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
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NO.: 19251 /2014
In the matter between:
TANYA KLEYN Plaintiff
and
KFC SOMERSET WEST Defendant
JUDGMENT
PARKER, AJ:
Introduction
[1] On the 26th September 2013, at Defendant’s premises Plaintiff slipped and fell on
a wet floor/stair s. On 25th October 2018 this Honourable Court held Defendant liable for
50 percent of Plaintiff’s agreed or proven damages. This judgment therefore is in
respect of Quantum only.
[2] As a result of the fall at the premises of Defendant, Plaintiff sustained a soft
tissue injury to he r lower back for which she was initially treated conservatively, and
when pins and needles in both her feet and pain ensued in her lower back she
consulted a general practitioner on 27th September 2013. In the result there was a
narrowing of the L4 disc space.
[3] As a result of Plaintiff’s aforesaid injuries and their sequelae, Plaintiff has
sustained damages and as amended claimed follows:
3.1 Past medical expenses R 24 779.77
3.2 Future medical expenses R338 777.00
3.5 General Damages R350 000.00
TOTAL R713 556.77
[4] Witnesses
For P laintiff:
Dr P A Olivier, Orthopaedic Surgeon
Michelle Barnard, Quantum Actuarial Services CC, Actuary
For Defendant :
None
Dr Oliver’s Report
[5] Dr Olivier, as confirmed in his testimony diagnosed Plaintiff with a significant soft
tissue injury to her lumber area resulting in the mechanical backache. In Dr Olivier's
opinion the incident resulted in symptomatic disc d egeneration at the L4/5 level of
Plaintiff ’s lumber spine. Dr Olivier opined that Plaintiff would need conservative
treatment on a permanent basis and initially foresaw Plaintiff having to undergo possib le
three surgical interventions . The surgical interventions would have been an initial fusion,
exten ded fusion and possible disk replacement. However, she did not undergo the
procedures.
[6] Due to the lapse of time Dr Olivier and at the time of the hearing, Dr. Olivier
foresaw only the fusion operation still necessary and applied a 60% deduction in
Plaintiff’s favour that she would have to undergo the operation. Dr Olivier confirmed the
Plaintiff's testimony that she will probably never be pain free, but the operation will give
her pain relief . Dr Olivier furthermore confirmed the costs involved in her future medical
procedures as being fair and reasonable , which costs for med the basis of the actuarial
calculations . None of the Plaintiff's future medical procedures or the costs thereof were
disputed.
Michelle Barnard
[7] The report by Michelle Barnard (Actuary) of Quantum Actuarial Services was
received into evidence when it was indicated by Defendants legal representatives that
her viva voce evidence would not be necessary. Her updated actuarial report quantifies
Plaintiff ’s future medical expenses, based on Dr Olivier's updated report .
Past medical expenses
[8] The amount claimed under this head of damages is R 24 779.77 for which
vouchers were produced which expenses were paid by her medical aid, Gems. These
expenses related to the accident and for her radiology admissions that she had to
endure from 27th September 2013 to 25th August 2014 .
[9] Contingencies
Given the Plaintiffs hesitance to have undergone procedures in the past I deem it
prudent to apply a general contingency deduction by another 10 percent . In other
words, Dr. Olivier stated that there is a 60% chance that she will submit thereof to the
operation. In my view, based on her past conduct and having taken her personal
circumstances into account, coupled with the pain she suffers deem it appropriate for a
50% chance that she will do so. The amount of R162 790.00 is adjusted to
R146 511.00.
Future medical expenses
[10] The Plaintiffs testimony was throughout the hearing steadfast that she, on the
advice of her local physician attempted to postpone the medical proce dure as far as
possible and she indicated that she has now decided to undergo the necessary medical
procedure as indicated by Dr Olivier , during the early part of 2025, due to the ongoing
pain.
[11] The result of the above, as was evident from the second report by Dr Olivier
dated 16th July 2024 and confirmed by his oral testimony before this Court is that the
Plaintiff will now only require one (1) medical intervention and Dr Olivier has stated and
confirmed in his evidence that he foresees a 60% c hance that she will undergo the
procedure. Defendant was critical and skeptical of this procedure , indicating the
unlikelihood th at Plaintiff will submit herself to the procedure.
[12] With regards to the values attached to the Plaintiff ’s future medical expenses the
reasonableness and fairness of the amounts proffered by Dr Olivier was confirmed b y
him during his testimony, and , his testimony of the expected costs stands uncontested.
[13] The updated actuarial calculation was done which eliminate d two further medical
procedures1 that was initially indicated by Dr Olivier , were removed from the
1 Items 2 and 6 on page 3 (page 55 of exhibit A) of updated and amended actuarial report by Michelle
Barnard
calculations and the actuarially adjusted and calculated future medical expenses, as per
the amended actuarial calculation by Michelle Barnard (the actuary) amounts to R338
777.00.
[14] Provision was made for c onservative treatment for R30 293.00 as well as
R112 207.00 in the calculations. Since t he past medical expenses adequately cover the
first conservative treatment, I deem it prudent to disregard the sum of R30 293.00. The
total future medical expenses are R292 205.00. (inclusive of the add itional
10%adjusted)
General Damages
[15] At the time of the fal l Plaintiff was 36 years of age and a Security Officer which
included an active lifestyle . She described at the hearing that she experienced lower
back pain immediately after the fall which she continues to suffer from and used pain
medication for relief. She had delayed the fusion operation previously on advice of her
general practition er for as long as she was able to bear the pain and limitation of her
movements, however she has now found acceptance to undergo the procedure in 2025 .
