DELICT – ALLEGATIONS SUSTAINING CLAIM MUST BE PROVED;  APPROACH TO MUTUALLY DESTRUCTIVE VERSIONS

DELICT – ALLEGATIONS SUSTAINING CLAIM MUST BE PROVED;  APPROACH TO MUTUALLY DESTRUCTIVE VERSIONS

The plaintiff claimed that on 17 June 2016, while shopping in Jet Stores, Walvis Bay, she slipped and fell on a wet floor which resulted in injuries sustained to her hip, knee and shoulder. As a result of the fall, the plaintiff claims to have sustained injuries, more particularly pain, suffering and discomfort, emotional shock and trauma. The defendant, in its plea, denied that the floor of the store was wet on 17 June 2016, and further denied that the plaintiff slipped and fell in its store on the said date or any other date. The defendant further pleaded that the plaintiff had known injuries or medical conditions regarding her knees, hips and joints pre-dating 17 June 2016. It pleaded further that the plaintiff also had degenerative changes regarding her hips, femur and acetabulum.

SIBEYA J set out to determine whether the plaintiff entered jet store and fell in the store as result of the wet floor, and whether she consequently suffered injuries, and held that:

1. It is the duty of owners or other person or entity that controls a store to ensure that such store is safe for use by members of the public, however, in order for the defendant to be held liable for the damages allegedly suffered by the plaintiff there must be a causal link between the fall and the cause of damages.
2. Repeating an allegation to different persons several times does not elevate such allegation by any degree nor does it necessarily make such an allegation true.
3. The evidence of Dr Tietz who undisputedly assisted with over 500 orthopaedic surgeries and is the first point of contact for orthopaedic conditions supported the finding by Dr Moolman that the medical condition of the plaintiff resulted from degeneration of the joints related to age. The court accepted the opinions of Dr Moolman and Dr Tietz that the medical condition of the plaintiff was due to the degenerative condition related to age and not the alleged fall.
4. The plaintiff did not prove on a balance of probabilities that there was a wet floor in Jet Stores on 17 June 2016 and that she fell and sustained injuries.

In the result, the plaintiff’s claim against was dismissed with costs.

Madisa v Edgars Stores Nam t-a Jet Stores WB NAHCMD 16 September 2022