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[2020] ZAGPJHC 123
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Badrschneider v Road Accident Fund (34198/2015) [2020] ZAGPJHC 123 (13 May 2020)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED:
YES
CASE
NO: 34198/2015
In the matter of:
BADERSCHNEIDER,
STEFANIE
Plaintiff
and
THE
ROAD ACCIDENT FUND
Defendant
JUDGMENT
BESTER
AJ
[1]
On
2 April 2012, the plaintiff was involved in a motor vehicle
collision. She instituted a claim for damages against the
defendant. The parties settled the question of liability on the
basis that the defendant shall be liable for 80% of the plaintiff’s
admitted or proven losses flowing from the incident. At trial
the plaintiff persisted only with a claim for past hospital
and
medical expenses.
[2]
The
plaintiff is ordinarily resident in Germany and returned there
approximately a week after the incident. Her claim is composed
of two parts: R65 784,45 in respect of medical and hospital
expenses incurred in South Africa, and €30 403,63 for
costs
incurred for her return to Germany under medical supervision.
Although it seems that she underwent further treatment
in Germany,
those costs were not claimed in this action.
[3]
At
the commencement of trial, the defendant raised a legal objection
from the Bar. I was informed that the facts giving rise
to the
objection only became known to the defendant earlier that morning.
By agreement between the parties, I was handed
a document which
formed the basis of the objection. In terms thereof, the
plaintiff ceded her right, title and interest in
her claim for
inter
alia
past hospital
and medical expenses to HUK-COBURG-Krankenversicherung AG, on 27
September 2019.
[4]
On
the strength of the cession, the defendant argued that the plaintiff
no longer had
locus
standi
in
iudicio
to pursue the
claim, and that, until such time as the cessionary has been
substituted as the plaintiff in the matter, the trial
could not
proceed.
[5]
The
cession took place after
litis
contestatio
had been
reached. In
Waikiwi
Shipping v Thomas Barlow & Sons
[1]
the Appellate
Division made it clear that, where a cession takes place after
litis
contestatio
, the
transfer of rights only becomes effective if the Court allowed the
cessionary to be substituted as the plaintiff. The
Court has a
discretion whether or not to allow the substitution, and will refuse
to do so if there is any prejudice to another
party. If the
cessionary wishes to proceed with the action in its own name, it
requires the Court’s permission to be
substituted, and until
that is done, the cedant retains
locus
standi
to pursue the
claim.
[2]
[6]
In the result, the
defendant’s objection was dismissed, and the trial proceeded.
[7]
The
plaintiff’s Rand denominated claim, for costs incurred in South
Africa, consisted of sixteen items, of which thirteen
were admitted
by the defendant during opening address, amounting to R59 906,17.
The remaining R3 475,20 was not
pursued further by the
plaintiff.
[8]
The
plaintiff’s Euro denominated claim, for expenses relating to
her return to Germany, consisted of five items. She
called two
witnesses in her attempts to prove these items.
[9]
The
plaintiff’s first witness was Dr David Frederik van der Merwe,
an orthopaedic surgeon. He testified that he treated
the
plaintiff at the Nelspruit MediClinic from her admission on 3 April
2012 until her discharge on 9 April 2012. He did
not prepare a
medico-legal report, but a letter written by Dr van der Merwe to the
plaintiff’s attorneys on 2 July 2018 (thus
more than six years
after the incident) was introduced through his evidence. In the
letter, he set out the injuries the plaintiff
sustained: (i) a right
clavicle fracture, (ii) a right pelvic fracture, and (iii) a liver
laceration.
[10]
Mr
Roos, for the defendant, objected to Dr Van der Merwe’s
evidence regarding the plaintiff’s injuries, on the basis
that
such evidence is of an expert nature, and no notice in terms of
Uniform Rule 36(9) had been given that he will be called as
an
expert. Mr Botha, for the plaintiff, did not seek leave to
introduce Dr Van der Merwe’s expert evidence without
notice,
and left the matter there. Dr Van der Merwe could not speak to
any of the expense vouchers contained in the documents
bundle with
which the plaintiff sought to support her claim.
[11]
The
second witness for the plaintiff was Dr Mark Bryan Deacon, a
specialist orthopaedic surgeon. Dr Deacon examined and
interviewed
the plaintiff on 6 December 2019 in Switzerland. He
had not been involved in her treatment.
[12]
Dr
Deacon compiled a medico-legal report pursuant to his examination of
the plaintiff, and notice had been given that he would be
called as
an expert witness. His expertise and qualifications were not
challenged by the defendant.
[13]
The
opinion on which the plaintiff sought to rely, was expressed as
follows in Dr Deacon’s report and confirmed by him during
his
testimony:
“Observation and possible intervention might have been required
during aeromedical transfer due to the seriousness of her
injuries.
