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[2013] ZAGPJHC 310
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Motswai v Road Accident Fund (2010/17220) [2013] ZAGPJHC 310 (2 May 2013)
IN THE SOUTH GAUTENG
HIGH COURT,
JOHANNESBURG
(REPUBLIC OF SOUTH
AFRICA)
CASE NUMBER
2010/17220
In
the matter between
MOTSWAI,
MUSEJIE VENNON
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
SUMMARY:
Costs of
plaintiff and defendant attorneys in RAF matter – jurisdiction
of court to change agreement on costs -
judicial officers
must be astute to ensure that public monies are not wastefully
expended - costs incurred where injury
upon which claim
for damages based had not occurred - plaintiff attorney who
signed particulars of claim does not check the
hospital records upon
which claim based – argument that plaintiff’s attorney
entitled to rely upon plaintiff’s
own assessment of injury
rejected - defendant attorney did not notice disparity
between hospital records and particulars
of claim - order made
that plaintiff’s attorneys may recover no fees and
disbursements from RAF – defendant’s
attorneys may
recover from RAF only own fees and radiologist and counsel’s
fees and must bear costs of other
medical reports
de bonis
propriis.
JUDGMENT
SATCHWELL J:
BACKGROUND TO COSTS
INVESTIGATION
1. By judgment handed
down on 6
th
December 2012, the issue of recovery of fees
and disbursements by both the Plaintiff’s and the Defendant’s
attorneys
was postponed to another date. The matter was argued
on Friday 15
th
March 2013.
2. The original order
arose out of an agreement of settlement entered into by the
litigating parties which provided that the plaintiff
was to receive
an undertaking in terms of section 17 of the Road Accident Fund Act
number 56 of 1996 (hereafter referred to as
the RAF Act) for payment
of 80% of plaintiff’s future medical expenses and then set out
the basis upon which costs (Plaintiff’s
fees and disbursements)
would be met by the Road Accident Fund (hereafter referred to as the
RAF).
3. In my earlier judgment
I noted that the Baragwanath Hospital records of August 2008
diagnosed, after x rays, that Plaintiff
had sustained a soft
tissue injury to his right ankle for which “
RICE”
and painkillers were prescribed. This soft tissue injury was
the medical basis of the claim as set out in the RAF Form 1
of July
2009. When summons was issued in May 2010, Plaintiff’s
damages were now, according to the particulars
of claim, based
upon a “
fractured right ankle”
. Radiology
and orthopaedic examinations undertaken a month before
trial confirmed the earlier diagnosis
of a soft tissue
injury.
4. In my earlier judgment
I found that there was no triable issue and that the litigation
should never have been instituted.
I castigated the Plaintiff’s
attorney for signing the particulars of claim which were
clearly untrue. I
deprecated the Defendant and the Defendant’s
attorneys for failing to respond professionally, or
at all,
to the discrepancy between the RAF Form 1 and the
particulars of claim. I expressed disquiet that the orthopaedic
surgeon
who prepared a report for the Plaintiff had not directed the
attorney’s attention to the lack of a fracture and the absence
of any need for a medico-legal report. I deplored the incurring
of attorney and advocates costs as well as costs of
‘
medical experts’
in the circumstances of
this case.
5. It was these concerns
which caused me to make the orders that the parties’
attorneys furnish the Senior Registrar
of this court with
copies of all invoices pertaining to costs in this litigation
as well as arranging a
hearing on the issue of costs
de
bonis propriis
.
JURISDICTION OF COURT
TO CHANGE PARTIES AGREEMENT ON COSTS
6. Relying upon
Laws v Rutherford
1924 AD 261
, counsel for the Plaintiff’s
attorney submitted that the court has no jurisdiction to
‘rewrite’ the agreement
on costs entered into by
the Plaintiff’s attorney and the RAF.
7. Of course,
Laws (supra)
was concerned with failure to
comply with “
an important condition
” and it
was, in that context, that Innes CJ commented at 264 “
The
Court cannot make new contracts for parties; it must hold them to
bargains into which they have
deliberately entered
”.
In the present case, the court is not concerned with a substantive
contract between the parties.
8.
