
v The Road Accident Fund
2003
(2) SA 234
(SCA).
[10]
President
Insurance Co Ltd v Matthews
1992 (1) SA 1 (A).
[11]
Ibid
at 5E-F.
[12]
Rudman
v The Road Accident Fund
2003
(2) SA 234
(SCA) para 11.
[13]
headnote
[14]
Dippenaar
v Shield Insurance Company
1979 (2) SA 904
(A) at 917B-C.
[15]
PQR Boberg
The
Law of Delict
Vol 1 (1984) at 531.
[16]
Visser and Potgieter
Law
of Damages
3 ed (2012) at 462-463.
[17]
Ibid at 464-465.
[18]
HB Klopper
The
Law of Third-Party Compensation
3 ed (2012) at 172.
[19]
Ibid at 186-187.
[20]
Coopers
(South Africa) (Pty) Ltd v Deutsche Gesellschaft für
Schädlingsbekämpfung MBH
1976 (3) SA 352
(A).
[21]
Ibid
at
371F-G.
[22]
PriceWaterhouse
Coopers Incorporated & others v National Potato Co-operative Ltd
& another
[2015] 2 All SA 403
(SCA) para 99.
[23]
Bee v
Road Accident Fund
2018 (4) SA 366 (SCA).
[24]
Paragraph 32 supra.
[25]
Rudman
para
12.
[26]
Bee
para
82.
[27]
Rudman
para 16.
[28]
Under participation in activities of daily living, both occupational
therapists noted difficulty with driving due to pain in
the knees
and that the plaintiff had hired a driver when long distance driving
was required.
[29]
Sandler
v Wholesale Coal Suppliers Ltd
1941 AD 194.
[30]
Ibid
at 198.
[31]
Road
Accident Fund v Kerridge
2019 (2) SA 233 (SCA).
[32]
Ibid para 30.
[33]
Road
Accident Fund v
Marunga
2003
(5) SA 164
(SCA) para 23.
[34]
Ibid.
[35]
Lee
v Road Accident Fund
[2015] JOL 34211 (GNP).
[36]
Coetzer
v RAF
[2006]
JOL 17642 (T).
[37]
Bosch
v Parity Insurance Co Ltd
[1964]
1 All SA 251 (W).
[38]
Titus
v Road Accident Fund
C
& H Vol 5 E7-9
.
[39]
PM
v Road Accident Fund
(5881/2017)
[2019] ZAFSHC 168
(19 September 2019).
[40]
Lee
v Road Accident Fund
(24915/2008)
[2010] ZAGPPHC 276 (18 June 2010).