Z.N v MEC for Health Province of KwaZulu-Natal (5446/2011) [2024] ZAKZDHC 84 (4 October 2024)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: Kwazulu-Natal High Court, Durban South Africa: Kwazulu-Natal High Court, Durban You are here: SAFLII >> Databases >> South Africa: Kwazulu-Natal High Court, Durban >> 2024 >> [2024] ZAKZDHC 84 | Noteup | LawCite sino index ## Z.N v MEC for Health Province of KwaZulu-Natal (5446/2011) [2024] ZAKZDHC 84 (4 October 2024) Z.N v MEC for Health Province of KwaZulu-Natal (5446/2011) [2024] ZAKZDHC 84 (4 October 2024) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAKZDHC/Data/2024_84.html sino date 4 October 2024 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 LOCAL DIVISION, DURBAN CASE NO: 5446/2011 In the matter between: Z[...] N[...]                                                                                            Plaintiff and MEC FOR HEALTH: PROVINCE OF KWAZULU-NATAL                  Defendant ORDER 1.         In respect of the plaintiff’s claims for past and future loss of earnings and future medical, hospital and related expenses not specifically abandoned, I grant absolution from the instance with costs. 2.         Such costs including any reserved costs, are to be paid on a party/party scale by the plaintiff and are to include the costs occasioned by the employment of two counsel. JUDGMENT HENRIQUES J Introduction [1]          This is the judgment in respect of the reconvened quantum trial of this matter in which the issues for determination have been identified as follows: (a)       the past and future loss of earnings; (b)       the past and future medical and related expenses; (c)        and the rate of inflation applicable to the calculation of same. [2]          The plaintiff instituted action against the defendant for damages arising from the negligence of its doctors and nurses who treated her at King Edward VIII Hospital on 7 February 2009 when a caesarean section was performed. It is common cause that a post-surgical swab was left inside her body which resulted in septicaemia and various post-operative complications. [3]          The defendant conceded negligence and acknowledged liability for the plaintiff’s damages. The matter was thereafter enrolled for the determination of the plaintiff’s quantum of damages. The matter was initially enrolled for trial in October 2018. The trial did not proceed and the parties agreed on an order adjourning the trial to November 2018 and an order awarding the plaintiff an amount of R1 million in respect of general damages. [4]          The matter was adjourned for the parties to attempt to narrow the remaining issues, to attempt to agree on the applicable rate of medical inflation as well as for purposes of the expert’s availability. Particulars of claim [5]          The damages the plaintiff claimed, which were to be determined at trial, were for past hospital and medical expenses in the sum of R50 000.00, future hospital, medical and other related expenses in the sum of R5 million, transport expenses in the sum of R120 000.00, past loss of income in the sum of R1 033 790.00 and future loss of income in the sum of R2 409 495.00. [6]          In respect of future hospital and medical treatment, the plaintiff indicated she would require further treatment for her fistula, prolonged psychological and supportive therapy, treatment for the extensive scarring on her abdomen, further treatment and management of the colostomy and further surgery for the closure of the colostomy. She would require the services of a nurse as she was unable to perform the activities of daily living as she has a permanent colostomy, cannot transfer from the chair to a bed, cannot lift heavy objects, and has difficulty walking up stairs and cannot perform household chores, can only perform light tasks and cannot perform shopping on her own as she cannot lift up heavy objects and cannot travel on her own in a train nor can she be sexually active. [7]          The transport expenses enumerated relate to the attendance for prolonged psychological treatment, rehabilitative treatment, follow-ups in respect of her abdominal operations, reconstructive surgery to her abdominal wall, management of the colostomy and surgery for the closure of the colostomy. In respect of the past loss of earnings, these related to her inability to work subsequent to the incident limited to the sum of R1 033 790 and future loss of earnings in the sum of R2 409 495 as she indicates she will not be able to work again, as she is permanently incapacitated and would have worked until the age of 65, but is now unable to do so. She relies on the reports of Ms Sonia Hill dated 11 April 2023 and the report of Munro Actuaries, dated 15 May 2023, without applying any contingencies. [8]          In the particulars of claim the plaintiff pleads that the facts regarding her injuries and sequelae are set out in the various medico-legal reports that she had served and filed. The particulars of claim were subsequently amended in June 2023 to substantially increase the amounts originally claimed in 2011. Issues [9]          Given the agreement reached in 2018 regarding the general damages, the remaining issues for determination are the loss of earning capacity, (both past and future) and future medical, hospital and other related expenses, which the plaintiff will incur. [10]       Both parties instructed experts in relation to these aspects and it is common cause that experts in like disciplines have prepared joint minutes. These joint minutes deal with the areas of agreement and disagreement. [11]       At the commencement of the trial in 2018, the parties agreed that the actuaries would not be called to testify and that various scenarios would be given to the actuaries in order that a calculation be made. In respect of the future hospital, and medical and related expenses, the parties agreed that their submissions would be based on the contents of the various expert reports filed by both parties and the joint minutes of such experts. [12]       The plaintiff’s legal representative, Mr Botha SC, indicated that the plaintiff would not testify and would call only two expert witnesses being the clinical and industrial psychologists. There was no agreement on the collateral evidence contained in any of the reports and the parties would make submissions relating to the weight to be attached to such collateral evidence once the evidence had been finalised. The defendant’s stance was that such collaterals constituted hearsay evidence. Medical expenses [13]       The parties agreed that the future medical and related expenses were divided into three categories. The first category were the reports, which were agreed, which were that of the clinical sexologist Dr Marlene Wasserman, and the gynaecologists, Doctors Max Bennun and Stefanie Hinz. The second category of medical expenses were those, which are undisputed, which are contained in the reports of the plaintiff where the defendant has not instructed any experts of its own. The last category of expenses were those, which were disputed in respect of which evidence would have to be led. [14]       Prior to the commencement of the trial in 2018 and subsequently the parties had exchanged various medico-legal reports. For reasons, which will become evident hereinafter, it is necessary to set out in brief detail and highlight the reports filed by the plaintiff’s various experts. [15]       Professor Paul Goldberg, a gastroenterologist, completed two expert reports. In the respect of the initial report of 1 February 2016, he was provided with notes by the plaintiff's attorney of record and information obtained during the consultation with the plaintiff on 27 January 2016. He noted that further investigations were necessary specifically in relation to the conclusion that her stoma was permanent and to establish the anatomy of her gastro-intestinal tract. [16]       All these further investigations centred around determining whether it would be possible to close her stoma, alternatively revise it for it to be manageable. He also noted that the plaintiff's HIV status needed to be evaluated. At the time, he provided a report no estimates for any future surgery were reflected therein. He subsequently prepared a follow up report dated 13 December 2016, which was served and filed in June 2018. This was pursuant to a number of investigations to establish her intra- abdominal anatomy. [17]       He noted that when he admitted the plaintiff on 13 June 2016, she was counselled extensively and arrangements were made to start her on anti-retroviral therapy. When she was readmitted on 14 October 2016 she had achieved an unrecordable viral load. The plaintiff was taken to theatre on 17 October 2016 where the fistula was repaired as well as the incisional hernia and she was discharged 11 days after surgery. He indicated that she had significant intra-abdominal adhesions which put her at risk for future adhesions but concluded she would recover completely and would be able to perform the normal functions of life as the stoma was closed. The plaintiff was not seen by him since 2016. [18]       Dr Max Bennun, a gynaecologist and obstetrician, prepared a report dated 2 February 2015. He incorrectly referenced that she underwent a caesarean section at Addington Hospital and in addition opined that she was left with ‘a permanent colostomy’. In addition, he indicated in his report that apart from experiencing morbidity, pain and suffering, she has had numerous major operations, lost her fertility, her family life, her social life, and also lost her employment. No updated report or any updated opinion has been provided by him apart from the one he submitted in February 2015. [19]       A report from a further gynaecologist and obstetrician, Dr Stefanie Hinz, dated 8 February 2016, indicated that the plaintiff had been diagnosed as being HIV positive, but she was not taking anti-retroviral medication when she saw her in February 2016. At that time the plaintiff was undergoing treatment for depression, was able to engage in sexual intercourse although uncomfortable and that this had not had an impact on her relationship with her partner and that she was unemployed. She concluded that although she suffered from chronic abdominal pain and was dependent on painkillers, which impacted on the quality of her life, this ‘surprisingly had no negative influence on her sex life.’ At that point in time she concluded that there was no evidence that the plaintiff's current gynaecological health had been compromised by the incident in relation to the retained swab. [20]       The gynaecological examination was normal and there did not appear to be any complications. The plaintiff's main concern, observed by her, centred around the colostomy and its effect on her social life and body image. She deferred to a psychologist in this regard. The chronic abdominal pain, which the plaintiff suffered from, she reported impacted on her quality of life but ‘surprisingly had no negative influence on her sex life’. She indicated that she was not able to assess the plaintiff's current and future fertility prospects as the plaintiff indicated she would not be interested in having any more children. Based on her assessment, she concluded that there was no evidence that the plaintiff's current gynaecological health was compromised by the incident relating to the retention of the swab. No further or updated report was obtained from Dr Hinz. [21]       Ms Corina Avni, a physiotherapist, filed reports dated 3 February 2016 and 2 April 2016, after having assessed the plaintiff on 25 January 2016 and 2 April 2016, respectively. I may add that the April 2016 report was only filed on 19 June 2018. In her initial report she focused on the plaintiff's pelvic function as this was her area of expertise. At the time of the initial consultation with the plaintiff in January 2016, the main complaints related to the stoma site, bladder function and bowel function because of the stoma. The plaintiff reported that her partner was older than her and their relationship is not based on sex and they did not have sex often, less than once every two months. The plaintiff also reported that she had no libido and did not want to engage in sexual activity given her revulsion due to the stoma bag. [22]       She also reported to Ms Avni that she was HIV-positive but her partner did not know and they were utilising condoms. The plaintiff indicated that she refused to take ARV's as she felt ill having, alluded to a previous bad experience when she had taken them. The plaintiff reported that she was unable to work since the birth of her daughter, given the incident and was upset as a consequence of having contracted HIV from the father of her child. She concluded that the plaintiff's functioning could not be improved given the permanent stoma and that her bladder would deteriorate. She made certain recommendations relating to stoma care and management, a dietician, an electronic reclining bed, exercise therapy and hydrotherapy, manual therapy to mobilise scar tissue and access to psyche services possibly support groups. [23]       Her addendum completed in April 2016 and filed in 2018 made additional recommendations relating to manual therapy to mobilise viscera and a small step stool for her toilet. She indicated that at the time the plaintiff indicated the stoma was permanent although the permanence thereof had been queried by Professor Goldberg. She indicated that given the significant abdominal pelvic scarring she was unlikely to be 100% fully functional and pain-free even after any interventions and measures aimed at scar tissue release that would add therapeutic benefit for the plaintiff. [24]       Ms Avni noted that the plaintiff experienced significant and unrelenting levels of pain associated with her many surgical procedures. She could not perform many of the functional activities of daily life, including standing and walking and sitting and could not exercise. The plaintiff was unable to work since the birth of her daughter and consequent trauma. She spoke derogatorily about the partner who gave her HIV and who is her daughter’s father. [25]       The plaintiff experiences anxiety and depression and is overweight. Ms Avni accepted that the plaintiff suffered from chronic pelvic pain and she was of the view that the limited pelvic function was normal and would not improve given the permanent stoma. The stoma would continue to be a major obstacle and challenge for the plaintiff and her bladder was likely to deteriorate despite her excellent pelvic floor muscle function. This would be largely due to changes in the autonomic nervous system and its effect on bladder control, partly due to the effects of scarring, partly due to behaviour and all the normal effects of ageing. [26]       On 28 August 2018 she prepared a further addendum after a telephonic follow-up with the plaintiff on 17 August 2018. She was asked to provide an updated pelvic function assessment based on the changes in the plaintiff's status due to the reversal of her stoma in October 2016. She was specifically asked to comment on the impact of pelvic dysfunction and associated chronic pain on her quality of life. The plaintiff reported that she still experiences pain across the lower abdomen which is aggravated by sustained positions and movement. She avoids activities and behaviours that aggravate her pain. Her sitting is limited to one hour before needing to move, standing is limited to approximately 10 minutes before needing to sit and walking is limited to approximately five minutes before needing to rest. Her bladder function remains the same, her frequency is severe - twice every hour. She limits her fluids and uses panty liners. Her bowel function is still with a frequency of 3 to 4 times per day of loose stools. She has faecal incontinence occasionally, usually when menstruating. [27]       The plaintiff is no longer suicidal but her life is very difficult. She expressed sadness and frustration that all medical professionals are trying to tell her what is right and no one listens to what is wrong. She is disturbed by her scars and embarrassed about her body and hides her body. Her bladder function is deteriorating and she is exhibiting increasing signs of decreasing bladder capacity, increasing bladder activity as well as decreasing bladder activity. The contradiction is explained by a disruption in the normal micturition reflexes which govern bladder storage and voiding. Despite the current pelvic floor muscle function, the plaintiff is highly likely to develop disordered bladder reflexes and worsening symptoms as a consequence of scarring and its effect on neural control. [28]       The plaintiff has poor outcomes in respect of her bowel function although same has improved with the reversal of the stoma. As at August 2018 she opined that the plaintiff enjoyed better-than-expected visceral (bladder, bowel and sexual) function given the degree of trauma. Her bladder will deteriorate despite the excellent pelvic floor muscle control. Her bladder problems affect her more than her bowel, which impacts on her ability to socialise. Pain has an impact on her ability to be active and to exercise. [29]       She made the following recommendations, namely referral to a dietician to improve eating habits and learn how to use fibre to influence stool consistency, a referral to sexologist or doctor with interest in sexual medicine, referral to exercise therapy, specifically hydrotherapy, referral to manual therapy to mobilise the scar tissue, referral to physiotherapy to assist with strengthening and endurance training, a referral to pelvic physiotherapy to address female sexual dysfunction and a referral to psychological services. [30]       Ms Avni subsequently completed a second addendum on 21 September 2018 to address concerns raised by the defendant's physiotherapist, Ms Sholena Narain (Ms Narain), in the draft joint minute. [31]       Ms Elise Burns-Hoffman, an occupational therapist, completed a report only. This was based on the report that the colostomy was permanent. The focus of her report related to the plaintiff's occupational history and specifically her work duties, responsibility, tasks and input at the various places she had been employed. This also allowed her to comment on the plaintiff's tolerance for sitting for long periods and her capacity for repetitive listening, speaking and communicating throughout the working day. At the time of her interaction with the plaintiff, the plaintiff's view was that she could not work at all given her physical and psychological