The award
of costs is a matter within the discretion of the court. Whether
such award is encompassed within an agreement
entered into by
the litigants representatives or not, I know of no rule
which requires a judicial officer
to close his or her eyes to
the propriety the scale or quantum of costs merely
because legal representatives
have agreed same
[1]
.
9. It is trite that
the entire system of road accident compensation in South Africa is
funded by a compulsory levy imposed
by government upon petrol
and diesel. This dedicated levy is paid, one way or another, by all
road users. There is nothing
voluntary about payment. This is
pre-eminently a form of taxation in order to fund what is perceived
to be a social good –
road accident compensation. Every
penny expended by the RAF is expenditure of public monies.
10. Judicial
officers must be astute to ensure that public monies are not
wastefully expended. This approach has been
followed by our
courts in matters involving road accident compensation –
whether capital or costs are concerned.
11. It seems to me
that it is even more essential that the court should
carefully scrutinise costs
arrangements between parties
where it is clear on the papers that neither legal
representative has been alert
to ensure cost-effective
litigation.
AGREEMENT
INCORRECTLY RECORDED HIGH COURT COSTS
12. Counsel for
both the Plaintiff and the Defendant’s attorneys informed me
that, although the agreement handed
to me expressly stated that
“
the defendant shall pay the plaintiffs taxed or agreed
party and party costs on the High Court scale
” this had not
actually been agreed between the parties.
13. The RAF
had instructed its attorneys per email dated 13
th
December
2012 at 11h56 (i.e. during or after roll call on the trial date),
that it would only pay costs on the magistrates
court scale
and the agreement which had been drafted by the counsel
attorney appearing for the Plaintiff had
neither been seen nor
corrected by counsel for the RAF before it was handed to myself,
the trial judge.
14. Clearly,
the RAF was alive to the need to distinguish
between costs on different scales.
15. What concerns
me is the assumption by the counsel attorney appearing for the
Plaintiff that he could prepare
a draft order,
where no damages were payable which would justify (any) scale
of costs, that provided for
costs on the high court scale.
CIRCUMSTANCES OF
INCURRING OF COSTS BY PLAINTIFF ATTORNEY
16. There are
essentially five submissions made on behalf of the Plaintiff’s
attorney with regard to the incurring
of costs in this matter.
17. First,,
It is complained that I failed to refer to the specific pages of the
hospital records which indicate the
initial concern that there might
be a fracture. This is incorrect – the judgment refers to pages
27 to 38 of the records
which indicates that the hospital
initially gave consideration to the possibly of a fracture of the
right ankle and
accordingly referred the patient for an x-ray
which showed no fracture. The judgment specifically states “
x
rays were taken and there were no fractures”
What was
and remains relevant is that the hospital records excluded a fracture
after investigation and found only a
soft tissue injury.
18. Second, at the
end of argument it was submitted that soft tissues injuries can be
very serious because they
“can include torn ligaments”.
That is neither here nor there. The litigation was not based
upon serious soft
tissue injuries which might include torn ligaments.
19. Third,
it was argued that the Plaintiff informed
his attorney at his initial
consultation on
affidavit and then at a later consultation that he
had fractured his ankle and that the attorney
was entitled to have
regard to such complaint by the client in formulating the particulars
of claim. That may be so but it takes
the matter no further.
Notwithstanding the belief by the client as to the nature of his
injury, the medical records do not support
his misapprehension. He
is, after all, a layperson. If the attorney took the view that
the clients’s assessment of
his injury was more likely to be
accurate than that contained in the hospital records, then the
attorney could and
should have called for further x-rays
and/or examination before incorrectly stating the basis of
damages in the particulars
of claim. It is difficult to
comprehend upon what basis an attorney could elevate a layperson
client’s view above that
of medical examination and records.
20. Fourth,
it was explained to me that the process adopted in the office
of the Plaintiff’s attorney is
such that it is the articled
clerk or the candidate attorney who is responsible for
consultations, investigation, perusal
of documentation,
preparation of particulars of claim. This is not the purview of
the attorney under whose name the litigation
is instituted. In the
attorney’s affidavit, he states that he does not have an
independent recollection of this specific
matter and points out that
the “
probabilities dictate that I did not personally deal
with this matter at its inception as it is normally dealt with by the
more
junior members of my firm.”
