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[2016] ZAGPJHC 237
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Mbatha v Road Accident Fund (06771/2015) [2016] ZAGPJHC 237; 2017 (1) SA 442 (GJ) (26 August 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
number: 06771/2015
DATE:
26 AUGUST 2016
In
the matter between:
MBATHA
BONGANI
..................................................................................................................
Plaintiff
And
ROAD
ACCIDENT
FUND
......................................................................................................
Defendant
SUMMARY:
Costs
disallowed at preliminary stage of proceedings.
Trial action
partially resolved by settlement – merits of the action (i.e.
negligence or fault) agreed; an undertaking to
pay future healthcare
costs ‘after such costs have been incurred and upon proof
thereof’. Draft order deals at great
length with costs to be
paid on High Court scale to legal representatives and to medical and
other ‘experts’.
Court
refused to award costs at this stage and ordered costs to be “costs
in the cause”. The reasons were
(1)
No examination, reports or opinions of any identified or unidentified
‘experts’ are before the court and have not
been utilised
to reach this preliminary agreement on merits. The legal
representatives themselves have not utilised nor agreed
on these
reports and the experts. The court has no idea who may, or may not,
ever be utilised as an ‘expert’. Such
‘expert’
has not yet contributed to any result – which result is
currently only the issue of fault as to the
accident.
(2)
The judge presented with an agreement only on the merits has no idea
of idea of the injuries sustained or their
sequelae
or the
financial consequences thereof and the likely quantum of damages. The
focus has been on merits only. Perusal of pleadings
is of no
assistance. I have in this week been asked for high court costs where
only a minimal amount has been agreed and when I
checked the
particulars of claim found a claim for R 2.5 million (two million
five hundred thousand rand). In other words, the
pleadings give no
indication of the ultimate result. Thirdly, it would be most improper
of a judge to have a peek at the reports
of the various potential
witnesses who may perhaps be called as experts to form a preliminary
opinion as to the ballpark of possible
quantum of damages. Absent any
idea as to the quantum of damages which may be awarded (if any), a
court is placed in a very difficult
position as to the scale of costs
which should be incorporated in such an order made by the court. I
decline so to do where I have
no idea at all as to the possibility of
any quantum ever being determined.
(3)
The section 17(4)(a) undertaking only has financial value if and when
healthcare treatment is required, the patient himself
or herself pays
for such treatment and thereafter claims a refund from the RAF. A
judge who has heard no evidence on the injuries
sustained and the
medical and other treatment which may be required in the future can
have no view on the quantum of or the financial
implications of such
undertakings. In numerous matters I was asked to have regard to the
so-called ‘medico-legal’ reports
so that I could extract
therefrom the opinions of potential but unheard witnesses as to what
might be the cost of treatment in
the future. The problems are
obvious – I have not heard from such witnesses, I do not know
whether their opinions should
be accepted, most importantly their
opinions have obviously not been accepted by both parties and legal
representatives since they
have been unable to settle quantum based
on those reports and opinions.
(4)
What is casually called a ‘road accident claim’ or an
‘RAF claim’ is a claim for damages. A decision
as to the
merits is merely a preliminary stage on the way to achieving the
intended outcome – monies paid over as damages.
When presented
with an agreement that merits have been settled but nothing else, I
would expect a court to have some concern why
it is expected that
fees and disbursements should be paid when there is no actual
outcome, no identifiable result, and no money
in the pocket of the
road accident victim. It may of course be that the matter is never
pursued for actual damages. Where the parties
cannot resolve the
question of quantum at this stage when they are in the very court
tasked with trying to allocate these disputes
to be heard by civil
trial judges then one would expect the legal representatives to stand
up and say that they have resolved the
merits and ask to be allocated
to a trial judge for quantum to be determined. After all, they have
claimed to be and have been
judicially certified as ‘trial
ready’ in accordance with the new judicial case
management/certification procedure.
No case is placed on the trial
roll unless the parties have claimed at a hearing before a judge that
the case is ‘trial ready’
and the judge has, after
investigation, so certified. There should be nothing to prevent any
party from asking for allocation for
quantum to be determined instead
of asking for the determination of quantum to be postponed
indefinitely.
JUDGMENT
SATCHWELL J:
INTRODUCTION
1.
At issue, on more than one occasion this
week, in the hundreds of trial matters where the RAF is the
defendant, has been the question
of payment of legal and ‘expert’
costs where no funds whatsoever were to be transferred by way of
damages to the plaintiff
road accident victims.
2.
I
am indebted to Advocate C. Tshidada who was the only counsel who took
the time and the trouble to argue the matter – without
preparation but with vigour and sense. I handed down a very
extempore
ruling with reasons in the middle of roll call of some 80 matters so
that all legal representatives would understand my reasoning.