condition arising from the incident. [32]       When she interviewed the plaintiff, she was able to undertake all activities of daily living and self-care and drove her own vehicle. She was also able to attend to shopping but was accompanied by someone and was assisted by a helper for domestic duties. The main complaint reported by the plaintiff was the use of the colostomy bag. She was also of the view that it would be impossible for the plaintiff to re-engage in the vocational activities as a telesales clerk at Makro until she felt confident to do so and that the plaintiff's psychological limitations regarding her re- entry to work appeared to be more extensive than the physical limitations at the time of assessment. [33]       She also indicated that it was essential for the plaintiff to be accommodated physically in her workplace, specifically with regard to being seated in close proximity to the bathroom, not having duties involving lifting and carrying or bending, having the flexibility to leave her workstation as required to empty her colostomy bag, being seated in a private space where smell (real or perceived) cannot cause offence to colleagues or customers. She also recommended assistive devices being a shower seat and hand shower, a cubicle at home to enable her to be seated on a wall-mounted shower seat and an adjustable bed. [34]       The plaintiff successfully entering the workplace and/or competing for employment in the open labour market was limited given her qualifications, work experience and existing medical condition. She was of the view that the plaintiff required future psychological counselling and treatment and further guidance in relation to the stoma and diet management. She suggested an adjustable bed to accommodate the abdominal discomfort and the colostomy bag as well as a shower seat with her hand shower to enable the plaintiff to sit while washing her body and avoid wetting the area around the colostomy bag. This included any modifications to her current bathroom, a wall mounted shower seat at the cost of R825 and a hand shower (estimated to be between R479.90 to R759.90). Ms Burns-Hoffman conducted no further updated reports or assessment since February 2016. [35]       Dr Wasserman, a clinical sexologist, completed reports on 7 March 2016 and 19 September 2018. Pursuant to her assessment of the plaintiff on 28 January 2016, she was asked to compile a sexual health medico-legal report to assess the effect of the injury on her future sexual life and future intimate relationships and recommended treatment and costs. At the time the plaintiff made a report to her that she was left with a permanent colostomy and that she had been diagnosed with HIV during her antenatal visits in 2009. The plaintiff reported that she elected not to begin ARV's as there were no clinical indications to do so and had not disclosed her HIV status to her then partner. This, she was of the view, placed her partner at risk as the plaintiff refused to disclose this to him. The plaintiff was of the view this would cause an additional burden to him in addition to her many medical problems. [36]       The plaintiff had reported an incident of childhood sexual abuse at the age of 5. From her interview with the plaintiff, she concluded that given the significant trauma she suffered from the injury, she will presently and permanently suffer from loss of sexual function unless there was therapeutic intervention and her loss of sexual well- being is a consequence of her injury and resultant psychological sequelae. Much of her conclusions were as a consequence of the inhibiting factors as a consequence of the plaintiff having a stoma and the colostomy. [37]       The plaintiff also reported that her current partner is older than her and as a consequence had a low desire to engage in sexual intercourse due to his age. She advocated sex therapy for the plaintiff to treat sexual dysfunction and adaptation to the change in body image as a consequence of the lost colostomy, recommended certain aids to enable the plaintiff to engage in sexual intercourse, therapy for the treatment of post-traumatic stress disorder (PTSD) and development trauma disorder and individual psychotherapy for her daughter. [38]       In her 2018 report, she noted that the frequency of sexual activity had decreased and that the plaintiff’s sexuality had not improved but deteriorated over time and were directly linked to her ongoing severe depressive disorder and PTSD. The plaintiff reported that she has allowed her partner to engage in sexual intercourse with other partners and was of the view that if there was no clinical, sexological, psychological and psychiatric intervention, the plaintiff’s sexual dysfunction would be compounded. [39]       A supplementary report was filed dated 10 September 2018 based on a report submitted by the defendant’s expert Dr SP Moodley. The updated report was supplemented as a consequence of a once off telephone consultation with the plaintiff on 8 August 2018. The plaintiff was assessed for depression using Beck Depression Inventory and her sexual function using the Female Sexual Function Index (FSFI). She also did a comparison with the first FSFI measured on 17 March 2016. [40]       The plaintiff reported that she feels very good now that the colostomy bag has been removed and this has also removed the smell, which she previously endured as a result of the colostomy bag. She has control over her bowel, no faecal leaking although she does wear a panty liner as when she passes wind there is faecal discharge. The most worrying concern of the plaintiff remains her persistent diarrhoea and the need to evacuate many times a day which interferes with her daily life. She is also conscious about the odour she leaves in the toilets at work and has to continuously monitor her food intake. [41]       She cannot control her urine and faecal incontinence and this is also a further reason as to why she uses a panty liner. She indicates that the plaintiff expresses heightened anger at the loss of her once perfect body and avoids the mirror and remains angry at the gynaecologist who robbed her of her body. The plaintiff has indicated to her that her anger has increased. She cannot stand being naked in front of her partner and has persistent pain. [42]       She remains in a relationship with her partner, as he is older and has less demands for sex frequently. She has also as a consequence of her fear of losing him agreed to an open relationship and he consensually engages in sexual activity with other women as well as sex with the plaintiff. She continues to have a close relationship with her daughter. [43]       The Beck Depression Inventory is the same and indicates a major depressive disorder. The results of the FSFI show that the plaintiff’s sexual functioning has significantly worsened when she had a colostomy reversed and across all domains has significantly lower scores. The pain inside her vagina with penal thrusting, Dr Wasserman concludes is due to the comorbidity of low desire/arousal resulting in little or no lubrication. The sexual dysfunctions are directly linked to the ongoing severe depressive disorder as well as the plaintiff’s continued PTSD. Her recommendations remain unchanged. [44]       Dr AM Grizic, a urologist, completed a report in June 2016 pursuant to a medico-legal examination of the plaintiff. His report focused on the bladder and urinary complaints of the plaintiff and noted that despite the complaints she had in relation to the urinary frequency and urgency, she had not sought treatment. Pursuant to an investigation, he noted that her bladder was intact and she had good bladder function and the degree of frequency and nocturia she complained of was related to her high fluid intake. [45]       The minor reduction in her maximum bladder function capacity was due to the many pelvic surgeries which could be improved with the use of medication. Such medication would lessen the degree of urinary urgency and minor urge incontinence and that there was no indication that her bladder function would deteriorate in time and the use of medication coupled with a reduction in her oral fluid intake would normalise her bladder within six months. He did not anticipate any further bladder surgery. He advocated for the use of medication. [46]       Dr Grizic completed an addendum on 28 August 2018 to provide an update on the plaintiff's bladder function as a consequence of the closure of her colostomy. He indicated that she complained of urinary frequency, urgency and nocturia and there was no change since the closure of the colostomy. He reported that she had not taken any treatment for her problem, nor had she decreased her high fluid intake and drank liquids excessively. [47]       He was of the view that she did not require surgery and remained of the view that her bladder function would not deteriorate. He advocated the use of medication, Vesicare, which the plaintiff had not taken despite the recommendation in his initial report nor had she reduced her daily oral fluid intake. He noted that until she limited her daily oral fluid intake and took the medication he recommended, he was not in position to make any projection on her long-term future treatment. [48]       Ms Mignon Coetzee, a clinical psychologist, completed a report in February 2017 pursuant to a consultation with the plaintiff on 26 January 2016. She noted that the plaintiff had been diagnosed as HIV positive whilst pregnant in 2009 and only commenced anti-retroviral treatment in late 2016. She was asked to comment on the plaintiff's psychological functioning subsequent to the incident and her premorbid emotional state and possible vulnerabilities. [49]       She also conducted a follow-up telephonic interview with the plaintiff on 11 February 2017. She noted that although the plaintiff did not have a prior history of mental illness she had previously experienced psychological trauma relating to a mugging which occurred in 2004 and the death of her brother in 2007. She indicated that after her discharge from hospital the plaintiff was unable to bond with her minor daughter as it was difficult to pick her up given her stoma bag and the effects of the various operations she underwent. [50]       Her relationship with her partner concerned her given the colostomy and the rumbling bowel noises and odours associated with it. The plaintiff experienced severe pain and fatigue on an ongoing basis and in 2016 was still notably affected by what had happened in 2009 and became tearful and distressed. She was prescribed antidepressant medication but was despondent and tearful. [51]       She began a new romantic relationship but was embarrassed about the colostomy bag and stoma. She was self-conscious about the rumbling sounds caused by bowel movement and smell associated with her body. She also did not socialise for the same reasons. The plaintiff reported that she was unemployed since the incident and previously enjoyed a successful career. She has not sought alternative employment as she did not have the psychological resilience to take on the stress of seeking employment or to be involved in the world at large. [52]       The plaintiff expressed excitement and optimism after surgery in October 2016 for the removal of the stoma and the repair of the fistula and incisional hernia. She had stopped taking her antidepressant medication in 2017, but felt more depressed. She diagnosed the plaintiff as suffering from a major depressive disorder and mood disorder. She recommended that the plaintiff would benefit from psychotherapy and recommended approximately 30 sessions but was cautious that she may relapse at times of increased stress. [53]       She had a subsequent video call with the plaintiff on 16 September 2018 at which time the plaintiff reported she had returned to work and accommodated in a sedentary position but still experiences emotional stress as a consequence of her poor body image. She experienced gastro-intestinal sensitivity and discomfort and uses the bathroom far more frequently. The plaintiff reported that she experienced bladder dysfunction with increased urinary frequency, urgency and urge incontinence. The plaintiff suffers from low self-esteem and has an extremely negative body image. Her sexual interest and desire has been low. As a consequence, she allows her partner to have intimate relationships with other women. [54]       She was of the view that the plaintiff should be referred for long-term supportive psychotherapy aimed at addressing her anxiety-related and depressive symptoms and assisting her coming to terms with her altered physical state, that she be treated by a psychiatrist and undergo pharmacotherapy as part of an ongoing treatment regimen. She was of the view that the plaintiff's prognosis was poor and that a full recovery was improbable and that relapse was inevitable. [55]       Dr Dawie Malherbe from the firm BMD Career and Industrial Psychologists completed three reports relating to the plaintiff's earning capacity. These were on 12 April 2017, 5 October 2017 and 5 October 2018. I say no more in relation to these reports at this stage for reasons which will become apparent later in the judgment. [56]       Dr Lionel Jedeikin, a plastic and reconstructive surgeon, completed a report dated 16 March 2017, which was filed on 19 June 2018. He noted the extensive scarring on the anterior abdomen and right lower abdomen. He recommended a revision of the anterior abdominal scar as well as the right lower abdomen scar and was of the view that extensive surgery would be undertaken. The costs of revision surgery at the time was estimated in the amount of R167 500.00. His report however revealed the stoma had not been closed as he referenced a colostomy bag in situ. [57]       Ms Sonia Hill, an industrial psychologist, completed two reports subsequent to the trial being adjourned in 2018 given the challenge to Dr Malherbe’s qualifications and expertise. She completed an initial report on 18 January 2019 pursuant to a consultation on 20 December 2018, and a second report on 10 April 2023 after a consultation on 31 March 2023. As she testified at the trial, the contents of her reports and opinion will be dealt with under the summary of evidence. Defendant’s experts [58]       The defendant also instructed its own experts, namely a clinical and educational psychologist, Dr EA Chohan, who compiled a report on 23 July 2018, Dr SP Moodley, a specialist obstetrician and gynaecologist and sexual medicine physician, who consulted with the plaintiff in July 2018, Ms Helene Prinsloo, an occupational therapist, whose report is dated 5 May 2018, Ms Narain, a physiotherapist, whose report is dated 15 December 2017, Professor Joey Buitendach, an industrial psychologist, whose report is dated 5 October 2018 and Dr Gideon de Kock, an additional industrial psychologist, whose report is dated 23 August 2019 and addendum 24 May 2023. [59]       I do not propose to summarise the reports of the defendant’s experts as I have done with the plaintiff’s experts for reasons, which will become apparent and as they are a matter of record. What is evident from the reports of the defendant is that the collateral information provided by the plaintiff differs to that which she provided to her own experts. In addition, as will become evident by reference to the joint minutes, the defendant’s experts differ in relation to the diagnosis of the plaintiff and proposed treatment and prognosis for recovery. Joint minutes [60]       Joint minutes were concluded between the relevant experts in the respective like disciplines. The occupational therapists on 17 August 2018, the obstetricians and gynaecologists on 17 September 2018 and physiotherapists on 1 October 2018. The reports date back to 2016 and 2018 and the joint minutes of the experts to 2018, making such reports between 5 to 7 years old. The exceptions are the addendums of Ms Hill and Dr de Kock. I will return later to the joint minutes. The evidence [61]       At the hearing of the matter on 14 November 2018, Mr Botha SC who appeared for the plaintiff confirmed that the plaintiff would not testify and intended calling two witnesses namely Ms Coetzee, a counselling psychologist and Dr Malherbe, an industrial psychologist. The defendant’s industrial psychologist, at the time, Professor Joey Buitendach and Dr Malherbe, had completed a joint minute concerning their findings. [62] It subsequently transpired that the defendant was under the impression that the plaintiff’s expert Dr Malherbe was an industrial psychologist and learnt shortly before the trial recommenced that Dr Malherbe was not an industrial psychologist. [1] [63]       In addition, the plaintiff, through her legal representatives attempted, to file an addendum to Ms Coetzee’s report on Monday, 12 November 2018, to which the defendant, in my view, rightly objected to the use thereof. Mr Botha placed on record that they would then proceed with the trial without the addendum being admitted and would lead Ms Coetzee’s evidence confined to the reports already served and filed. The expertise of the witnesses was not challenged save for that of Dr Malherbe as he testified as an industrial psychologist. [64]       Ms Coetzee, a clinical psychologist, whose expertise as such was not disputed, testified relating to the initial report she completed dated 12 April 2017, nine years after the incident and an addendum report dated 21 September 2018. Although she prepared a third addendum report, as set out above, this was not handed in as it was objected to. She confirmed that she practices in the area of clinical psychology and neuropsychology although she is not a registered neuropsychologist. [65]       At the time of her initial assessment in 2016, the plaintiff was still fitted with a stoma bag but subsequently when she had a telephonic consultation with her in February 2017 the stoma had been closed. The focus of her evidence was on the impact of the incident on the plaintiff’s capacity to continue working. She testified that she concluded that one had to look at the plaintiff holistically when diagnosing her condition and there were three aspects in relation to her functioning that warranted consideration. [66]       The first was the physical aspect which had been addressed in the expert reports and joint minutes, the second was a psychological aspect, which was the subject of both her and Dr Chohan’s assessment, and then, the third aspect was the cognitive element which was outlined in Dr Chohan's report as she did not investigate this herself. These three aspects she considered