He does, however,
describe the process that is followed in all new claims:
“
A consultation
will be arranged with a new client at which stage a statement is
taken from him or her. …. It is …probable
that the
plaintiff in this instance either arrived with his hospital records
at the first consultation or that he provided us with
these records
at a later stage. ….. A RAF1 medical form will be completed
and this will be lodged with the Road Accident
Fund together with all
the necessary supporting documentation. The RAF then has
4 (four) months to consider the claim.
Invariably, no
offer of settlement is made and summons is then issued…. …
In this particular instance the particulars
of claim was drawn by
Lauren Whittle who, at that time, was a candidate attorney with my
firm. At that stage she would have had
the hospital records as well
as the Plaintiff’s affidavit (and probably also the Accident
Report Form) as the source documents
from which the particulars of
claim were drafted. The Plaintiff alleges in his affidavit that
he sustained “a broken
right ankle” in the collision.
Whittle would have seen on pages 29 and 36 of the hospital records…
that there
is reference to a fractured right ankle and a fracture of
the right foot respectively. I can only surmise that Whittle did not
analyse pages 37 and 38 (part of the hospital records) of the said
bundle of documents in detail and that this is the reason why
the
particulars of claim contain the reference to a “fractured”
ankle….. The procedure followed in our firm
when summons is
issued is that a candidate attorney or professional assistant would
draw the particulars of claim and I would then
check the format
thereof. I do not refer back to the hospital records as this is
too time-consuming. …
I signed the particulars of
claim after I satisfied myself that the correct format was used.”
[2]
Based on the
aforesaid, heads of argument were submitted to the following effect:
“
The
plaintiff is interviewed by a candidate attorney. The hospital
records are obtained. During the first interview
the plaintiff
informs the candidate attorney that he has broken his ankle. On
receipt of the medical file, the candidate
attorney draws the
particulars of claim with reference to the hospital records and what
she has been informed by the plaintiff.
These particulars of
claim are then taken to Krynauw to check and sign. He does not
check whether the candidate attorney
has correctly interpreted the
hospital records or her instructions from the client as this is the
work of the candidate attorney.
He checks that all the
averments that have to be made are made.”
[3]
I understand both this
explanation and the argument to be that it is the candidate attorney
who is responsible for the
content of pleadings
and that the admitted attorney, who is principal to the
candidate attorney, does not
take responsibility for the
accuracy of pleadings. I believe that the relationship and
obligations of principal to candidate
attorney are matters on which
the Law Society is best able to comment.
21.
Fifth,
it was submitted that the claim for general damages based
upon the ‘fracture’ did not
refer to a ‘serious
injury’ as provided for in the RAF Act because the
amendment to the Act which limited
general damages to serious
injuries was under challenge at that time. The particulars of claim
and summons were signed on 30
th
March 2010 and a judgment of Fabricius J was handed down on 31 March
2010
[4]
. It was submitted
that it would have been “highly irresponsible” not to
have claimed general damages notwithstanding
that there had not been
a ‘serious injury’ as appears in the Act. I am of the
view that, although the amendments to
the Act may have been under
challenge, what is relevant is that the particulars of
claim referred to “
severe
bodily injuries
”
and a “
fractured
right ankle”
-
neither of which was correct.
22.
Sixth,, the
attorney set out that the procedure in his office “
after
the summons had been issued and the exchange of pleadings had been
completed, is to obtain medico-legal reports only once
a trial date
has been allocated
”
[5]
. It was submitted in argument that it cannot be
suggested that the plaintiff should not have been referred to
an
orthopaedic surgeon and an industrial psychologist (and
perhaps an occupational therapist because notice was given
in terms
of rule 36(9)(a) that ‘Adri Roos (occupational therapist) would
be called to give evidence
[6]
)
because “
it
cannot be suggested that the attorney should assess the injury and
make the decision as to whether the plaintiff may be
less
employable in the future that he may have been.
”
[7]
It was argued that “
It
is not for an attorney to decide on medical matters. He has a
client who complains that he has a fractured ankle and there
is
reference in the medical reports thereto. …. A person
who fills in a RAF1 from merely relies on these hospital
records
.”