I
indicated at the time that I would have the judgment transcribed and
would correct same so that it might become coherent and
of
assistance.
[1]
3.
I also encouraged Advocate Tshidada to
bring an application for leave to appeal notwithstanding that my
ruling is obviously both
provisional and limited to the issue of
costs. This is an important issue and certainly operates to the great
disadvantage of the
legal representatives of the plaintiff road
accident victims whilst the defendant RAF legal representatives
continue to be paid
for all their services irrespective of their
success or failure and whether or not only a preliminary stage of the
litigation is
reached. It may well be that other judges, thinking
slowly and carefully and without the pressure of managing some 350
matters
set down for the trial roll in one week, may come to a
different opinion.
THE PROBLEM
4.
In this particular matter the draft order
presented to me reads as follows:
“
By
agreement between the parties and having considered the matter, it is
ordered that:
1.
The issue of liability is separated from
the issue of quantum in terms of Rule 33(4) of the Uniform Rules of
the court.
2.
The Defendant shall be liable for 80% of
the Plaintiff’s proven and agreed damages suffered by the minor
child as a result
of a motor collision in question.
3.
The defendant shall furnish to the
plaintiff on behalf of the minor an undertaking in terms of
section
17(4)(a)
of the
Road Accident Fund Act 56 of 1996
, for the costs of
future accommodation of the plaintiff in a hospital or nursing home,
or treatment of or rendering of a service
or supplying of goods to
the plaintiff, arising out of the injuries sustained in a motor
vehicle collision in question and the
sequelae
thereof, after such costs have been incurred and upon proof thereof,
limited 80%.
4.
The issue of quantum is postponed
sine
die
.
5.
The Defendant shall be liable for costs of
the action to date hereof on high court scale.
6.
The defendant is to make payment of the
taxed costs within fourteen days of taxation, such costs to include
the costs of counsel
and costs of medico legal experts who assessed
and filed medico legal reports on behalf of the plaintiff.
7.
The defendant is to make payment of the
taxed costs within (14) days of taxation.
8.
Contingency fee agreement is not in
compliance with the Contingency Fee Agreement Act, in the
circumstances it is declared null
and void.
9.
The plaintiff’s attorney shall be
entitled to recover from the plaintiff such fees as are taxed or
assessed on an attorney
and own client basis. The fees recoverable as
aforesaid are not to exceed 25% of the amount awarded or recovered by
plaintiff.”
5.
In
approximately 50% of the matters where I was asked to make draft
orders an order of court, the tenor of the draft order is to
the same
effect although some do spell out the number of and names of experts
whilst others do not. That number seems to range
from about 5 to 13
experts.
[2]
The draft order in
this particular case does not reveal the identity or occupations or
the number of ‘medico-legal experts’
who are to be paid.
6.
What I have found striking is the absence
of any result of any significance whatsoever for the plaintiff road
accident victim. It
is of no assistance to them that they have
succeeded on the merits and that the ‘insured driver’ in
the form of the
RAF is agreed to be negligent. There is, after all,
no sign that the RAF will perhaps one day be liable to pay some
monies over
to the plaintiff if and when any damages are proven.
7.
The section 17(4)(a) undertaking only has
value to a plaintiff road accident victim who is in the happy
position of being able to
fund his or her own medical or hospital or
other expenses associated with injury and thereafter prove such
expenditure to the RAF
and claim a refund. Of course, absent any
payment of monetary damages to the plaintiff road accident victim,
many (if not most)
of such victims are unable to make payment in
advance and therefore cannot claim a refund from the RAF with the
result that the
undertaking is not of any great practical effect.
8.
Accordingly, when calling the trial roll
i.e. managing the court in which trial disputes are allocated to
judges, making orders
of court where trials have become settled,
postponing or removing matters, I have queried the focus on payment
of fees to legal
practitioners and to ‘experts’ in the
absence of any payment to the plaintiff road accident victim.
COSTS RESERVED OR
COSTS IN THE CAUSE
9.
My reasoning in this particular matter and
in others of identical import is as follows.
10.
I am being asked to make an order that the
merits of the road accident are settled and the issue of quantum (if
any) is postponed
to another day. I am asked to award costs on the
High Court scale to advocates and attorneys and the healthcare
practitioners or
actuaries who may perhaps be used as expert
witnesses when it comes to the issue of quantum.
Merits of
negligence or fault in a motor accident do not require medical
experts.
11.
At this stage of the proceedings, all the
court has been asked to do is to make an order that the parties have
agreed the issue
of merits – which party was entirely or
partially responsible for the road accident.
12.