were inextricably linked and mutually compounding. [67]       She concluded that whilst the plaintiff believed she was physically ready to return to work in her opinion, this would not be as easy as the plaintiff imagined. The plaintiff would require close psychological monitoring as seven years of emotional compromise could not easily be undone. It became evident during the course of Ms Coetzee’s evidence that the basis for objecting to the third report was that what was reported to her by the plaintiff constituted a deviation from the joint minute, which existed between Ms Coetzee and Dr Chohan. [68]       In her follow-up report, she conducted a video telephone call with the plaintiff on 16 September 2018. Her conclusion was that what was reported by the plaintiff to her was that her physical condition was still difficult as she still had a poor body image and experienced pain over her lower abdomen. The pain has increased since her return to work and she is fatigued. In addition, the plaintiff reported that she still experiences gastro-intestinal sensitivity and discomfort with an increased urinary frequency, urgency and urge incontinence. [69]       She concluded that the plaintiff still remained psychologically vulnerable. Her evidence also focused on the pain component of the plaintiff's condition, which influenced her emotional well-being, but also her physical well-being in that previously she was able to rest during the day, which lowered her pain levels, now she is required to sit for extended periods of time with less opportunity to stretch and rest. Consequently, her pain level has increased, which has caused a decline in her emotional functioning. She testified that the plaintiff was enormously fatigued and this was as a consequence of the chronic pain, which she experiences, which tires her physically but also emotionally as it kept her awake at night. [70]       Another area canvassed in the evidence with Ms Coetzee by the plaintiff’s legal representative was the gastro-intestinal issues, which the plaintiff experienced and the resultant external scar. Despite the repair of the stoma, she still has a very sensitive bowel and frequent diarrhoea and flatulence. Ms Coetzee indicated that the plaintiff reported that this is an issue at home, as she shares a bed with her daughter who complains about her noisy tummy. In addition, at work she uses the bathroom more frequently to empty her bowel, which causes embarrassment because other persons use the bathroom. She confirmed that the plaintiff had a fear that her frequent bathroom visits would cause a problem for her with her employer, however, conceded that her employers are aware of the situation and have not raised it with her. [71]       In relation to her physical condition this impacts on her experiences at work as she is unable to participate in outings with her colleagues given her gastro-intestinal issues and pain. As a consequence of her employer accommodating her in her work environment she feels isolated, alienated and ostracised from others as she works alone. She opined that if she were merely treating the plaintiff psychotherapeutically she would advise the plaintiff not to be employed as her health and mental well-being was in jeopardy. [72]       During cross-examination, she confirmed she was instructed to assess the psychological sequelae associated with the medical incident under review and was not asked to consider the effect of the sequelae on the plaintiff's employment prospects or employment capacity. She acknowledged that counsel for the plaintiff prefaced her evidence on the basis that she would testify relating to the earning capacity of the plaintiff as a clinical psychologist. Ms Coetzee confirmed that her report does not specifically deal with that aspect and conceded that it is unusual for her to deal with employment and earning capacity in her report as a clinical psychologist. She also conceded that as a clinical psychologist she did not know that employment would be the issue in this matter. [73]       Ms Coetzee confirmed that she did not perform any tests on the plaintiff and did a clinical evaluation. She also did not complete questionnaires nor did she perform cognitive testing. She confirmed that ordinarily, as a clinical psychologist, she would have performed tests. However, when she does a clinical evaluation she does not perform any tests. She was also not in a position to deal with any cognitive testing, as she has no experience with the tools used to determine such. [74]       When confronted with the contents of Dr Grizic’s report, namely that the plaintiff had good bladder function, and the degree in frequency was in part due to her high fluid intake and he recommended medication, she indicated that she had read his report but did not deem it necessary to canvas with the plaintiff whether she was taking any other medication suggested by Dr Grizic and whether she had limited her daily fluid intake. [75]       The next witness to testify was Dr Malherbe. His evidence will not be summarised given that Mr Botha conceded no weight could be attached thereto and it had to be disregarded. [76]       Ms Sonia Hill (Ms Hill), a qualified industrial psychologist, (who replaced Dr Malherbe) testified that she has approximately 25 years’ experience dealing with individuals who have suffered trauma. She is qualified as a job evaluator and in various systems in terms of job design and remuneration. She prepared her original assessment in December 2018 and subsequently did a report on 18 January 2019. She, subsequently, was requested in February 2023 to prepare a supplementary report. The plaintiff drove herself to her rooms on 31 March 2023 and she reassessed her and provided a supplementary report dated 11 April 2023. [77]       Subsequent, to her completion of her supplementary report, she was requested to contact Dr de Kock and request him to do a joint minute on 26 April 2023. She did not send him her supplementary report but her assistant received an email in response from him on 27 April 2023 in which he declined her request to prepare a further joint minute. He was aware that she had compiled a supplementary report. She confirmed the contents of both her first and supplementary reports. [78]       The executive summary in Ms Hill’s report contains a summary of the plaintiff’s pre-incident and post-incident scenario together with her physical difficulties, and psychological functioning. Ms Hill was of the view that the plaintiff continued to function at a diminished capacity and if she remained in her current work position there would be no progression and consideration ought to be given to a higher contingency. When compiling the supplementary report, she considered the reports of other experts as well as the plaintiff’s leave record as referenced in her report. There are indications of extended sick leave and some experts suggested a curtailment in her working life. She was of the view that all this could be catered for by means of a higher than normal contingency. [79]       She confirmed that in the preparation of her initial report as well as the supplementary report she was provided with the documentation set out in paragraph 2 thereof. In addition, various payslips were provided from the plaintiff’s employer, Makro SA. The further documentation made available to her, and which she included when compiling her supplementary report, were the medico-legal report of Dr de Kock dated 23 August 2019 and various payslips from Makro SA for 2019, March 2020, November 2021, December 2022 and January, February and March 2023. [80]       She was advised by the plaintiff and provided with email correspondence between Massmart Holdings and Alexander Forbes dated 10 February 2017 which indicated that the plaintiff whilst on disability leave post the incident received 75% of her basic salary, until she was fit to resume work on 22 May 2017. There was no confirmation from the employer either in the form of figures or documents relating to exactly what income she lost whilst on disability leave. [81]       She confirmed that at the reassessment in March 2023, she only conducted the following assessment battery and did not redo the following tests being the behavioural assessment interview, the cognitive assessment being the standard progressive matrix and an emotional assessment being the Beck Depression Inventory (BDI) and the Beck Anxiety Inventory (BAI). She noted that the plaintiff’s emotional status appeared to be fragile and the plaintiff was very emotional throughout the assessment and at times cried uncontrollably. This information was not verified against collateral. [82] She had done a career assessment previously for the plaintiff as an invoicing clerk and she did not redo it as the plaintiff fitted in perfectly with such self-assessment. The BBI and BAI [2] remained largely unchanged and the plaintiff reported that in 2003 she was robbed and hit on the head with a firearm, lost consciousness and treated overnight at Crompton Hospital. After her previous assessment of the plaintiff in December 2018, in June 2022 she was admitted to Inchanga Mental Health Hospital for 21 days for depression and anxiety following the floods and losing her home. [83]       The plaintiff reported she felt a lack of sympathy and understanding from her employer and reported that she had been booked off work for six months but not given any anti-depressants. The plaintiff reported that she returned to work in December 2022. [84]       In relation to her body image, she indicated that the plaintiff was involved in two relationships but no longer wants to be in a relationship and has a poor body image. Ms Hill conceded that strictly speaking this fell within the realm of expertise of a clinical psychologist. The plaintiff indicated that subsequent to her matriculating she completed a national diploma in retail business management from DUT with effect from 31 January 2003. Had the incident not occurred she expressed a desire to complete a three-year retail course offered by Makro SA in order to become eligible for promotion. She confirmed that one would have to apply to be a store manager to do such course and only five students were selected for the course on an annual basis. [85]       She could have applied and gone through a selection process and have been selected. This was confirmed by Dr de Kock who indicated that the plaintiff had the capacity to do the course and if an opportunity presented itself she could have done the course. She was hardworking and met the minimum requirement to complete the course. She confirmed that when she returned to work in May 2017 she was placed in a different position as a cash bank clerk. [86]       This was more of a sedentary position and she was there until the end of October 2018 when she moved back to her former position of a telesales clerk. This was an internal arrangement with her employer who wanted her back in the position as the person who was in the position was not coping. There was no change in her salary or income. She remained in that position until the July 2021 unrest and moved to Cornubia, which was a small store. Her employer also gave her the option to move to Amanzimtoti, which she accepted as her daughter schooled there and she could see her on a more regular basis. She was running the telesales section in Amanzimtoti on a smaller scale. [87]       Then came the April 2022 floods, which washed her house away. There was an issue at as to why she did not report for duty after the floods and arrived not in uniform. These triggered huge emotions in the plaintiff and she felt her employer was heartless and phoned the Springfield office to ask for her job back. Her previous boss indicated that she could come back. [88]       She was assessed for severe depression and admitted to Inchanga for six months on full pay by Makro Springfield. A new set of payslips were provided, which showed that her April income was nil. This Ms Hill indicated was due to the fact that the staff were on strike as they had received no salary increases for a number of years and her salary remained unchanged. Lack of increases is unrelated to the incident. [89]       According to her report to Ms Hill, the plaintiff indicated that she had not gone for treatment, as she could not afford it despite the fact that she has medical aid. Ms Hill conceded that she did not canvass her affordability issues with her but there would be no reason why she was not receiving treatment as she was on medical aid. She indicated that the nature of her work involved her walking up and down aisles to check that the person who pulled the stock had done so correctly. It is not a new position but the way Makro was doing the job is different. [90]       Ms Hill indicated that the plaintiff has a very sympathetic employer. They accommodate her and if she left or resigned the plaintiff would not secure similar employment. She confirmed that there is nothing from the plaintiff’s employer to say it was a problem for her to take a toilet break, she did not raise it with her pertinently but said she was not allowed to use the customer toilets but was using them. She indicated that she was experiencing difficulty with her heart. She was treated as an inpatient in April 2017 due to stress and her elevated stress level negatively affected her heart function. [91]       She confirmed that she and Dr de Kock had postulated a pre-incident scenario, which differed relating to the progressions. They agreed that the plaintiff could have entered the managerial programme, however differed as to when she would have done so and the time period in which she would have progressed and the level to which she would have progressed. [92]       After the evidence of Ms Hill on 29 May 2023, the plaintiff then testified despite it being formally recorded in 2018 when the trial commenced and the plaintiff’s first two witnesses testified that she would not be testifying. It was confirmed at the commencement of her evidence that the evidence of all the expert witnesses who testified before her had been canvassed with her. She confirmed that although her home language was isiZulu she was fully conversant in English and testified in English. She had travelled from Durban to Pietermaritzburg the afternoon before to testify and resided in the same hotel as her counsel and instructing attorney. [93]       She confirmed that on her arrival on 29 May 2023 and prior to testifying, she had consulted with her representatives. Mr Botha had handed her two expert reports, one by Ms Hill of April 2023, and a report of Dr de Kock, the defendant’s industrial psychologist of 2019. She confirmed that she had consulted with both experts at the time of the completion of the respective reports and further consulted with Ms Hill this year at her offices. The plaintiff confirmed that she was requested to canvass both reports with specific reference to the complaints reported to these two experts as they were recorded in their respective reports. She was asked to specifically indicate which portions thereof she disagreed with. [94]       She indicated that she had done so and during the course of her consultation she only came across one error in Ms Hill’s report which incorrectly recorded her date of return to work. She confirmed that she had actually returned to work on 3 December 2022. She was asked to confirm the correctness of the information, and the complaints, which she provided, in the reports and confirmed that what was contained in the reports was correct. She was then led on various aspects, which arose during the course of cross-examination of Ms Hill by Mr Pillay on 29 May 2023. The plaintiff confirmed that she had discussed the aspect of her HIV status at the hotel in the morning with her legal representatives and testified that she was on medication for ARV’s for the longest time. [95]       She also confirmed that she had undergone an operation relating to the closure of the stoma in 2016. Prior to the operation, the medical staff had questioned her about her viral load and medication. She did not consider that there was no problem with her viral load, but the hospital wanted the viral load reading to be undetectable before they performed the operation. She had been informed by the medical staff that the operation was going to be a complicated one so they wanted everything to be in order. They ran tests before proceeding with the operation to close the colostomy. [96]       The plaintiff testified that she was on medical aid and that her medical aid contribution was deducted from her salary. In answer to a question as to when she became a member of the medical aid, she indicated that this was when she returned from disability leave in 2019 or 2020. At the time, she was compelled to join the medical aid scheme. Although she was employed by Makro and gave birth to her daughter in 2009, she was not a member of a medical aid. When asked as to the reason why she did not join a medical aid, she indicated that at that time medical aid was reserved for the high earners and those in a high managerial position. At the time, she was not a high earner nor was she was employed in a managerial position. This was the reason why she made use of government hospitals. [97]       Prior to her hospitalisation to give birth and before she became pregnant, the position at Makro relating to promotion in 2008 and 2009 was the following. She confirmed one has to undergo a three-year in-store course in a retail programme. She had a diploma from DUT. When she joined Makro she knew she wanted to be in a managerial position, but could not just start off immediately as a manager. In terms of Makro’s policy, one must have participated in the programme to qualify for promotion to Manager. She then approached her executive manager for the food department to participate in the programme and he agreed. [98]       At the time of her approaching him, she did not know that she was pregnant and company policy did not allow her to participate whilst pregnant. She did not formally apply to participate in the programme because she found out she was pregnant. [99]       She confirmed in answer to a question by Mr Botha that her pregnancy put an end to her plans to participate in the programme. She applied for six months maternity leave but was supposed to take twelve months. Her plan on her return from maternity leave was to do the managerial programme. She confirmed that after the incident, she did not report to work for a period of eight years, but returned to Makro after the period and the closure of the stoma. [100]    During the eight-year