[8]
This argument misses the point. It has never been
suggested that an attorney should determine the nature
and
extent and
sequelae
of
the injury sustained by this plaintiff or any other. What is of great
concern is that the first medical diagnosis was ignored.
If regard
had been had thereto, there would have been no need for the many
expert reports.
23. In the course
of argument I struggled to obtain two concessions or agreements from
counsel. The first is that that the
Baragwanath hospital records were
clear that there was no fracture. The second is that the
attorney who signed the particulars
of claim had done so without
regard to the foundation (ie the claimed fracture) which gave
rise to the particulars of claim
which he was signing. Both
concessions were eventually made.
CIRCUMSTANCES OF
INCURRING COSTS BY DEFENDANT ATTORNEYS
24. The affidavit of the
Defendant’s attorney and submissions of counsel focussed on
the need to commission
various medico-legal assessment
and reports prior to the trial in 2012. The attorneys
affidavit states no more
than that
“
we were
instructed to defend the said action on behalf of the Defendant. On
25 June 2012, a letter was sent to the plaintiff’s
attorneys of
record enquiring whether they had intended to send the plaintiff for
any medico-legal assessment in this matter.
It is apparent on
the summons that the plaintiff had sustained a fractured ankle.
…… We did not receive any
response to the letter. On 09
July 2012, we started securing medico-legal appointments for
the plaintiff to be assessed by
various medical-legal doctors.
It is practice that where the plaintiff has claimed for general
damages and loss of income,
that we appoint the relevant expert in
the field.”
[9]
“in my opinion, it had been prudent to protect the Fund’s
rights in order to rebut any case levied by the plaintiff,
as clearly
in this matter, if the defendant had only started acting in October
2012, when it received the plaintiff
36 9 (a) it would
have been too late, to secure appointments, from the opposing
experts.”
In response to my several
questions, counsel reiterated that the claim “had to be
properly investigated”.
25. I questioned
whether the two affidavits now presented by the
defendant’s attorneys gave
any indication that anyone in
the employ of the RAF had ever read the RAF claim form which stated
there was no fracture?
I questioned whether anyone in the
employ of the RAF had ever read the particulars of claim which
averred that there was a “fractured
right ankle”? I
questioned whether anyone in the RAF had drawn the notice of the
attorneys to the discrepancy between
the RAF form and the
Baragwanath hospital records on the one hand and the particulars of
claim on the other? I accept
that counsel was not appearing for
the RAF and was unable to answer these questions.
26. I then enquired
whether the attorney who was representing the RAF had noticed the
disparity between the RAF claim
form and the Baragwanath
records on the one hand and the particulars of claim on the other
hand? The answer was that the
attorney had not noticed.
27. This answer
rendered my further questions whether the defendant’s attorney
had taken any steps to terminate or limit
the litigation
somewhat irrelevant. I asked whether the defendant’s
attorney had written to the Plaintiff’s
attorney pointing out
that the medical records and the RAF claim form did not support the
particulars of claim? I asked
whether the defendants plea
had challenged the plaintiff’s claim by specifically stating
that the claim was disputed
because the medical
documentation contradicted the averments in the particulars of
claim? There could be and was no
positive answer to these
questions. All that was repeated was that these claims
“had to be properly investigated”.
28.
Nothing has
been advanced to suggest that the Defendant’s attorneys perused
the hospital records, the RAF claim form or the
particulars of
claim. On 14
th
September 2010 the Defendant’s plea was signed and the
only response to the averment of “severe bodily injuries”
[10]
of “fractured right ankle”
[11]
was to deny “
knowledge
of the allegations contained herein, accordingly cannot admit same
and puts plaintiff to the proof thereof.”
In short, the Defendants plea failed to challenge the incorrect
averment which was apparent to the Defendant
and it’s
attorney on the documents and actually invited further
litigation by requiring the Plaintiff to
prove these averments.