She described to court how she had felt about her mobility as she experiences
discomfort when sitting, wal king or standing for long periods of time.
[16] In determining the quantum of General damages in personal injury cases the trial
court essentially exercises a general discretion. This description is not fettered by an
inexorable tariff drawn from previous similar awards. In the first instance a proper basis
for comparison must be ascertained. It is not enough to compare the general nature of
the injuries; all factors affecting the assessment of damages must be considered. Once
it is established that the ci rcumstances are sufficiently comparable, then such cases are
to be used to provide a general yardstick to assist the court in arriving at an award
appropriate.
[17] However, each case differs and must be determined on its own merits. The
purpose of awarding damages “ is not to enrich the aggrieved party but to offer him or
her some much -needed solatium for his or her injured feelings ” to ensure that the
damages awarded are commensurate with the injury inflicted .
[18] In determining an appropriate a ward for general damages, I considered Radebe
v Road Accident Fund2. The Plaintiff sustained a soft tissue Injury to the right leg and
lower back. She was transported by ambulance to Jubilee hospital. The initial
resuscitation was done. She was given medication for the right leg pain and discharged
on the same day. She started experiencing lower back ache. She consulted a general
practitioner, the next day. She was given pain medication. She was referred to a
physiotherapist for rehabilitation fr om January 2015. She consulted with the Plaintiff's
orthopedic surgeon, in May 2016. X -rays were taken and an MRI scan was done. On 17
May 2016 she was admitted at Louis Pasteur hospital where she was treated with
NSAIDS. The MRI scan showed disc changes a t L5/ S1. She continued receiving
physiotherapy. In this matter, Plaintiff also suffered a mild head injury. But for the head
injury, this case is similar although no medical procedures are indicated.
General damages awarded: R 450 000.00
Updated value: R 700 000.00
[19] In PM v Road Accident Fund3, the Plaintiff suffered an injury to her neck (C1 and
C2 vertebrae) and to her knee. Plaintiff had limited neck movement and could only work
in a neck friendly environment. Plaintiff continued experiencing pain, two years after the
accident and would continue experiencing chronic pain for the rest of her life.
General damages awarded: R 300 000.00
Updated value: R 366 400.00
2 [2019] ZAGPPHC 475
3 [2019] ZAFSHC 168
[20] In RAF v Maasdorp 20024, the Plaintif f, a 49 year old hawker and home
mechanic, suffered a severe L5/S1 listhesis as well as a slight slip at level L3/L4. He
experienced chronic lower backache and certain activities causing nerve root
compression and "typical sciatica" in his leg. The plaintif f spent most nights twisting and
turning in bed trying to find a position of comfort. Driving time and walking distance was
curtailed. A fusion (with bone and screws) at level L5/S1 was immediately indicated,
which could be expected to significantly allevi ate the symptoms, including the pain down
the leg and enable the plaintiff to walk further and sit and stand much longer but still
unable to resume work as a mechanic. In the mean time the pain was kept under
control by the avoidance of certain activities.
General damages awarded: R 110 000.00
Updated value: R 330 000.00
[21] I agree with Plaintiff’s counsel that n one of the above cases are 100% similar to
the situation of the Plaintiff. It is submitted that the injuries in some of the cases were
less and in others worse than those of the Plaintiff. In De Jongh v Du Pisani N.O.5 the
Supreme Court of Appeal at paragraph 60 laid down the basic rule in that the award
should be fair to both sides. Considering the injuries which Plaintiff sustained, and her
ongoing pain, lack of optimal mobility and her frustration with her condition, an award in
the sum of R300 000.00 is appropriate.
Costs
[22] There are no reasons for me to depart from awarding costs order in favour of
Plaintiff
Order
4 5 C&B C4 -31(C)
5 2005 (5) SA 547 (SCA)
[23] Having considered the pleadings filed on recor d and having heard evidence and
arguments on behalf of the plaintiff and defendant, the following order is made:
(a) Payment by the defendant to the Plaintiff in the sum of R308 492.38, after
the 50% apportionment which amount is calculated as follows:
Past medical expenses R24 779.77
Future medical expenses R292 205.00
General Damages R300 000.00
Balance R616 984.77
Less 50% apportionment R308 492.38
(b) The aforesaid amount is to be paid into the following bank account:
VISAGIE VOS INC -TRUSTACCOUNT
ABSA BANK
N1 CITY
BRANCH CODE: 632005
ACCOUNT NO: 1[…]
REFERENCE: (K711) K512
(c) legal costs on a party and party basis on scale B , which costs are to
include the following experts, including the compiling of the reports of:
(i) Dr P A Olivier, Orthopedic Surgeon
(ii) Michelle Barnard Quantum Actuarial Services CC, Actuary
(d) Interest a tempore morae at 10.25%
_______________________
R K PARKER
Ms Acting Justice of the High Court
Western Cape Division
Appearances
Counsel for Plaintiff : Adv H E de la Rey - Bloemfontein Chambers
Instructed by: Visagie Vos Attorneys
Mr EJ van der Westhuizen
Counsel for Defendant : Adv W J van der Merwe
Instructed by: Kellerman Hendrikse Inc.
Mr HD Hendrikse
Date of Hearing: 10 Sept ember 2024
Date of Judgment: 30 January 2025