period she was away from work, she was a first time mum and was in and out of hospital and underwent quite a few surgical procedures, some of which were successful and some were not. She confirmed that prior to certain operations she had to wear a stoma. Eventually a doctor in Cape Town repaired the stoma in 2016. After the stoma was closed, she was quite positive everything was going to return to normal. [101]    However, this did not happen. The depression and anxiety never stopped and her anger grew. She confirmed she was on medication to treat the depression and anxiety prescribed by a doctor in Pinetown. She only recollected two of the medications she was prescribed, being something to ease the depression, epilim, and something to help with sleep, being trepiline. She confirmed that initially the hospital supplied her with panados for pain. When the panado did not help she then received voltaren muscle injections from her GP. The trepiline was to help her sleep but it did not help her. She took trepiline and epilim because the doctor told her that both these tablets would help her deal with her severe depression and anxiety and informed her that the trepiline would help her with her insomnia. [102]    She confirmed that she was in a lot of pain specifically at the operation site and the stoma site in the abdominal area and her lower back. She confirmed that when she was at work and was active because she is in the retail industry where she is required to be in and out of the office, she was not in the office all the time. She would be assisting her clients, who come to the store, or telephone and email her. She finds it difficult to do. She needs to be hands on and she needs to be active all the time but most of the time she is dragging and forcing herself to work because of the pain. She confirmed that at the time of the incident she was in telesales and for a short while was moved out of that section but then returned to telesales. [103]    Prior to the incident when she was in telesales, she enjoyed her work, she used to be a bubbly person, friendly and was loved by all her customers, because of her performance. Presently in her current condition, she finds that her work is draining her and if she was given an opportunity she would resign if she did not have a child. She indicated that if she did not have a daughter to maintain her choice would be to work at home, maybe have a laptop and work from home and submit. The plaintiff testified she does not like her job and the reason why she hates her job is because she is not the old Z[...] that she used to know and the Z[...] that could handle anything in her department. She confirmed that she still has a problem with her bowel and a urinary problem. [104]    She was aware that there are certain treatments and further surgical procedures, which the experts have referred to in their reports, which they have recommended that she can have. She also indicated that she was aware that she could have treatment to help her have a normal relationship with someone of the opposite sex and restore her sex life. She indicated that she would like to have the treatment and the assistance. When questioned as to why she has not started it, she indicated that she has not started with anything because she thought the matter was to end years back but she can see the matter is prolonging. In answer to a leading question from Mr Botha, she indicated that as she stood in the witness box knowing about the treatment and wanting to undergo the treatment she wanted the case to finish. When asked as to the reason why, she indicated she needed funds. [105]    During cross-examination by Mr Pillay, she confirmed that she was aware of the medication she could take to assist her but needed funds. But for the funds, she would be taking the medication. She also confirmed that she was presently on medical aid and only became a member of a medical aid in 2019/2020. When asked as to whether there was any conceivable reason why the medical aid did not fund the medication to alleviate her symptoms at present, she indicated that the medical aid did not cover everything especially the plastic surgery she was more interested in, specifically the skin graft. It only covers certain things like normal procedures not big things. She confirmed that it did not cover elective procedures. When it was pointed out by Mr Pillay that he was confining himself to her evidence in chief in relation to medication, she confirmed that in fact her medical aid did cover all the medication including that recommended by the experts, specifically Dr Grizic. [106]    The plaintiff was asked to confirm specifically when she became a member of her medical aid scheme. She confirmed that she only became a member in 2019/2020. The plaintiff’s trial bundle was then handed to her and her attention was specifically directed to page 156, which was her salary slip for 25 August 2017. It was pertinently pointed out to her that there was a medical aid deduction. She confirmed that she saw this on her salary advice. [107]    She confirmed, when put to her by Mr Pillay that she was on medical aid before 2019/2020 in fact as far back as 2017, she indicated that the medical aid did not cover hospitalisation as it was an essential option. When pushed further she confirmed that aside from what was covered she testified she only took out a medical aid in 2019 and 2020 when she was compelled to do so and did not disclose to the court earlier when she testified that in fact she had a medical aid since 2017. [108]    She was asked to clarify what she meant by saying that she had been on ARV’s for the longest time. She clarified that when asked pertinently as to how long she had been on ARV’s she indicated that this was from the time she found out she was HIV positive in 2008. She confirmed that she was on ARV’s since 2008. She could not provide the name of the ARV medication she was taking. She confirmed it was an orange tablet she was taking at night and it was in her other bag. She also testified that she had been using ARV’s consistently since 2008. [109]    Apart from her ARV’s, which she takes one a day at night, she takes the following medication on a daily basis being panado, epilim and trepiline and takes no other medication. She confirmed the contents of Ms Hill’s first report. She could not explain Ms Hill’s report specifically at page 333 where it is recorded that she does not take any medication. When asked about it she indicated as follows, ‘I’m sure she was talking about other medication because she knows I am HIV positive.’ When it was pointed out to her that that was not correct and that Ms Hill was surprised that she was HIV positive and testified that the plaintiff did not inform her and she did not know, she then responded by saying ‘I’m not sure if I disclosed it, I thought I disclosed it to her. I’m not hiding it.’ [110]    In addition, she was also referred to Ms Avni’s report in which she recorded, ‘She is HIV positive, her partner does not know. They are condomising. She refuses to take ARV’s.’ She indicated that she is on ARV’s and has been on ARV’s since 2008. [111]    When it was pointed out to her that the reports do not record that she was on ARV’s and she indicated that she did not want to take them, she confirmed eventually she did in 2016 to have the operation. She took them in 2008, then defaulted because she did not want to take them as she was blaming her partner for infecting her. When asked as to whether or not epilim was for epilepsy, she indicated that she did not know and all she knew was that all the medication she was taking was prescribed by a doctor. She is not a sickly person so when they gave her the epilim she took it as the doctor told her it was for her stress and to help her to sleep. She could not identify who the doctor was and merely knew it was a male doctor in Pinetown. She was referred to him by her GP or the hospital, she could not recollect but confirmed that he was a male clinical psychologist and she did not go and see him on her own. [112]    She was told by the clinic to get her medication from there and she did not know that he had a specialisation and just assumed he was a normal GP. She could not remember the date or the year when she first saw him but she indicated she thought it was at the time she had the stoma operation. She confirmed that there was no record of this in any of the medical records or in the exchange of documents between her attorneys and the defendant’s attorneys as her attorneys never asked her if she attended a doctor. [113]    She confirmed in relation to her evidence regarding her promotion that her manager had reported to her that she could apply. She did not apply as she was pregnant. She has not since then applied to the programme because of the depression she was suffering from and she just wanted to do her current work and return home. Although at present, she would still qualify for admission to the programme, she is not interested because of her emotions and state of mind. She agreed that her current track record at work indicates that she had been an excellent candidate for the programme. [114]    In fact, she confirmed that Naledi at Makro Human Resources department (HR) who spoke to Dr de Kock confirmed that there had been no complaints from her or from her superiors and that she ought to apply. She confirmed that she has not made any complaints to HR but complained to her general store manager, Ms Suanne Jones. She indicated that the general manager (GM) did not speak to Naledi but spoke to her executive manager, Mr Satish Beharie. Mr Beharie informed her of the meeting with Ms Jones and indicated they will offer her an accommodated position than what she was in because they knew the history of the operations and because she could not take any more stress. She did not know exactly when the conversation took place but they did change her position at work. [115]    She indicated that this evidence did not accord with any of the reports as, as at August 2019 the HR department had not received any complaint from her managers. She agreed with what was recorded in Dr de Kock’s reports specifically in relation to HR but indicated that she had spoken to her GM. She also indicated that despite what Naledi says about her being a good candidate, Makro does not fully recognise the diploma that she has and would not accept it but insisted that she must do the in-store programme. [116]    In relation to her report to Ms Hill regarding her bladder weakness and her use of the customer toilets, she confirmed that there were no complaints about this and her employer has not said anything about it, however she is not allowed to use the customer toilets, which she uses as they are nearer to her. [117]    She was referred to the report of Dr Grizic, specifically his conclusion in which he has indicated that her problem in relation to this is her high fluid intake and her failure to take Vesicare 5mg per day. He indicated that the urinary frequency is mostly a night time problem and during the day she was able to work and is not incontinent. He maintained that her bladder function did not deteriorate in time and the use of medication to desensitise her bladder, plus a reduction in her oral fluid intake, will normalise matters. She confirmed that the problem in relation to her bladder was solved by taking medication, without taking the medication, the problem is not solved. She indicated that when she did take the medication it solved the problem but she is no longer taking the medication. [118]    When asked as to why she was not taking medication, her response was the following, ‘It is very unfortunate that the doctors when they discharged me would take me off the medication even the one for some psychological problem. Most of them discharge me and take me off the medication.’ She confirmed however that when she is on medication it stabilises the problem and she is ok and it minimises it. She indicated that the medical aid, which she is on, does pay for the medication that she is required to take. [119]    She indicates that it was not that she was not taking the medication, she is angry and she is tired, she does not want to take the medication and she is taking the medication for, ‘someone that made a mistake on me for medical negligence. I’m standing here. I feel that there are people who should be standing here who left a swab in my tummy, they should be cross-examined but it is me standing here.’ She subsequently confirmed that her medical aid covers the medication. She also confirmed that she was paid R1 million in October 2018 for her general damages. [120]    In relation to her perceived heart function problem, she confirmed that there were no medical records, which speak to this. She thought that it arose as a result of stress. She did see a cardiologist although she does not remember the exact year or the medication. She confirms that medication was provided to her but it was not helping her and every time she returned to the cardiologist, he informed her that she was not taking the medication correctly. She stopped going to him as he was screaming and shouting at her. [121]    She confirmed that in 2020 the country was struck by the Covid pandemic, in 2021 there was the unrest, which resulted in the July riots, and in 2022 there were the April floods. In 2019 prior to the Covid pandemic she confirmed that she was only seeing medical practitioners, which she was referred to by her attorneys. She indicated that it was Ms Hill and Dr de Kock whom she saw. In 2019 and 2020 she saws GP’s and in 2020 a cardiologist. She could not recollect whether she saw any clinical psychologist in 2020. In 2021, she also could not recollect whether she went to see any psychologist or any other medical professionals. Her recollection was that she only saw general practitioners. [122]    In 2022, when her home flooded and washed away, after the floods, she saw a psychologist by the name of Dr Ngcobo from Pinetown. She first went to a GP who sent her to him. She was admitted to hospital by another doctor, Dr Malinga, at the Inchanga Psychiatric Hospital. She was put off duty for six months but was only admitted for 21 days. She was treated by the psychologists, Dr Malinga and Dr Ngcobo, who checked on her every day to have a chat and see how she was. That is what was referred to by Ms Hill in her report. She confirmed that she did inform her attorneys of her treatment at the Inchanga Hospital, there was nothing to hide. [123]    That then was the evidence for the plaintiff and she closed her case. Defendant’s evidence [124]    The defendant elected to lead only the evidence of its industrial psychologist Dr de Kock at the trial. He had prepared an initial report, dated 23 August 2019 after assessing the plaintiff and a joint minute with Ms Hill, dated 17 September 2019. Dr De Kock confirmed he had been requested by Ms Hill to complete a further supplementary joint minute with her after she completed a supplementary medico- legal report, dated 11 April 2023. He declined to do so. [125]    At the time of the request, certain additional documents were made available to him, being the letter of Professor Goldberg, dated 13 December 2016, an addendum by Dr Grizic, the urologist, dated 28 August 2018, and the supplementary report of Ms Prinsloo, dated 22 May 2023. Drde Kock indicated that his reason for refusing was as new information came to light as a result of such reports. Given the contents, he formed the view that his report of 23 August 2019 was outdated and that his opinion was likely to change. Consequently, the joint minute, which he prepared with Ms Hill, dated 17 September 2019, was also outdated and required reconsideration. [126]    Four years had passed since his initial assessment and he was not in a position to provide any supplementary report or participate in compiling a joint minute unless: (a)       he performed a reassessment of the plaintiff; (b)       that the plaintiff be medically reassessed by the relevant medical experts as 14 years have passed since her initial treatment of her by them and (c)        five to seven years have passed since their reports. [127]    Additionally, he was not au fait with the exact physical status of the plaintiff currently. He was aware that the stoma was closed and that in relation to those medical issues, issues were resolved. However, the report of Ms Hill seems to indicate that the plaintiff was complaining about pain and difficulties, more specifically psychological fallout, which in his opinion were not related to the incident. [128]    Having regard to Ms Hill’s report, the plaintiff is coping very well at work and according to the HR Department at Makro there have been no complaints about the plaintiff's work performance. He testified that there was a huge incongruence between her work performance compared to the reported psychological conditions and a clinical psychological assessment and one by a psychiatrist would shed further light on the plaintiff's current condition. [129]    He testified that as an industrial psychologist he is not able to perform such an assessment nor would he venture and do so as his area of expertise as an industrial psychologist is in ‘the domain of optimising human behaviour where other categories of psychology are inclined to focus on remedial and therapeutic therapies to change abnormal behaviour to normal behaviour’. Dr de Kock was adamant that given the nature of the complaints, which the plaintiff has reported, especially to Ms Hill, a report from a clinical psychologist and a psychiatrist were essential and would shed further light on the plaintiff's current condition. [130]    In addition, he indicated that an updated report from the urologist, Dr Grizic, would also be of assistance to confirm that the plaintiff's medical condition has been resolved. During cross-examination, he confirmed that he did not have the updated report of Professor Goldberg from December 2016 nor did he have the updated second report of Dr Grizic. He indicated that given the time which had elapsed and the outdated reports it was preferable prior to him preparing a supplementary report and doing an assessment of the plaintiff, that she be re-examined by experts specifically those whose expertise related to her psychological complaints. [131]    What emanated during the course of cross-examination was that the defendant had not had time to instruct Dr de Kock to do a reassessment of the plaintiff as the plaintiff’s attorneys had only instructed Ms Hill to do a supplementary report approximately a month prior to the reconvened trial in 2023. When