The court is not asked to make any finding
and there is no agreement between the parties that any injuries have
been sustained,
that such injuries are of a nature that they have any
sequelae
,
that past or future medical or other expenses have or will be
incurred, that future therapy of any sort is required, that the
earning capacity of the road accident victim is impaired in any way
or that the plaintiff should receive general damages as a form
of
solatium
.
13.
Accordingly, the examinations and reports
and opinions of the orthopaedic surgeons, neurosurgeons,
neurologists, ophthalmologists,
audiologists, psychologists,
occupational therapists, actuaries and so on are not before the court
at this stage. In coming to
a decision to endorse the settlement
reached between the parties, the court is not asked to and has no
regard to the opinions of
these potential ‘expert’
witnesses. Nor have the legal representatives themselves reached any
views of the opinions
of the potential ‘expert’ witnesses
since they have reached no agreement in regard thereto – they
have only agreed
on the fault involved in road accident.
14.
No court should therefore order that the
fees of ‘experts’ be paid at this stage. No court has any
idea of who may be
called as a witness and who may not. No court has
any idea of the purpose for which a witness may be called and if he
or she will
be found to be an ‘expert’. No court knows
what reliance may be placed on the opinion of this potential witness
if
such opinion is actually tendered.
15.
In any event, no such ‘expert’
witness has contributed to the only result achieved thus far –
agreement as to
the cause or fault involved in the road accident. The
only ‘expert’ witnesses who may have contributed to such
agreement
on the merits is an engineer, a mechanic, an accident
reconstruction expert or any other person whose expertise has been
used to
determine the merits i.e. the circumstances of the road
accident and the fault (if any) associated therewith. There has been
no
indication in this, or any other matter, that the services of such
an expert have been used and his or her fees should be covered
in the
draft order.
The scale of fees
16.
Mr Tshidada asked for a further opportunity
to address the court after I had made my ruling. I listened to him.
He pointed out that,
if the matter had been heard as a trial and the
court had itself decided on the merits, then the successful party
would be entitled
to ask for costs. Accordingly, it was unfair to
penalise legal practitioners merely because they had settled this
issue and asked
that it be made an order of court when, after a trial
on the merits only, they would have been awarded their fees.
17.
His argument has merit. However, I did not
and do not find it persuasive.
18.
It
is correct that, at the end of a trial, a judge would make an order
as to the merits and, assuming that there has been a separation
of
issues and quantum
[3]
is to be
heard at a later date, would usually be asked to make an order as to
costs. However, the difficulty both for a trial judge
where there is
a separation and also for the judge managing the trial roll call is
that the judge has no idea as to whether or
not costs should be
awarded on the magistrate or regional or high court scale.
19.
This is not a minor issue. Firstly, in such
circumstances the trial or roll call judge has no idea of the
injuries sustained or
their
sequelae
or the financial consequences thereof and the likely quantum of
damages. The focus has been on merits only. Secondly, perusal of
pleadings is of no assistance. I have in this week been asked for
high court costs where only a minimal amount has been agreed
and when
I checked the particulars of claim found a claim for R 2.5 million.
In other words, the pleadings give no indication of
the ultimate
result. Thirdly, it would be most improper of a judge to have a peek
at the reports of the various potential witnesses
who may perhaps be
called as experts to form a preliminary opinion as to the ballpark of
possible quantum of damages.
20.
Absent any idea as to the quantum of
damages which may be awarded (if any), a court is placed in a very
difficult position as to
the scale of costs which should be
incorporated in such an order made by the court. I decline so to do
where I have no idea at
all as to the possibility of any quantum ever
being determined.
The section 17(4)
(a) undertaking
21.
All
draft orders reflecting agreement reached between the parties which
include a clause in respect of an undertaking conclude with
the words
“after such costs have been incurred and upon proof
thereof”.
[4]
These words
are correctly taken directly from Act 56 of 1996.
22.
The result is that an undertaking, as
provided for by Statute, only has financial value if and when
healthcare treatment is required,
the patient himself or herself pays
for such treatment and thereafter claims a refund from the RAF. I
have already pointed out
the difficulties in obtaining any refund
from the RAF where the patient is without means and cannot make
advance payment and is
in receipt of no damages to fund such advance
payment.
23.
A judge who has heard no evidence on the
injuries sustained and the medical and other treatment which may be
required in the future
can have no view on the quantum of or the
financial implications of such undertakings.
24.
In numerous matters I was asked to have
regard to the so-called ‘medico-legal’ reports so that I
could extract therefrom
the opinions of potential but unheard
witnesses as to what might be the cost of treatment in the future.