29. Some two years
after receipt of summons in May 2009, the Defendant’s
attorneys decided to obtain certain
assessments and reports in
July 2012. The orthopaedic surgeon confirmed what the attorney had
not noticed – there never had
been a fracture. Yet
counsel submitted that it “was in the interests of the
RAF for the attorney to be proactive
in getting medical-legal
reports”.
30. There is nothing
proactive about waiting two years and still failing to check
the hospital records and the RAF claim form.
There is nothing
proactive in failing, during this two year period,
to draw the Plaintiff’s attorneys attention
to the
contradiction between medical opinion and the claim.
There is nothing proactive about failing to
act in terms
of Section 24 of the Act. There is nothing
usefully proactive about commissioning
reports
from an occupational therapist and an industrial psychologist
when an unemployed plaintiff
has sustained a soft
tissue injury to the ankle.
31. It was argued that
the claim for loss of income remained alive to the day of trial.
There is nothing before me to suggest
that anyone cast a professional
legal eye over this claim and evaluated the merits of
incurring the costs of an occupational
therapist, an industrial
psychologist, an attorney and an advocate when the claim had
reduced to approximately
fifteen hundred rand (R
1500) in respect of time off from part time work to
obtain physiotherapy.
COSTS
INCURRED
32. Pursuant to my
order of 6
th
December 2012 I have been furnished with
documentation giving some indication of the legal costs incurred.
These are in respect
of disbursements only.
33. The
Plaintiff’s attorneys have furnished the following
documentation:
a. Industrial
Psychologists Ben Moodie (consultation, evaluation and
assessment) - R 8,950,00
b. Radiologists Drs
Matisonn et al (x rays and report) - R 746.20
c. Orthopaedic
Surgeon Mr G. Read (examination and report) - R 18 240.00
d. Attorney C
Pottinger (brief on day of trial) - R 2 250,00
e. Occupational Therapist
Adri Roos – no invoice submitted.
34. The
Defendant’s attorneys have furnished the following
documentation:
f. Radiologist Dr Bloch
(x rays and report) - R 1 250,00
g. Orthopaedic Surgeon Mr
JJ Van Niekerk (examination and report) R 8 326.00
h. Occupational Therapist
Megan Spavins (assessment and report) – R 7 900.00
i. Industrial
Psychologist Lance Marais - costs claimed directly from
RAF
j. Adv T C Tshidada
(brief, consultation with attorney, preparation, appearance at court)
- R 6 500.00
35. I have received
no information as to fees charged by either of the firms of attorneys
in the course of this litigation.
I would suspect that the
Plaintiff’s attorney has acted without recompense awaiting
successful finalisation of the matter.
However, it may be that
the Defendant’s attorneys have submitted interim statements of
accounts for services rendered.
However, I failed to ask for
such documentation and it was not provided.
36. It is
remarkable that in excess of R 50 000 (fifty thousand rand) of public
monies has been expended on disbursements
alone where
there was no more than a “soft tissue injury” to an
ankle and no damages are to be paid
over to the road accident
victim.
CONCLUSION
37. Advocate van
der Walt, who appeared for plaintiff’s attorney, vehemently
argued that a great injustice had been
done by myself to the
Plaintiff’s attorney, Mr Krynauw. Mr Krynauw was not
given an opportunity to be represented or
to respond to the
criticisms of himself prior to preparation of my judgment which
was marked ‘reportable’
and has received much
publicity . This injustice is all the greater because, so
argued Mr van der Walt, my judgment
was based upon an
incorrect analysis of the facts and all the facts were not before the
court when the judgment was written.
38. Mr van der
Walt strongly argued for absence of any fraudulent intent on
the part of plaintiff’s attorney.
Notwithstanding that
which is stated in both the attorney’s affidavit and Mr
van der Walt’s heads of argument,
negligence was not
conceded.
39. Since the
matter was heard in my chambers – it being presented
mainly on the basis of making a settlement
agreement an order
and there being a shortage of civil courtrooms during that
week - there is no record of the
proceedings in chambers.
I do not disagree with the recollections of Mr Pottinger as set
out in his affidavit. I must place
on record that Mr Tshidada
and Mr Pottinger briefly addressed me on the issue of the loss
of income and I made a ruling.