questioned about the fact that he and Ms Hill seem to agree on the premorbid scenario in the joint minute, he confirmed that even in relation thereto his opinion could change if he did a reassessment of the plaintiff and if new information came to light. This would change his opinion regarding the uninjured scenario. [132]    He indicated that in the joint minute with Ms Hill, although they agreed that premorbidly the plaintiff was able to do the in-training programme, they differed as to when she would have commenced such programme, the time period over which she would have progressed, and to which level she would have plateaued. Further, now with the additional information, he was of the view that both the physical and emotional state of the plaintiff would have impacted on the anticipated premorbid career path especially if she had a predisposition in terms of depression and this would have affected the premorbid scenario. There are indications of this given the new collateral information, which has come to light. He also confirmed that when he assessed the plaintiff, she had reported to him that she was HIV positive, and was on ARV’s since 2016 and was compliant. He was not aware she was not compliant. [133]    That then was the evidence for the defendant. Analysis [134]    The plaintiff bears the onus to prove that she is entitled to the damages as claimed. In seeking to discharge this onus, as set out above, she led the viva voce evidence of two experts, testified herself and relied on various expert reports and joint minutes completed between experts in like disciplines. [135]    Mr Botha indicated that she would not be pursuing her claims for transport expenses, the costs related to anticipated treatment of her bladder symptoms (Dr Grizic), the costs relating to the risks of complications caused by intra-abdominal adhesions (Professor Goldberg) and the costs that relate to assistive devices referred to by the occupational therapists. [136]    Several problems arise with the plaintiff’s attempts to discharge the onus of proving her damages. I will firstly deal with the viva voce evidence of the witnesses. Ms Coetzee conceded during the course of cross-examination that her diagnosis using the DCM5 was to deal with the psychological sequelae of the incident. Even though she commented on and her evidence appeared to be focused on the plaintiff’s potential earning capacity and her employment, that was not her area of expertise nor her role in terms of her mandate. In the course of her evidence, she was also asked to comment on the aspects of the plaintiff’s early retirement and the plaintiff’s ability to continue in her employment. There were several objections to the admissibility of this portion of her evidence, rightfully so in my view, given her area of expertise. [137]    She diagnosed the plaintiff with chronic depression and a severe adjustment disorder. She testified regarding the employment situation of the plaintiff even though she ordinarily did not do so. Ms Coetzee conceded that all she did in preparing her report and coming to her conclusion in her opinion were clinical interviews with the plaintiff. It would appear that all the information was provided to her by the plaintiff and was not verified by her in any way. She did no testing of the plaintiff and it would appear accepted the plaintiffs say so. [138]    Her findings and her opinion must thus be guarded and viewed with a great degree of circumspection, in my view. I say this in light of the contents of Dr Chohan’s report, which evidences that apart from performing tests and assessments of the plaintiff, he also interviewed her. He also attempted to verify some of the collateral information obtained from the plaintiff. [139]    The plaintiff’s earning capacity and her potential to work in my view does not fall in the domain of Ms Coetzee’s expertise, and I say so, mindful that Ms Coetzee testified that if one considered the overall health and wellbeing of the plaintiff and if she were treating her as a psychotherapy patient, she would advise her not to be employed as this would affect her overall health and mental wellbeing. Of concern regarding her evidence in this regard is the fact that the plaintiff returned to work and has been working ever since, save for periods, which were consequent, ie Covid, the floods and the riots. [140]    The difficulty as well in accepting the contents of Ms Coetzee’s report is that although she indicated she had regard to the various expert reports, it became evident she did not take into consideration the addendums and updates thereto either in preparing her addendum but more so in her preparation to testify for trial. A bundle contained in the court file of documents discovered contains initial reports and addendums to the reports of the various experts. To adequately prepare for trial as an expert she must take into consideration changed circumstances and have regard to any collateral sources. [141]    The record will reveal her responses to the complaint reported by the plaintiff in relation to her bladder and her gastro-intestinal issues. She was referred pertinently to the report of Dr Grizic in this regard and failed to have consideration to the addendum to his report dated 20 August 2018. In addition, she also did not ascertain and canvas with the plaintiff why it was that she did not follow the course of treatment as suggested by him and whether or not she had reduced her daily oral fluid intake. [142]    An expert’s role is to assist the court in coming to a just and equitable award. Experts, despite being briefed, and paid for by a particular litigant, ought to remain as objective as possible and place all relevant information before the court to enable the court to come to a just decision. I am not satisfied that in forming her opinion and placing the evidence before the court Ms Coetzee has done justice in this regard. [143]    Her report is extremely one sided and only contains information provided to her by the plaintiff. In the event of her choosing or electing not to conduct testing, as she testified this is how it is done in Cape Town, then one would have expected her to verify the information provided by the plaintiff like for example simply reading through the reports of all the experts canvassing these with the plaintiff in her clinical assessments, but to also verify the employment issues as reported by the plaintiff should she be desirous of commenting on same. Her comments in this regard and her conclusions in relation to the plaintiff’s employment capacity and prospects must consequently be disregarded in light of the overall picture painted by the expert reports as it is simply not reliable. [144]    Ms Coetzee was called to testify on the level of pain and depression, which the plaintiff was experiencing. The pain and suffering experienced by her fell under the agreed award of general damages already settled by the parties prior to her testifying. [145]    A similar problem arose in relation to the second witness which the plaintiff called, being Dr Malherbe, employed at a firm of Career and Industrial Psychologists. His evidence was tendered as that of an industrial psychologist. It emanated that he was not qualified as an expert to proffer an opinion as he was not a qualified industrial psychologist. [146]    The defendant also placed on record that its expert, Professor Buitendach, would not have signed the joint minutes with him had she been aware that Dr Malherbe was not an industrial psychologist. Given the nature of these proceedings, it was not professional etiquette to question the credentials of a fellow expert and this only came to light when new counsel considered the pleadings and the reports filed and was preparing for the resumed trial in the matter. [147]    In addition, in matters in which he had testified to in court and in which his opinion was accepted, it was not disclosed or made known to the court that in fact he was testifying about matters outside the realm of his expertise, and thus the value of his opinion in relation to the proposed career path and career progressions could not have been accepted and were inadmissible. [148]    The criticism of the plaintiff’s expert to provide reliable expert opinion in relation to the plaintiffs earning capacity and loss of earnings as well as her ability to continue in her employment was the focus of the challenge by the defendant. The reliability of Dr Malherbe’s evidence and his qualifications as an expert in the field of industrial psychology is seriously questionable. He is not qualified to proffer an opinion on the earning capacity and loss suffered by the plaintiff. That he did not have the qualifications as an expert to sign a joint minute with Professor Buitendach cannot be doubted. [149]    I have no doubt that this is the reason why a new expert, Ms Hill was instructed after the adjourned trial and why Mr Botha indicated that no reliance would be placed on his evidence at all and why the court could disregard his evidence in toto. [150] In not accepting the evidence of Ms Coetzee and Dr Malherbe, I am mindful of the words expressed by Seriti JA in Bee v Road Accident Fund where he held the following: [3] ‘ In my view these pronouncements indicate that if an expert witness cannot convince the court of the reliability of the opinion and his report, the opinion will not be admitted. The joint report of experts is a document which encapsulates the opinions of the experts and it does not lose the characteristic of expert opinion. The joint report must therefore be treated as expert opinion. The fact that it is signed by two or more experts does not alter its characteristic of expert opinion. The principles applicable to expert evidence or reports are also applicable to a joint report. The joint report before the court is consequently part of evidential material which the court must consider in order to arrive at a just decision. The court, in such instance, will be entitled to test the reliability of the joint opinion, and if the court finds the joint opinion to be unreliable, the court will be entitled to reject the joint opinion. The court is entitled to reject the joint report or agreed opinion if the court is of the view that the joint report or opinion is based on incorrect facts, incorrect assumptions or is unconvincing.’ [151] Further in Bee , Seriti JA remarked as follows: [4] ‘ The court cannot base its decision on unreliable evidence. There is no valid reason why a court should be precluded from considering and taking into account reliable evidence placed before it. For the court to ignore reliable and credible evidence tendered, in my view, defeats the ends of justice.   The court can only make a proper determination of the appropriate compensation to award if it takes into account all the relevant evidential material and is not restricted to the joint minute of experts, which joint minute is based on erroneous assumptions and incorrect facts  ’ [152] The role of an expert witness was succinctly summarised by the Supreme Court of Appeal in Jacobs and another v Transnet Ltd t/a Metrorail and another [5] as follows: ‘It is well established that an expert is required to assist the court, not the party for whom he or she testifies.[15] Objectivity is the central prerequisite for his or her opinions. In assessing an expert’s credibility an appellate court can test his or her underlying reasoning and is in no worse a position than a trial court in that respect. Diemont JA put it thus in Stock v Stock : “ An expert . . . must be made to understand that he is there to assist the Court. If he is to be helpful he must be neutral. The evidence of such a witness is of little value where he, or she, is partisan and consistently asserts the cause of the party who calls him. I may add that when it comes to assessing the credibility of such a witness, this Court can test his reasoning and is accordingly to that extent in as good a position as the trial court was.”’ (Footnotes omitted) [153] In Schneider NO and others v AA and another [6] Davis J remarked as follows: ‘In short, an expert comes to court to give the court the benefit of his or her expertise. Agreed, an expert is called by a particular party, presumably because the conclusion of the expert, using his or her expertise, is in favour of the line of argument of the particular party. But that does not absolve the expert from providing the court with as objective and unbiased an opinion, based on his or her expertise, as possible. An expert is not a hired gun who dispenses his or her expertise for the purposes of a particular case. An expert does not assume the role of an advocate, nor gives evidence which goes beyond the logic which is dictated by the scientific knowledge which that expert claims to possess.’ [154]    The second difficulty, which arises, relates to the plaintiff’s evidence. The plaintiff testified after all her expert witnesses had testified. It was pertinently placed on record by Mr Botha right at the outset when the trial commenced in November 2018 that the plaintiff would not testify. However, such stance changed after the evidence of the plaintiff's expert witnesses, and particularly after the cross-examination by defendant’s counsel of these witnesses in 2023. It became apparent that the collateral information differed from expert to expert, that some of the experts had not verified such collateral information lending credence to the defendant’s submissions that this constituted hearsay. [155] Of further relevance is the fact that some of the factual information relied on proved to be incorrect. The difficulty that I have in relation to the plaintiff's evidence is the following. First, the reason why in trial proceedings the plaintiff is called to testify first is so that the experts can deal with any change in the facts. This did not happen given the order in which the witnesses were called. Second, the foundation of the evidence of these experts is undermined by the plaintiff testifying after they have testified. Third, what weight can one attach to her evidence when it was placed on record she had been made aware of all the evidence and the criticisms, which arose during cross-examination and her evidence was essentially adduced to ‘close the gaps’. The opinions of the experts are based on different facts and in the absence of updated reports the experts did not have an opportunity to comment on her evidence or any change in circumstance. Once it is demonstrated the facts on which the opinion is based is incorrect, then it must follow that the expert opinion is flawed. [7] [156]    The plaintiff testified over a day in the witness box from approximately 10 o'clock until after the long adjournment with the short break in between. She had standing endurance as she stood throughout her time in the witness box, being during her evidence in chief, cross-examination and during questions from the court. The plaintiff did not, however, impress me as a witness. She was evasive and I gained the impression that she still harboured a lot of anger and blame towards the defendant and its employees and she refused to let go of this and move on with her life. She blamed the hospital staff for what happened and her anger is directed at them. [157]    Her anger is also to some extent directed at her employer, Makro, for insisting that she attends the in-training course. When she testified, she was of the view that as she already has a diploma from DUT, this diploma was in itself sufficient for her to become a Manager and her employer’s insistence on her participation in an internal programme was unwarranted and unfair. [158]    In addition, throughout her evidence, I gained the impression that she did not want to help herself to improve and was content to harbour this anger and self-pity thereby not mitigating her damages. She testified that she stopped taking her prescribed medication for the treatment of her anxiety and depression and those medications prescribed by Dr Grizic, the urologist. [159]    I also did not find the plaintiff to be an honest witness. Certain instances of dishonesty came to light, the first of these was specifically in relation to medical aid. Her initial response was that medical aid was reserved for high earners and those in managerial positions and therefore she did not have a medical aid. She was untruthful in my view, in not being able to testify exactly when she obtained medical aid and said it was either 2019 / 2020. However, the documents, being her salary slip, proved this to be incorrect. She was on medical aid as early as 2017. She further indicated that she was compelled to get medical aid when there was no evidence to support this. [160]    The second aspect on which the plaintiff was dishonest related to her HIV status. She did not report this to Ms Hill and consequently, Ms Hill did not take this into account in relation to the pre-incident diagnosis. She blamed her partner for infecting her and therefore chose not to take ARV's. One is aware that ARV's would certainly have assisted her in her treatment. It is evident from the evidence and from the reports that her surgery was delayed in 2016 due to her viral load and it was only once it had stabilised after she was persuaded to take the ARV’s that her surgery to close the stoma was possible. There is also no explanation as to why such operation was not pursued earlier than 2016. [161]    It is also not clear why she elects not to be medically compliant, not to take medication and not to seek timeous treatment. This in the face of the medical aid paying for all her medication. The only aspect, which she eventually conceded is not covered by her medical aid, is elective surgery which relates to her skin graft and plastic surgery. She indicates that she did not have anything done to improve her scarring and plastic surgery, as she did not have the finances to do so. However, she was not asked as to why she did not utilise a part of the award of R1 million, which she received as payment for the general damages, to obtain some of the surgery, which she required in the interim. Had she done so, in my view, I hesitate to speculate that it would certainly have improved her mental state. Her body image may have been improved, which would have impacted on her depression and anxiety. [162]    It also emanated from her evidence that she is not medically compliant in relation to not only her ARV medication but also refused to take the medication prescribed by Dr Grizic, to assist with her frequent need to urinate, but she also refused to reduce her daily intake of liquids. She also stopped taking