The patient suffered significant trauma which necessitated
hospitalisation before and after transfer. She would
require
observations, bed rest (unable to sit for a prolonged period of time
due to her injuries) and analgesia during such a flight
and would
need to be monitored for possible complications and treated should
such arise.
In my opinion the patient warranted this medical assistance during
her repatriation to ensure the safety of herself during a long
international transfer in the form of monitoring, patient comfort,
analgesia and medical expertise should the possibility of
complications
arise.”
[14]
Dr
Deacon testified that he had some experience with commercial medical
repatriation by air. He testified that a patient in
the
situation that he understood the plaintiff to have been in, would
have required two people to assist her, so that she could
be carried
on a stretcher if she could not walk, and that at least six economy
seats would have had to be booked for her and the
two individuals
accompanying her. He was however unable to comment on the costs
pertaining to such repatriation or speak
to the specific vouchers
that the plaintiff had included in the documents bundle.
[15]
The
facts relied upon by Dr Deacon in his report and evidence were
obtained by him from the plaintiff and gleaned from the medical
documentation that he reviewed in respect of her treatment.
These facts were not admitted by the defendant, who argued that
the
evidence was hearsay. Since the probative value of the evidence of
these facts depends on the credibility of persons other
than Dr
Deacon, I agree.
[3]
The plaintiff did not seek to establish a basis upon which the Court
should receive the hearsay evidence, and no reasons presented
themselves to do so.
[16]
Mr
Roos argued that Dr Deacon’s opinion should thus be
disregarded. He referred to
Lornadawn
Investments v Minister van Landbou,
[4]
where Botha J approved of what was said in
The
Queen v Landouceur,
10
LCR 156:
[5]
“It is axiomatic that where a Court is asked to accept the
opinion evidence of an expert, the facts on which the opinion
is
based, if not admitted by the other party to the action, must be
established in the ordinary way by direct or by circumstantial
evidence. It is also axiomatic that an expert is not entitled,
any more than any other witness, to give hearsay evidence
as to any
facts, … unless and until the facts on which the opinion is
given have been established in the ordinary way, and,
to the extent
that these facts remain unproven, or to the extent that the opinion
does not reflect proven facts, the opinion [must]
be disregarded.”
[17]
I
agree with the defendant that Dr Deacon’s opinion on these
matters must be disregarded, in circumstances where his underlying
assumptions regarding the injuries, the treatment thereof and the
plaintiff’s condition at the time of her flight, have not
been
proven.
[18]
The
defendant elected not to call any witnesses.
[19]
In
Mutual & Federal v
Da Costa
[6]
the Supreme Court of Appeal endorsed what is referred to as the
‘robust approach’ to the assessment of the quantum
of
damages, as set out in
Hersman
v Shapiro,
[7]
where Stratford J explained as follows:
“Monetary damage having been suffered, it is necessary for the
Court to assess the amount and make the best use it can of
the
evidence before it. There are cases where the assessment by the Court
is very little more than an estimate; but even so, if
it is certain
that pecuniary damage has been suffered, the Court is bound to award
damages.
It is not so bound in the case where evidence is
available to the plaintiff which he has not produced; in those
circumstances the
Court is justified in giving, and does give,
absolution from the instance.
But where the best evidence
available has been produced, though it is not entirely of a
conclusive character and does not
permit of a mathematical
calculation of the damages suffered, still, if it is the best
evidence available, the Court must use it
and arrive at a conclusion
based upon it.” (emphasis added)
[8]
[20]
The
plaintiff’s claim required her to prove the costs incurred in
respect of the medical transfer, which required her to prove
the
specific costs incurred, their necessity and their reasonableness.
For this, she sought to rely on vouchers. In
Howard
& Decker v De Sousa
[9]
the way private documents are proved was summarised in the following
terms:
“The law in relation to the proof of private documents is that
the document must be identified by a witness who is either
(i) the
writer or signatory thereof, or (ii) the attesting witness, or (iii)
the person in whose lawful custody the document is,
or (iv) the
person who found it in possession of the opposite party, or (v) a
handwriting expert, unless the document is one which
proves itself,
that is to say unless it:
(1) is produced under a discovery
order, or
(2) may be judicially noticed by
the Court, or
(3) is one which may be handed in
from the Bar, or
(4) is produced under a subpoena
duces
tecum
, or
(5) is an affidavit in
interlocutory proceedings, or
(6) is admitted by the opposite
party.”
[21]
The
vouchers which the plaintiff sought to rely, were not document which
prove themselves. None of the other options were followed
by the
plaintiff.
[22]
The
parties agreed at a pre-trial conference that “
the
documents in the
[trial]
bundles are what they
purport to be without admitted the truth and contents thereof…”
.
I respectfully agree with the approach of Sutherland J in
Thomas
v BD Sarens
[10]
:
“The almost universal practise of preparing a bundle of all the
documents that might be referred to in evidence is a boon
to ordinary
litigation. However, it invariably occurs that not all the
documents in a bundle are traversed in evidence.