The problems are obvious
– I have not heard from such
witnesses, I do not know whether their opinions should be accepted,
most importantly their opinions
have obviously not been accepted by
both parties and legal representatives since they have been unable to
settle quantum based
on those reports and opinions.
25.
In several cases I was referred to medical
reports in an attempt to argue that the quantum of the value of the
undertaking would
bring the total capital above magistrate court
costs. One expressed the opinion that there is a 2% possibility that
epilepsy might
result and I was then asked to take into account the
cost of medication required to control epilepsy. I took the view that
a 2%
possibility did not meet the test of a “balance of
probability”. Another expressed the opinion that the patient
will
require physiotherapy costing R 8000 per month which would
suggest that two sessions of physiotherapy a week will be provided by
a physiotherapist charging R 1000 per session when the rates allowed
by the Health Professions Council do appear encompass such.
I did not
find such opinions as to costing compelling but of course I had not
heard from the potential witness themselves. But,
as I have pointed
out, both parties did not simultaneously find the opinions compelling
since they could not agree on quantum based
on those reports.
26.
In the present case, I cannot find that a
section 17(4)(a) undertaking by the RAF that it will pay up to 80% of
the healthcare costs
“after such costs have been incurred and
upon proof thereof” is any indication to the court that the
plaintiff has
or will receive any benefit in respect of such
undertaking and that such undertaking justifies success for the road
accident victim.
No proven damages
27.
What is casually called a ‘road
accident claim’ or an ‘RAF claim’ is a claim for
damages. A decision as
to the merits is merely a preliminary stage on
the way to achieving the intended outcome – monies paid over as
damages.
28.
When presented with an agreement that
merits have been settled but nothing else, I would expect a court to
have some concern why
it is expected that fees and disbursements
should be paid when there is no actual outcome, no identifiable
result, and no money
in the pocket of the road accident victim.
29.
It may of course be that the matter is
never pursued for actual damages.
30.
Where the parties cannot resolve the
question of quantum at this stage when they are in the very court
tasked with trying to allocate
these disputes to be heard by civil
trial judges then one would expect the legal representatives to stand
up and say that they
have resolved the merits and ask to be allocated
to a trial judge for quantum to be determined.
31.
After all, they have claimed to be and have
been judicially certified as “trial ready” in accordance
with the new judicial
case management/certification procedure. No
case is placed on the trial roll unless the parties have claimed at a
hearing before
a judge that the case is “trial ready” and
the judge has, after investigation, so certified. There should be
nothing
to prevent any party from asking for allocation for quantum
to be determined instead of asking for the determination of quantum
to be postponed indefinitely.
32.
There are some cases where the parties
advise the court that they have settled the merits, have agreed
general damages, have agreed
loss of earning capacity but are unable
to agree contingencies and they are allocated a judge for that
limited issue to be determined.
Many times the disputes are not so
narrowly limited in respect of quantum and the allocated judge is
asked to determine wider issues
or every issue pertaining to quantum.
33.
In this week in the trial court (22
nd
to 26
th
August 2016) we were able to allocate all those matters requiring to
be allocated to a judge from both the previous court week
and this
week. This was thanks to some incredibly hard working judges some of
whom heard three or four or five matters per day.
In other words,
there is no reason why those who have settled merits but are unable
to agree quantum cannot ask to be allocated
to a trial judge to hear
their dispute on quantum for which they have claimed to be “trial
ready”.
CONCLUSION
34.
It was for these reasons, regrettably not
set out with clarity or coherence that I made the numerous rulings on
costs which I did
this week. In some cases the order was “costs
in the cause” and in others it was “costs reserved”.
The
parties elected the form of the ruling.
35.
In the present matter I amended the draft
order presented to me. Paragraphs 5,6,7,8 and 9 were deleted and a
new paragraph substituted
dealing with costs.
36.
Accordingly, an order was made:
a.
The draft order as amended is made an order
of court.
b.
The draft order as amended by deletion of
paragraphs 5,6,7,8 and 9 and substitution of a new paragraph 5 which
reads “the
costs of the action to date are costs in the cause”.
DATED
AT JOHANNESBURG 26
TH
AUGUST 2016
SATCHWELL
J
Dates
of hearing: 23
rd
August 2016.
Date
of Judgment: 26
th
August 2016.
[1]
The
original extempore judgment is messy and somewhat unclear. It is
attached to this judgment to ensure that what I now tender
is not a
complete reworking of my reasoning but a ‘correction’ to
ensure that what I said is of greater assistance.
Rule 42 allows for
clarification of a judgment.
[2]
The
number of matters where there are such draft orders is approximately
30% of the total number of cases on the roll.
[3]
In
terms of Rule 33(4) of the Uniform Rules.
[4]
Section
17(4)(a)(i)