her medication prescribed for her depression and anxiety. In my view, the plaintiff refuses to help herself even though there are simple things she can do like taking the medication prescribed. Her failure to mitigate her damages and to want to help herself, is further demonstrated by the fact that she stopped taking the anti-depressant and anti-anxiety medication. This to my view, having regard to the reports and the evidence of Ms Mignon could have to a certain extent ameliorated her mood disorder, but also her depression and anxiety. [163]    That then brings me to an evaluation of Ms Hill's evidence and her report. Regrettably, Ms Hill had no alternative but to concede that the plaintiff did not make a report to her in relation to her HIV status and the fact that she was not compliant in taking her prescribed medication. During the course of her examination in chief she indicated that this would not have affected her prognosis in the event of her condition being stable and the plaintiff being compliant. When confronted with a proposition that the plaintiff was not medically compliant and this may have affected her premorbid scenario she indicated, ‘possibly’ and ‘maybe’. She was reluctant to make any concession in that regard. [164]    What is also evident from Ms Hill's evidence, is that after her initial report in 2019, her second assessment in 2023, was made available to the defendant shortly before the trial reconvened in 2023 and there is no indication or explanation as to why the report was obtained so late when the trial date was already looming. A further difficulty is that despite all the inconsistencies in relation to the reports and the evidence being presented to her, she refused, unjustifiably, in my view, to consider the possibility that her opinions may change. This, in light of the fact that the plaintiff's work condition has stabilised and that she is not in danger of losing her employment. [165]    What the plaintiff reported to her in relation to her use of the public toilets and the accommodation by her employer was viewed in a negative light rather than as providing assistance to the plaintiff. The frequent need for the plaintiff to urinate is not attributed to her condition but rather to her failure to take medication. This would impact on her work environment, something which Ms Hill did not properly consider. [166]    A further difficulty, which arises from her evidence, relates to the testing she did in relation to the plaintiff’s depression and anxiety. In my view, an updated report from Ms Coetzee, a clinical psychologist, would have been more appropriate, given Ms Hill’s area of expertise. She conceded during cross-examination that it was far more appropriate for her to have completed her second report after updated reports had been obtained and after she had been provided with and considered the reports of Professor Goldberg and Dr Grizic, which she had not been provided with. [167]    I gained the impression that what prompted Ms Hill to complete her report in the absence of these was her response during cross-examination, as is evident from the transcript, that this would have delayed the plaintiff receiving compensation as the incident had occurred in 2009 and it was 2023. Regrettably, in failing to do so she has done the plaintiff a disservice as her conclusions cannot be relied on as the factual foundation underlying them specifically that provided by the plaintiff is not correct nor has it been verified. [168]    That then brings me to the evidence of Dr de Kock. In my view, he was the only witness who was prepared to concede that there was a real possibility, which existed, that the plaintiff's condition had changed and updated reports dealing with her condition was necessary. His opinion focused not only on her mental state but also on her physical state and her working environment. This in my view were correct concessions to make to draw to the court's attention. There is always a danger that outdated reports may result in under compensation or overcompensation to a plaintiff. [169]    In addition, Dr de Kock’s view also focused on a pre-disposition in relation to depression and anxiety. This was not something which Ms Hill considered or which she was prepared to concede during cross-examination ought to have been considered, although her report focused on certain aspects, which affected the plaintiff's mental status, which were unrelated to the incident. [170]    That then brings me to the joint minutes and the agreement reached by the parties in relation thereto. Joint minutes [171]    The parties’ experts in like disciplines completed joint minutes. The occupational therapists prepared a joint minute in August 2018 in which they recorded their areas of agreement and disagreement. What is evident from the joint minute is that the plaintiff's expert, Ms Burns-Hoffman, had assessed the plaintiff prior to the closure of the stoma and had not reassessed her since January 2016 when her report was completed. Whereas the defendant's expert, Ms Prinsloo, conducted her assessment in March 2018 after the closing of the stoma and the plaintiff’s return to work. [172]    They agreed that prior to the closure of the stoma the plaintiff experienced functional, practical and social limitations. Ms Burns-Hoffman noted that the plaintiff perceived herself to ‘cripple’ by her condition and experienced discomfort caused by the colostomy and was inactive in basic activities of daily living. The plaintiff also displayed a probable mood disorder in the form of anxiety and depression. However, Ms Burns-Hoffman deferred to the relevant expert in this regard, being the clinical psychologists. The plaintiff suffered severe disfigurement in the abdominal area and significant scarring, which affected her physical and emotional sense of comfort in 2016. [173]    Ms Prinsloo, on the other hand, noted that the plaintiff would be considered as deconditioned in strength and would have difficulty in returning to a higher level of activity following surgeries and years of deconditioning. She opined that the plaintiff's very mildly affected posture and balance reaction was more related to her weight and that her affected mood was better than prior to the closure of the stoma. The plaintiff’s self-image was negatively affected as a consequence of the scarring. [174]    In relation to employability, they agreed that the plaintiff was unable to return to work prior to the closure of the stoma, but has been able to return to work in an adjusted and accommodated position that is considered sedentary in nature since the closure of the stoma. They disagree in that Ms Burns-Hoffman was of the view that the plaintiff’s ability to sustain employment is linked with the adjustment and accommodation made due to a probable psychological need for ongoing support and her progression in the workplace in the future cannot be separated from the sense of self, confidence and dignity. [175]    However, Ms Prinsloo is of the opinion that, given her assessment in 2018, the plaintiff demonstrated functional performance and was fast enough when compared to the norms and it was thus reasonable to conclude that she had the capacity to perform similar work at a competitive pace, including the physical capabilities to perform in her pre-incident capacity, as well as supported by rehabilitation. [176]    A joint minute was prepared by Dr Moodley, a gynaecologist, and Dr Wasserman, a clinical sexologist, who both advocated in 2018 for certain remedial therapy for the plaintiff in relation to sexual dysfunction, which they opined affected her mental state and put her at risk for continued depression, post-traumatic stress disorder, given the loss of intimate relationships. These recommendations must be considered in the light of what the plaintiff subsequently reported to Ms Narain. [177]    The next joint minute was that of the physiotherapists, Ms Avni and Ms Narain. These experts disagreed on the need for intensive ongoing physiotherapy.Ms Narain, the defendant's expert, was of the view that the plaintiff was a fully functional individual who did not require intensive or ongoing physiotherapy, as physiotherapy ought to be goal orientated and take into consideration functional plateau and discharge protocol. [178]    What is evident from the joint minute is that Ms Avni assessed the plaintiff in January 2016 and conducted a telephonic discussion with the plaintiff in August 2018. Ms Narain assessed the plaintiff on 13 December 2017 and a joint minute was compiled on 28 September 2018. What then does one do when one has conflicting expert opinions and areas of disagreement in a joint minute [179] In AD and another v MEC for Health and Social Development, Western Cape Provincial Government [8] Rogers J as he then was deals with opinion evidence, where he remarked as follows: ‘ When faced with conflicting expert opinions, the court must determine which, if any, of the opinions to accept, based on the reasoning and reliability of the expert witnesses. The court must determine whether and to what extent an opinion is founded on logical reasoning. An expert’s function is to assist the court, not to be partisan. Objectivity is the central prerequisite (see Michael & Another v Linksfield Park Clinic (Pty) Ltd & Another 2001 (3) SA 1188 (SCA) paras 37-39; Jacobs & Another v Transnet Ltd t/a Metrorail & Another 2015 (1) 139 (SCA) paras 14-15). The expert must not assume the role of advocate. If the expert’s evidence is to assist the court he or she must be neutral. The expert should state the facts or assumptions from which his or her reasoning proceeds ( PriceWaterhouseCoopers Inc & Others v National Potato Co-Operative Ltd & Another [2015] 2 All SA 403 (SCA) paras 97-99.) ‘ [180] Further, in AD he held the following: [9] ‘ The expert must demonstrate to the court that he or she has relevant knowledge and experience to offer opinion evidence. If such knowledge and experience is shown, the expert can draw on the general body of knowledge and understanding of the relevant expertise.’ [181]    Mr Botha submitted that the court can have regard to the joint minutes and in areas of disagreement do the best it can and possibly cater for the differences by applying a contingency. I do not agree. [182]    Contingencies allow for the unknown possibility that the plaintiff may have less than normal expectations of life, that he or she may have experienced periods of unemployment, illness, accident or general economic conditions. These relate to what is often referred to as imponderables and speculation about the future. [183] That the calculation of contingencies is not an easy task and is not cast in stone was noted by Willis JA in NK v MEC for Health , [10] as follows: ‘ [Contingencies are like] the rolling of a dice. A court is not a casino . . . Conjecture may be required in making a contingency deduction, but it should not be done whimsically.’ [184] In Buys v MEC for Health and Social Development of the Gauteng Provincial Government [11] the court summarised the position in regard to contingencies as follows: ‘Contingencies are the hazards of life that normally beset the lives and circumstances of ordinary people ( AA Mutual Ins Co v Van Jaarsveld (1) , The Quantum of Damages, Vol II 360 at 367) and should therefore, by its very nature, be a process of subjective impression or estimation rather than objective calculation ( Shield Ins Co Ltd v Booysen 1979 (3) SA 953 (A) at 965 G-H). Contingencies for which allowance should be made, would usually include the following: ·                     the possibility of errors in the estimation of life expectation; ·                     the possibility of illness which would have occurred in any event; ·                     inflation or deflation of the value of money in future; and ·                     other risks of life, such as accidents or even death, which would have become a reality, sooner or later, in any event.’ [185]    One is usually able to apply contingencies when there is agreement on the facts underlying the expert reports as their conclusions are based on an agreed set of facts. Or in circumstances where they differ, for example when determining loss of earnings, in relation to the time period for progression, but they agree on the career path. That is not the position in relation to this matter at all. Mr Botha’s submission did not account for the fact that the collateral information was not reliable, differed from expert to expert and consequently the opinions flawed. In respect of some of the joint minutes the areas of disagreement are so divergent this court is not in a position to make any finding without the assistance of the experts and/or their having testified. [186]    Of further relevance in determining whether the plaintiff has discharged the onus are the reports filed by the experts. There are a number of issues which arise relating to these expert reports. The first is the contention by the defendant that the reports are outdated, and can therefore not be relied on. A similar submission is made in relation to the joint minutes. Juxtaposed is the submission of the plaintiff that given the agreement recorded in 2018, the reports must be accepted. Reports two years or older [187] It is generally accepted that reports that are two years or older are ‘stale’. Consequently, the best evidence is not before the court to assess a claimant's damages. The reason for this is that if a claimant's condition has improved any award made on what was presented to the court on these reports would result in overcompensation and if a claimant's condition has deteriorated she may be under compensated. [12] Courts can only rely on the facts that have been verified and the risks attendant on outdated reports is that the facts may have changed and consequently outdated reports may not contain an accurate reflection of the real sequelae from the injuries sustained. [13] Pre-trial procedures [188]    Prior to the resumption of the part heard trial, the parties were directed to narrow the issues to limit the duration of the trial and attempt to reach agreement on any of the future medical and related expenses. In addition, they were to agree on the status of the respective expert reports. To this end, in keeping with judicial case management directives were issued to the parties. The parties complied with the court’s directives and exchanged minutes and responses. Thereafter judicial case management conferences were convened. [189]    Given the nature of the responses from the defendant, in the Rule 37(A) notice and the court’s correspondence at a judicial case management conference the court specifically raised with the plaintiff's representatives the need for obtaining updated reports and assessments in respect of the plaintiff's claim for future medical, hospital and related expenses. Despite repeated requests, the plaintiff's legal representatives indicated they were not inclined to do so. In fact, in the court order of 17 June 2022 after the judicial case management conference, it was specifically recorded that the plaintiff did not intend to file any updated expert reports and stood by the reports filed to date and the parties undertook to see which of the future medical expenses could be agreed. The parties also gave an indication of the number of further witnesses each intended to call. [190]    Part of the directives included that the parties specifically hold further pre-trial conferences in an attempt to narrow the issues and curtail the evidence to be led. In one of the pre-trial exchanges signed by the plaintiff's attorneys in April 2021 the plaintiff specifically recorded that it received a report of an industrial psychologist, Ms Hill, dated 18 January 2019. It confirmed that it had previously filed a report of Dr Malherbe, who is not an industrial psychologist, but rather a counselling psychologist. Because Dr Malherbe was not an industrial psychologist it posed a problem and to address the problem the plaintiff decided to make use of the services of Ms Hill. It would appear that, given the difficulty with the defendant's expert Professor Buitendach having signed a joint minute with Dr Malherbe the defendant filed a notice instructing a new industrial psychologist, Dr De Kock. [191]    Even as late as April 2021 the plaintiff in its rule 37(2) notices utilised the outdated reports of its experts and required the defendant to agree to this or comment and record the reasons for its refusal to agree thereto. In response to the request for agreement, the defendant specifically recorded the following: (a)       it reserved its right to interrogate the amounts and the frequency thereof as proposed by the experts; (b)       it persisted with its expert’s recommendations and did not accept the proposal of the plaintiff that the recommendations in the joint minutes be agreed and no evidence be led. (c)        in addition, the defendant pertinently enquired about the status of the evidence of Dr Malherbe who had previously testified as an expert. [192]    Subsequently, in February 2022 a further schedule was prepared by the plaintiff’s legal representative and proposals were made in relation to a proposed agreement on the further conduct of the trial, specifically the individual amounts claimed by the plaintiff for damages. Interestingly enough, the plaintiff's legal representatives specifically recorded the areas of disagreement of their experts and what is noteworthy, recorded that certain of the experts have irreconcilable views regarding the anticipated future expenses, and the proposal was that some of these differences be addressed. [193]    The court then issued directives to which a response was received in which the defendant pertinently recorded the following in October 2022. The reports being relied on were completed in 2017 with joint minutes in 2018, accordingly the reports are outdated and will need to be revised. That none of the plaintiff's reports were admitted and any evidence led by the plaintiff would be rebutted by corresponding experts. The defendant intended on calling Dr De Kock, an industrial psychologist and Dr Chohan, a clinical psychologist in response to the respective evidence of Ms Hill and Ms Coetzee. [194]    In addition, further evidence would be led to rebut any evidence led by the plaintiff's experts with the defendant’s experts in their respective fields. The defendant would rely on the joint minutes prepared by the physiotherapist, occupational therapist and industrial psychologists but refutes the minutes of the sexologist and gynaecologist. The reports of the urologist and colorectal