I was then presented with the
draft order. I expressed strong views about the (lack of) value
of an apportioned undertaking
with which Mr Pottinger
disagreed. I perused the records of Baragwanath hospital and I
expressed my views about the
discrepancy between the
Baragwanath hospital records and the averment in the particulars of
claim. It was explained to me
by both Mr Tshidada and Mr Pottinger
that there had been a previous injury sustained by plaintiff and
there may have been
an overlap of records. I certainly
expressed my concerns about the costs incurred. I
did, at
some point, leave my chambers to advise the
Deputy Judge President that I did not consider that this matter was
simply a matter of making an agreement an order of court.
40. I do believe
that it is important that I confirm that, once I had
examined the documentation and expressed
my preliminary views to
Messsrs Pottinger and Tshidada, I did not adjourn the matter
and offer either of the Plaintiff’s
or the
Defendant’s attorneys the opportunity to make
representations or give evidence on their conduct
before
I wrote my judgment.
41. I am not in
agreement with Mr van der Walt that anything has been indicated to
suggest that my judgment is based upon
an incorrect reading of the
documentation.
42. There is
nothing before me which indicates any justification for payment of
fees to plaintiff’s attorneys. There
is nothing before me which
indicates that the disbursements in respect of radiologists,
orthopaedic surgeons, occupational therapists
or industrial
psychologists should have been incurred on behalf of the Plaintiff.
The Plaintiff’s attorneys should
not recover the fees paid to
their ‘counsel’ Mr Pottinger.
43.
Notwithstanding that one letter only from the Defendant’s
attorneys may have terminated the litigation,
I am of the
view that the Defendant’s attorneys are entitled to their fees
in defending this claim and accordingly
their fees in
respect of the appearance to defend, the plea, the
pre-trial procedures and briefing counsel on trial
but not in respect
of instructing experts or perusing their reports ( save in
respect of the radiologist Dr Bloch.)
Only the fees in respect
the radiologist, Dr Bloch, should have been incurred by defendant.
Once incurred, his report
would have made it clear that no
further medical reports were required and would have disposed
of the matter.
The Defendant’s attorneys are entitled to
the fees paid to their counsel, Adv Tshidada.
44. Accordingly,
the order which is made is as follows:
1. The Plaintiff’s
attorney shall recover no fees or disbursements
from the Plaintiff and
the RAF shall not be liable
for payment of any fees or disbursements incurred
by the Plaintiff or
his attorney in this litigation.
2. The Defendant’ s
attorneys are entitled to be paid their ordinary fees and
disbursements by their client,
the RAF, including
counsels fees on trial and in respect of radiologist Dr Bloch but
shall not be entitled to
recover from their client, the RAF,
the disbursements paid in respect of orthopaedic
surgeon Mr JJ Van
Niekerk, occupational therapist Megan Spavins or
industrial psychologist Lance Marais which costs are to be borne
de
bonis propriis
by the Defendant’s attorney.
DATED AT JOHANNESBURG
30
TH
APRIL 2013
K. SATCHWELL
Counsel for the
Plaintiff: Wim Kraynauw Attorneys
Attorneys for the
Plaintiff: Adv. K. Holland
Counsel for the
Respondent: Sishi Incorporated
Attorneys for Defendant:
Adv. T C Tshidada
Date of hearing: 15
th
March 2013
Date of Judgment: 2
nd
May 2013
[1]
See
Ferreira
v Levin, Vryenhoek v Powell 1996(2) SA 621 (CC)
at
paragraph [3].
[2]
Extracts from paragraphs 8.1 to 13 of affidavit of Mr Krynauw.
[3]
Extracts from paragraphs 12.4 of plaintiff’s heads
of argument.
[4]
I was not furnished with the reference to or citation of this
judgment.
[5]
Paragraph 16 of Mr Krynauw’s affidavit.
[6]
Notice dated 10
th
October 2012.
[7]
Paragraph 16 of plaintiff heads of argument.
[8]
Extract from paragraph 16.1 of plaintiff heads of argumens.
[9]
Extracts from paragraphs 6 to 9 of Mr Sishi affidavit.
[10]
Paragraph 5 of particulars of claim.
[11]
Paragraph 6.1.1 of particulars of claim.