surgeon, which are prior to the closure of the stoma, would be refuted in their entirety. [195]    In respect of the physiotherapists, the experts agreed that ongoing intensive physiotherapy was not indicated and the intention of physiotherapy in treating chronic pelvic pain was to discharge the plaintiff with self-administered strategies before the patient is pain free. The plaintiff was obese and lives a sedentary lifestyle, that exercising and water was a good way of providing the stability and support the plaintiff needed to allow her to move freely and easily. [196]    The physiotherapists disagreed on the following: (a)       that the plaintiff requires hydrotherapy as according to Ms Narain, the defendant’s expert, the plaintiff appeared fully functional and she would therefore recommend a mobility and socially acceptable form of exercise such as aqua therapy; (b)       there was no evidence to suggest that physiotherapy was necessary to mobilise scar tissue as the scars at the time of the report were nine years old and there was nothing in the literature to support the effectiveness of physiotherapy to mobilise a nine-year-old scar; (c)        in relation to the alleged sexual dysfunction of the plaintiff, when interviewed by Ms Narain, she indicated that she participated in regular intercourse and did not have any pain or dysfunction during or after intercourse. There was no clinical justification for physiotherapy to address female sexual dysfunction as the plaintiff reported to Ms Narain that she was not experiencing any dysfunction. In addition, the plaintiff's complaints were focused on the embarrassment as a consequence of the scarring over her abdomen. There was nothing in the literature to support the fact that physiotherapy improved female sexual dysfunction, which had been present for nine years; (d)       the plaintiff is obese and has lived a sedentary lifestyle. On examination, the limitations and range of movement, muscle power and endurance were as a consequence of the plaintiff's obesity and inactivity. Ms Narain indicated that the majority of the plaintiff's concerns related to the appearance of the abdominal scarring and physiotherapy would not be recommended for someone who is fully functional and reintegrated into normal life. [197]    As regards the occupational therapists, the defendant specifically noted the time period at which the respective experts prepared their reports and opinions and it was of the view that as the report of the plaintiff's expert was prepared prior to the closure of the stoma, and the circumstances would have changed, and given the time period since the completion of the reports would have changed even further. Furthermore, the plaintiff's main concern related to the scarring, which affected her appearance. [198]    The defendant pointed out that Ms Prinsloo’s assessment of the plaintiff was that her functional participation was not affected however, the family relationship at home, due to dynamics between her mother and herself, and her treatment by her family after her discharge from hospital, were problematic. The plaintiff is able to manage basic tasks independently and to engage in home and childcare activities even prior to the closing of the stoma. [199]    In relation to the reports of Dr Moodley and Dr Wasserman these reports were done prior to the closure of the stoma and both made recommendations as the plaintiff complained of sexual dysfunction. However, given the report to Ms Narain subsequent to Dr Wasserman and Dr Moodley's report there was nothing to suggest that that the plaintiff is experiencing any sexual dysfunction as she reported she was having sexual intercourse. Consequently, these experts would need to reassess the plaintiff. [200]    As regards the industrial psychologists, the stance recorded in the joint minutes in relation to the premorbid and post-morbid scenarios are contained in the defendant's response. What is recorded at paragraph 28 thereof is the following: ‘ It appears that the area of dispute lies in the pre-incident scenario. In fact, it appears that De Kock is the middle position of both Hill’s scenarios.…’ [201]    Of relevance is that there is no agreement on the pre-morbid or post morbid scenarios. Of significance in the notice in terms of R37 A signed by the defendant, dated 22 February 2022, are the following recordals. Firstly, that the defendant would instruct its experts to file updated reports once the plaintiff has filed, if any, its updated reports. Secondly, the fact that the reports are outdated and cannot be relied upon. Consequently, the joint minutes cannot be relied upon and therefore updated reports are necessary. A similar response was also provided by the defendant, dated 1 February 2023, shortly prior to the trial proceeding. [202] The defendant gave the plaintiff ‘fair warning’ of its intention of its stance relating to the expert reports and the agreement reached relating thereto. The need for the fair warning was sounded by Rogers AJA in Bee [14] as follows: ‘ If a litigant for any reason does not wish to be bound by the limitation, fair warning must be given. In the absence of repudiation (ie fair warning), the other litigant is entitled to run the case on the basis that the matters agreed between the experts are not in issue.’ [203]    Consequently, the plaintiff could not rely on the outdated reports or the agreement in 2018 concluded prior to the trial commencing. It makes sense that at the time of conclusion of the agreement in 2018, both parties did not anticipate that the trial would be delayed and that the plaintiff’s industrial psychologist was not an expert in the filed he was called to testify about. [204] The value of expert reports in the determination of the quantum of a litigant’s damages is important not only for litigants but also for the courts in order to discharge their duty to award just compensation. It is for this reason that the admissibility and currency of such expert reports have started to figure prominently in the jurisprudence of our courts. The general rule is that expert reports must provide appreciable help to the courts in assessing damages. It is only then that the matter is capable of being decided with due regard to these reports. Trollip JA in Gentiruco AG v Firestone SA (Pty) Ltd [15] held that: ‘ . . . the true and practical test of the admissibility of the opinion of a skilled witness is whether or not the Court can receive 'appreciable help' from that witness on the particular issue . . .’ [205] The expert opinion does not supplant the court's duty to scrutinise their admissibility and relevance. The basic principle articulated by the Supreme Court of Appeal in Seyisi v S [16] is that: ‘ . . . a court is entitled to be guided by the evidence of an expert. In the absence of a challenge to expert evidence that prima facie establishes the relevant facts a court is entitled to rely upon . . .’ [206]    The passage of time can significantly impact the relevance and the reliability of an expert report. Information may become stale, industry standards might change or new evidence could come to light that alters the expert's initial assessment. Once a plaintiff relies on outdated reports and elects not to update them, the defendant can challenge its reliability and argue that it does not accurately reflect the current situation. In such an event, the court in my view, must rely more heavily on other evidence to assess the current situation. The court may draw inferences about why updated reports were not provided and may give less weight to outdated reports but consider it in the original context. [207] In Moloi v Road Accident Fund [17] the court held the following: “ It is submitted that the reports of the experts were admitted into evidence and were unchallenged. It appears that Counsel for the Plaintiff seems to argue that in the absence of any contrary evidence, such reports must be accepted as they are. It cannot be correct. The cross-examination was directed to showing that the reports, though they might have held truthfulness in them, were not without criticism. The fact is that they did not take into account the changed circumstances of the Appellant as, according to her experts, her circumstances may have changed. The reports do not talk to the present circumstances of the Appellant and for this reason, they do not provide reliable current evidence to sustain a conclusion that the alleged injuries detrimentally affected her future career.” [208] The Supreme Court of Appeal in PriceWaterhouseCoopers Inc and others v National Potato Co-operative Ltd and another [18] also highlighted the significance of considering the most up to date information. The admission of outdated reports creates a significant disadvantage for the plaintiff, in my view. Without the support of expert evidence, it becomes more difficult to prove the extent of the damages suffered and to persuade the court to award a favourable amount. The plaintiff bears the burden of ensuring the admissibility of expert reports and its relevance. A failure to do so results in a court attaching little to no weight to the expert’s finding. [209]    In circumstances like the present, where there are joint minutes signed by both experts, any agreement reached relating to it significantly limits the issues requiring evidence during the trial. This was a submission by Mr Botha, who indicated that the court must have regard to the initial agreement concluded between the parties. However, this submission in my view does not assist the plaintiff. The defendant timeously and clearly notified the plaintiff of its concerns relating to the outdated reports and what needed to be done. [210]    The rule 37(2) pre-trial proceedings clearly drew to the plaintiff's attention that the reports were outdated. In addition, the defendant timeously indicated to the plaintiff that it would no longer consider itself bound by the joint minutes. As in this instance the parties, despite the express agreement to rely on the reports initially, thereafter the defendant gave notice that it would not consider itself bound by the initial agreement relating to the reports and joint minutes. The defendant gave the plaintiff fair warning as highlighted by Rogers AJA in Bee referred to hereinbefore. [211] In Bee Seriti JA (as the minority), quoting from Sutherland J in Thomas v BD Sarens (Pty) Ltd , [19] held the following: [20] ‘ Where two or more experts meet and agree on an opinion, although the parties are not at liberty to repudiate such an agreement placed before the court, it does not follow that a court is bound to defer to the agreed opinion. In practice, doubtlessly rare, a court may reject an agreed opinion on any of a number of grounds all amounting to the same thing; ie the proffered opinion was unconvincing.’ Expert witness [212] An expert witness is required to assist the court and does not usurp the function of the court. They are also required to lay a factual basis for their conclusions and explain their reasoning to the court. A court must be satisfied as to the correctness of an expert's reasoning. [21] A court is not bound by the view of an expert and the ultimate decision maker on issues is the court- experts merely provide an opinion. [22] Of vital importance in such determination is that any facts, which an expert witness expresses an opinion on, must be capable of being reconciled with all the other evidence in a matter. In Bee [23] Seriti JA writing a minority judgment held the following: ‘ 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.’ [213] The duties and responsibilities of expert witnesses specifically in civil matters was dealt with in National Justice Compania Navier SA v Prudential Assurance Cr Ltd (“the Ikarian Reefer”) [24] where the court held the following: ‘ The duties and responsibilities of expert witnesses in civil cases include the following: 1.         Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation ( Whitehouse v Jordan , [1980] UKHL 12 ; [1981] 1 WLR 246 at p 256, per Lord Wilberforce). 2.         An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise (see Polivitte Ltd v Commercial Union Assurance Co Plc , [1987] 1 Lloyd's Rep 379 at p 386 per Mr Justice Garland and Re J , [1990] FCR 193 per Mr Justice Cazalet). An expert witness in the High Court should never assume the role of an advocate. 3.         An expert witness should state the facts or assumption upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion (Re J sup). 4.         An expert witness should make it clear when a particular question or issue falls outside his expertise. 5. If an expert's opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one ( Re J sup ). In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report . . . ‘ [214] Seriti JA (the minority judgment) in Bee [25] the Supreme Court of Appeal also considered the role of experts and stated as follows: ‘ [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. In Masstores (Pty) Ltd v Pick ‘n Pay Retailers (Pty) Ltd [2015] ZASCA 164 ; 2016 (2) SA 586 (SCA) para 15, this court said “ Lastly, the expert evidence lacked any reasoning. An expert’s opinion must be underpinned by proper reasoning in order for a court to assess the cogency of that opinion. Absent any reasoning the opinion is inadmissible”. In Road Accident Appeal Tribunal & others v Gouws & another [2017] ZASCA 188 ; [2018] 1 ALL SA 701 (SCA) para 33, this court said “ Courts are not bound by the view of any expert. They make the ultimate decision on issues on which experts provide an opinion”. (See also Michael & another v Linksfield Park Clinic (Pty) Ltd & another [2002] 1 All SA 384 (A) para 34.) [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.’ [215] Ramsbottom J made the following remarks in R v Jacobs : [26] ‘ Expert witnesses are witnesses who are allowed to speak as to their opinion, but they are not the judges of the fact in relation to which they express an opinion; the Court . . . is the judge of the fact   In cases of this sort it is of the greatest importance that the value of the opinion should be capable of being tested; and unless the expert witness states the grounds upon which he bases his opinion it is not possible to test its correctness, so as to form a proper judgment upon it.’ [216] The role of an expert witness was succinctly summarised by the Supreme Court of Appeal in Jacobs and another v Transnet Ltd t/a Metrorail and another [27] as follows: ‘It is well established that an expert is required to assist the court, not the party for whom he or she testifies. Objectivity is the central prerequisite for his or her opinions. In assessing an expert's credibility an appellate court can test his or her underlying reasoning and is in no worse a position than a trial court in that respect. Diemont JA put it thus in Stock v Stock : ” An expert . . . must be made to understand that he is there to assist the Court. If he is to be helpful he must be neutral. The evidence of such a witness is of little value where he, or she, is partisan and consistently asserts the cause of the party who calls him. I may add that when it comes to assessing the credibility of such a witness, this Court can test his reasoning and is accordingly to that extent in as good a position as the trial court was.”’ (footnotes omitted) [217] In Schneider NO and others v AA and another [28] Davis J remarked as follows: ‘In short, an expert comes to court to give the court the benefit of his or her expertise. Agreed, an expert is called by a particular party, presumably because the conclusion of the expert, using his or her expertise, is in favour of the line of argument of the particular party. But that does not absolve the expert from providing the court with as objective and unbiased an opinion, based on his or her expertise, as possible. An expert is not a hired gun who dispenses his or her expertise for the purposes of a particular case. An expert does not assume the role of an advocate, nor gives evidence which goes beyond the logic which is dictated by the scientific knowledge which that expert claims to possess.’ [218] The parties rely on the evidence of expert witnesses to support their divergent contentions. An expert witness’ opinion and evidence must be considered holistically during the evaluation of the expert opinion. [29] The evaluation of expert testimony requires a consideration and determination of whether and to what extent the opinions advanced have a logical basis and are premised on logical reasoning. [30] [219] The limitations to expert opinions are well known and courts cautious to assess the value of expert opinions without a consideration of the facts upon which it is based. If it is determined that the facts are incorrect then it follows that the expert opinion is flawed. [31] In the case of S v Mthethwa [32] the court stated the following: ‘ The weight attached to the testimony of the psychiatric expert witness is inextricably linked to the reliability of the subject in question. Where the subject is discredited the evidence of the expert witness who had relied on what he was told by the subject would be of no value.’ [220] It is also apposite to mention the English decision of R v Turner , [33] which reasoning has been applied with approval by our courts in the evaluation of expert witness opinions. In that matter Lawton LJ stated: ‘ Before a court can assess the value of an opinion it must know the facts on which it is based. If the expert has been misinformed about the facts or has taken irrelevant facts into consideration or has omitted to consider relevant ones, the opinion is likely to be valueless.’ [221] In Bee [34] the court quoted from the judgment in The State v Thomas , [35] which referred to the expert reports of two psychiatrists and said: ‘ When dealing with expert evidence the court is guided by the expert witness when deciding issues falling outside the knowledge of the court but within the expert’s field of expertise; information the court otherwise does not have access to. It is however of great importance that the value of the expert opinion should be capable of being tested. This would only be possible when the grounds on which the opinion is based is stated. It remains ultimately the decision of the court and, although it would pay high regard to the views and opinion of the expert, the court must, by considering all the evidence and circumstances in the particular case, still decide whether the expert opinion is correct and reliable.’ (footnotes omitted) [222] It is also trite that the role of the expert witness is to assist the court in reaching a decision. A court is not bound by, nor obliged to accept the opinion of any expert witness. [36] The facts relied upon by the expert in his evidence must be capable of being reconciled with all the other evidence. [37] In addition, the facts on which the expert witnesses rely must be established during the trial. The exception relates to facts drawn as a conclusion by reason of the expert witness’ expertise from other facts that have been admitted or established by admissible evidence. [38] [223] In Jacobs , [39] the court held that: ‘ Where experts in a joint minute reach an agreement on an issue, they signify that such an issue need not be adjudicated upon as the initial dispute simply does not exist. Unlike in an expert report where the factual basis upon which the expert opinion hinges is indicated, parties to a joint minute do not indicate such factual basis. They in essence simply agree that a fact or opinion is not in dispute and it will in the normal course of events not be open for a court to cut the veil of such an agreement and question the veracity of the facts or opinion contained therein. By having reached an agreement, they put the dispute beyond the need for adjudication.’ [224]    It is apparent from the aforementioned exposition on the applicable principles that a distinction can be drawn between the facts upon which an expert’s opinion is based and the expert's actual opinion. Agreement [225] This then raises the question as to the effect of the agreement recorded by the parties. This emanates from the submission of plaintiff's counsel that given the agreement there is no need for any expert evidence to be led. Sutherland J in Thomas [40] said that ‘Even if a court might be sceptical about a set of agreed facts, there is no licence to go behind the parties’ agreement, at least in a civil matter, just as the admitted facts on the pleadings are not to be interrogated by a court.’. [226]    The problem in this matter is that the facts on which the reports were based were not agreed. This was specifically recorded as part of the agreement and that the defendant considered it hearsay and reserved its right to argue the weight to be attached thereto. [227]    More importantly, as referenced above, the defendant gave the plaintiff fair warning about its changed stance in relation to the reports. Although Mr Botha during the course of argument relied on certain authorities for his submission that the defendant cannot resile from the agreement reached, they are not relevant to the issue at hand. [228]    It is correct that when the trial commenced in November 2018 the parties recorded the following agreement in an effort to save costs and curtail the duration of the trial, namely: (a)       that the actuaries would not be called to testify and that the court, once it heard the evidence, would be requested to determine the parameters in the form of facts and assumptions for purposes of actuarial calculations; (b)       the calling of expert witnesses to give viva voce evidence under oath would be limited to the clinical and industrial psychologists; (c)        any submissions relating to anticipated future hospital, medical and related expenses would be based on the content of the various expert reports filed on behalf of both parties as well as a joint minute of the various experts in like disciplines. [229]    The defendant noted that the facts and collateral information was not admitted and was hearsay and would argue the weight to be attached to such report and evidence. This was once again reiterated during the subsequent pre-trial conferences. It warrants mentioning that at the time the trial proceeded in 2018, the defendant was represented by a different senior counsel, than the one who subsequently ran the trial and participated in the pre-trial proceedings. [230] As regards the submission that an agreement had been concluded and the defendant could not resile from it Mr Botha referred to several decisions in support of his argument. [41] Regrettably none of these decisions are of assistance and do not provide support for his submissions. The judgment of Traverso DJP deals with a different set of facts to the present one and the judgment of the SCA deals with whether the court had the jurisdiction to enquire whether a compromise was justified and validly concluded. [231]    The circumstances of this matter are very different from those which prevailed in those matters. It must follow for the reasons already mentioned the defendant cannot be held to the agreement concluded in 2018 regarding the status of the reports. What is the most appropriate order to grant in circumstances where a plaintiff has not proven her damages, absolution from the instance or dismissal of the action? [232] In M v Road Accident Fund [42] the court identified three options in circumstances where a plaintiff fails to prove their damages ‘ [84]     The plaintiff in this case did not prove the facts on which he wants for the mathematics to be done. The case may therefore be concluded with a dismissal of the claim. [85]      The second option is to order absolution from the instance with costs and with leave to the plaintiff to proceed afresh on his claim on the same papers duly amplified. [86]      The other option is a recalculation of the loss by the actuaries. The problem is that there are many unproven scenarios that might be speculated on. The outcome may still be in dispute between the parties afterwards. It is not known if the plaintiff would have been placed on sedentary and more sympathetic duties or ill-health pension and what the effect on the plaintiff’s salary would have been. Only the employer can attest to that.’ [233] In Makhubu v Road Accident Fund [43] absolution from the instance in respect of loss of earnings was granted but an order for general damages was issued. In Nelson v Road Accident Fund [44] the court held that absolution in relation to the loss of earnings was more appropriate as it would allow the plaintiff to return with proper evidence. Similarly, in Mlotshwa v Road Accident Fund [45] absolution was granted. However, in Goldex 16 (Pty) Ltd v Capper NO and others [46] the court dismissed the claim as the plaintiff had refused to remedy the defect in relation to the failure to adopt a market value. [234]    That then brings me to determine what an appropriate award in this matter would be. Mr Botha who appeared for the plaintiff submitted that this court could make a decision on the reports and have regard to the agreement concluded between the parties. For reasons already indicated hereinbefore such approach cannot be followed. Once the defendant indicated to the plaintiff that the agreement concluded prior to the trial commencing in 2018 could not be followed through given the outdated reports and brought it specifically to the attention of the plaintiff, it ought to immediately have become apparent to the legal representatives of the plaintiff that they could not rely on such agreement. [235]    This too in the face of the court convening several judicial case management conferences and enquiring from the plaintiff's legal representatives as to whether they would still rely on the outdated reports and whether it would not be prudent to obtain updated reports to cater for the possible change in her condition. It was pertinently placed on record on a number of occasions that the plaintiff's legal representatives declined to obtain updated reports. Once the stance was adopted, the plaintiff at that stage already knew what the defendant's stance would be. It proceeded to trial in 2023 knowing full well what the stance of the defendant was and that the reports were being challenged. This too similarly was recorded in a response to a rule 37 questionnaire referred to hereinbefore in this judgment. [236]    At the hearing, I raised the aspect with Mr Pillay SC who appeared for the defendant as to whether or not absolution would not be the most appropriate order in the circumstances to allow the plaintiff to cure the defect. He submitted that ordinarily he would have no objection to this approach, however, the facts of this particular matter demonstrates that this would not be an appropriate order given what transpired. The defendant had pertinently notified the plaintiff's legal representatives that did not consider itself bound by the agreement given the outdated reports and the possible change in circumstances. More specifically, that the factual basis upon which these opinions were rendered had changed subsequently. [237]    In my view, the most appropriate award on the facts of this particular matter is that of absolution. This must follow given the stance adopted by the plaintiff's legal representatives not to update the report or obtain any addendums. I am fortified in this view given the changed circumstances, which emerged during the course of the plaintiff's evidence. This was known to the legal representatives after the plaintiff testified. They could then knowing the change in the factual circumstances still have applied for the matter to be adjourned to obtain updated reports and addendums to enable this court to properly assess the plaintiff's damages. As they failed to do so, the plaintiff must regrettably be visited with the consequences of such stance by her legal representatives. Conclusion [238]    The court cannot decide the matter on the available reports as the best evidence has not been placed before me. The plaintiff has made an election not to obtain updated reports from her experts or even addendums to such reports. I may also add at the outset that the plaintiff contented herself with outdated reports and certain of the reports were not updated on both occasions the quantum trial was enrolled. [239]    This was despite the fact that opportunities were provided to the parties to do so by way of various judicial case management conferences, which were held prior to the trial of the matter reconvening in 2023. It has not been an easy road to reach the right and just decision. I must place on record that I have much sympathy for the plaintiff and the position she finds herself in. However, in reaching a just decision I must do justice between the parties. [240]    Having debated the issues with both parties’ legal representatives, it seems to me that the fairest order to make on the facts of this particular matter would be to grant absolution from the instance. The plaintiff has simply not adduced evidence to discharge the onus of establishing her entitlement to her damages. Costs [241] That then brings me to the aspect of costs. There have been instances where a court has ordered that the costs of experts not be allowed. In Ntombela v Road Accident Fund [47] the courts disallowed the costs of two industrial psychologists expressing its displeasure at their performance and what it termed ‘inadequate and superficial conduct’. This was as the basis for the reports was questionable and so as to voice the court’s displeasure for their conduct it disallowed their costs. [242] In Donough v Road Accident Fund [48] the court held the following; “ I find it totally unacceptable that the plaintiff's experts, particularly Dr Angus, Ms Vos and Ms Hattingh omitted to contact the plaintiff's employers post-accident, to corroborate the opinions. Clearly their opinions are merely based on the say-so of the plaintiff. On the other hand I find Mr Kok’s assessment totally reliable and of assistance to the Court. To show the court’s displeasure in the manner in which these experts conducted their investigations, I have decided that they should not be entitled to the full qualifying fees.” [243]    There is no reason to depart from the usual rule in relation to costs nor were any such reasons advanced by the parties at the hearing. I am aware that the costs order will seriously impact the plaintiff. In this regard, it must be noted that a punitive costs order was made in October 2018 in the plaintiff’s favour when the matter was adjourned. Some of the costs incurred for experts specifically Ms Coetzee and Dr Malherbe were recovered. [244] I am also mindful that one of the considerations in relation to the costs of the experts is whether I received ‘appreciable help’ from the reports and evidence. [49] As I did not, I cannot in all good conscience grant an order to alleviate this burden, which will befall the plaintiff because I am sympathetic to her situation. In considering the award of costs, I have had regard to the fact that both parties employed senior and junior counsel at various stages. I am satisfied that given the conduct of the matter, the nature of the issues involved and their complexity the employment of two counsel was warranted. Orders [245]    In the result the following orders will issue: 1.         In respect of the plaintiff’s claims for past and future loss of earnings and future medical, hospital and related expenses not specifically abandoned, I grant absolution from the instance with costs. 2.         Such costs including any reserved costs, are to be paid on a party/party scale by the plaintiff and are to include the costs occasioned by the employment of two counsel by the defendant. Henriques J CASE INFORMATION APPEARANCES Counsel for the Plaintiff                       Advocate J J Botha SC hansiebotha@capebar.co.za Instructed by :                                     Lanser Liedtke & Associates Inc. Ref: NGC1/0001/CVG Email: Christelle@llalaw.co.za c/o Grindlay Naidoo Martens Inc. Unit 2, Ground Floor, 30/32 Churchill Road, Windermere DURBAN Tel: (031) 303 8817 Email: lucy@askewgrin.co.za Ref: Ms L Naidoo Counsel for the Defendant :                Advocate I Pillay SC pillayi@me.com Advocate Z Rasool rasool@law.co.za Instructed by :                                     The State Attorney 6th Floor, Metlife Building 391 Anton Lembede Street DURBAN Email: nonxumalo@justice.gov.za Ref: 24/002879/09/N/P7 Dates of Hearing                                 15, 16 and 17 October 2018, 14,15 and 26 November 2018, 17 June 2022, 25, 29 and 30 May 2023, 22 February 2024 Date of Judgment    :           04 October 2024 This judgment was handed down electronically by circulation to the parties’ representatives by email, and released to SAFLII. The date and time for hand down is deemed to be 09h30 on 04 October 2024. [1] I must place on record that the defendant has been at somewhat of a disadvantage in this matter in light of the fact that the attorney dealing with a litigation Mr CW Dorkin died tragically a few weeks before the trial was to commence. Counsel who was initially appointed to deal with the trial in the matter Mr J Nxusani SC could not deal with the trial when it recommenced on 14 November 2018 and Mr I Pillay SC then stepped in. [2] The Becks Depression Inventory is a self-report inventory of a person’s mood state and the Becks Anxiety Inventory measures the severity of self-reported anxiety. [3] Bee v Road Accident Fund [2018] ZASCA 52 ; 2018 (4) SA 366 (SCA) para 30 ( Bee ). [4] Bee para 31. [5] Jacobs and another v Transnet Ltd t/a Metrorail and another [2014] ZASCA 113 ; 2015 (1) SA 139(SCA) para 15. [6] Schneider NO and others v AA and another 2010 (5) SA 203 (WCC) at 211J – 212B. [7] HAL obo MML v MEC for Health, Free State [2022] 1 All SA 28 (SCA) paras 202, 208 - 215 [8] AD and another v MEC for Health and Social Development, Western Cape Provincial Government [2016] ZAWCHC 116 para 39 (AD). [9] AD para 42. [10] NK v MEC for Health, Gauteng [2018] ZASCA 13 ; 2018 (4) SA 454 (SCA) para 16. [11] Buys v MEC for Health and Social Development of the Gauteng Provincial Government [2015] ZAGPPHC 530 para 96. [12] NA obo ZN v Road Accident Fund [2023] ZAGPJHC 64 para 12. [13] Van Tonder N.O v Road Accident Fund [2021] ZAGPPHC 382 para 13. [14] Bee para 66. [15] Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589 (A) at 616H, the court referring to Wigmore on Principles of Evidence (3 ed) Vol VII at paragraph 1923. [16] Seyisi v S [2012] ZASCA 144 ; [2012] JOL 29518 (SCA) para 13. [17] Moloi v Road Accident Fund [2024] ZAFSHC 81 para 15. [18] PriceWaterhouseCoopers Inc and others v National Potato Co-operative Ltd and another [2015] ZASCA 2 (PriceWaterhouseCoopers). [19] Thomas v BD Sarens (Pty) Ltd [2012] ZAGPJHC 161 para 13 (Thomas). [20] Bee para 24. [21] Bee para 22. [22] Michael and another v Linksfield Park Clinic (Pty) Ltd and another [2002] 1 All SA 384 (A) para 34 (Michael). [23] Bee para 23. See also Jacobs and another v Transnet Ltd t/a Metrorail and another [2014] ZASCA 113 ; 2015 (1) SA 139 (SCA) paras 15-16 (Jacobs). [24] National Justice Compania Naviera SA v Prudential Assurance Co Ltd (“The Ikarian Reefer”) [1993] 2 Lloyd's Rep 68 at 81. [25] Bee paras 22-23, see also Jacobs paras 15 and 16 and Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft Für Schädlingsbekämpfung mbH 1976 (3) SA 352 (A) at 371F-G. [26] Rex v Jacobs 1940 TPD 142 at 146-147. [27] Jacobs para 15. [28] Schneider NO and others v AA and another 2010 (5) SA 203 (WCC) at 211J – 212B. [29] Life Healthcare Group (Pty) Ltd v Suliman [2018] ZASCA 118 ; 2019 (2) SA 185 (SCA) para 18. [30] Michael and another v Linksfield Park Clinic (Pty) Ltd and another 2001 (3) SA 1188 (SCA) para 36- 37. [31] Ndlovu v RAF 2014 (1) SA 415 (GSJ) para 35. [32] S v Mthethwa [2017] ZAWC 28 para 98. [33] R v Turner [1975] 1 ALL ER 70. [34] Bee para 29. [35] The State v Thomas [2016] NAHCMD 320 para 29. [36] Road Accident Appeal Tribunal & others v Gouws & another [2017] ZASCA 188 ; [2018] 1 ALL SA 701 (SCA) para 33; Bee para 22. [37] Bee para 23. [38] Mathebula v Road Accident Fund [2006] ZAGPHC 261 para 13; PriceWaterhouseCoopers para 99. [39] Jacobs v The Road Accident Fund [2019] ZAFSHC 4 ; 22019 JDR 0934 (FB) para 25. [40] Thomas [41] The National Director of Public Prosecutions and Yolanda Brandt and Vivien Eunice Pitts Case No 2837/2006 Unreported judgment of Traverso DJP delivered in the Western Cape High Court on 9 July 2007 at para 25, The Road Accident Fund v Taylor and other matters (1136-1140/2021) [2023] ZASCA 64 (8 May 2023); [42] M v The Road Accident Fund [2022] ZAFSHC 245. [43] Makhubu v Road Accident Fund [2023] ZAGPPHC 283. [44] Nelson v Road Accident Fund [2023] ZAFSHC 147 para 22. [45] Mlotshwa v Road Accident Fund [2017] ZAGPPHC 109. [46] Goldex 16 (Pty) Ltd v Capper NO and Others [2017] ZAGPJHC 305 para 53. [47] Ntombela v Road Accident Fund 2018 (4) SA 486 (GJ) paras 49 and 52. [48] Donough v Road Accident Fund [2010] ZAGPJHC 100 para 55. [49] Genrituco supra confirmed by the Constitutional Court in Glenister v President of the Republic of South Africa 2013(11) BCLR 1246 (CC) paras 7-9 sino noindex make_database footer start