In my view, a
document not traversed in evidence is not before the Court, unless a
prior agreement exists that it be admitted in
a fashion other than
through legitimate reference in evidence by a witness competent to
comment thereon. The customary mantra
that ‘all documents
in the bundle are what they purport to be without any admission to
the truth of their contents’
confers no evidential status on a
document unless it is introduced through a witness capable of
addressing the contents, called
by one or other of the opposing
parties.”
[23]
In
July 2019 the plaintiff delivered a notice in terms of uniform rule
35(9), in which she sought the defendant’s admission
that the
schedule of expense items and the underlying vouchers were properly
executed and are what they purport to be. The plaintiff
added a
request in its notice that is not catered for in the sub-rule: if the
admissions are not made, the defendant must provide
reasons for its
refusal to do so. Such a request can of course be made in
terms of Uniform Rule 37(4).
[24]
No
response was received within the allowed ten-day period. The
sub-rule provides that, if no response is received, the party
that
issued the notice may produce the documents at trial without further
proof. However, any admission in terms of this
rule would not
amount to an admission of the contents of the document.
[11]
The plaintiff subsequently brought an application to compel the
defendant’s compliance with the notice, which order
was granted
on 25 September 2019. Pursuant thereto, the defendant delivered
a notice in which it refused to make any of the
admissions sought,
without providing the reasons for its refusal.
[25]
In
the minute of a further pre-trial conference, held on 3 October 2019,
the parties recorded that the plaintiff inquired from the
defendant
whether the latter required the presence of every treating doctor and
medical specialist who treated the plaintiff both
in South Africa and
Germany to attend at court on the trial date to prove each and every
account listed in the two schedules, and,
if so, whether the
defendant will pay for the costs pertaining thereto.
[26]
The
defendant’s response was that it is the plaintiff’s
prerogative to conduct her trial as she sees fit. The
plaintiff
again requested the defendant to admit the expenses or at least
provide reasons for its refusal to do so. This was met
with the
response that it is for the plaintiff to prove her claim.
[27]
Despite
being clearly forewarned that she would be required to prove her
expenses at trial, the plaintiff failed to produce any
evidence to
prove the contents of the vouchers she relied upon, or the necessity
for and the reasonableness of the costs reflected
therein.
[28]
In
closing argument, Mr Botha, for the plaintiff, raised three
arguments. First, he pointed out that the schedules were
provided
to the defendant months before the trial, and the defendant
refused to provide reasons as to why it denied the claims. That,
of course, amounts to nothing more than a plea
ad
misericordium
.
[29]
Mr
Botha also argued that the costs were clearly reasonable, because, as
he put it, “
an
airline ticket price is an airline ticket price
”.
This proposition does not hold true. It also ignores the problem that
the documents had not been proven
in the first place, and that it
requires the Court to draw conclusions from vague statements in the
unproven documents. For instance,
the only statement (from an
unidentified author) to be found in these vouchers regarding charges
by or for the persons who accompanied
the plaintiff, is the
following:
“The escorting persons are physicians and paramedics for whose
services the respective daily rates have been determined with
our
cooperation partner. (€1000.00 / €750.00 daily rate).”
[30]
The
plaintiff did not, for instance, explained why these persons had to
be paid in Euro.
[31]
Lastly,
the plaintiff argued that it would have been too expensive to bring
the witnesses to court in South Africa. There
are several fatal
difficulties with this argument. To start with, this does not
excuse the plaintiff from having to prove
her claim. In any event,
there is no evidence as to who the individuals are who had to
testify, and that they are all in fact in
Germany or elsewhere
outside of the Republic of South Africa. The argument also
wrongly assumes that there are no alternatives
to a witness’s
physical presence in court.
[32]
Mr
Botha conceded that the plaintiff made no attempt to present any of
this evidence on affidavit. Rule 38(2) provides that whilst
witnesses
at the trial of any action shall be orally examined, a court may at
any time for sufficient reason order that all or
any of the evidence
to be adduced be given on affidavit on such terms and conditions as
it may seem meet. No attempt was
made to make use of this rule,
not even when I inquired as to whether this avenue was considered by
the plaintiff. In fact,
the parties expressly agreed that no
evidence shall be led by affidavit, according to the minute of the
pre-trial conference held
on 11 April 2019, and the issue was not
revisited at the subsequent conference where this very issue, namely
the cost of bringing
witnesses to South Africa, was raised by the
plaintiff.
[33]
In
addition, no consideration was given to the possibility of video
conferencing as a way of procuring oral evidence from the
unidentified
witnesses. As was remarked by Satchwell J in
Uramin v Perie
[12]
:
“It is now almost trite that video conferencing ‘is an
efficient and an effective way of providing oral evidence both
in
chief and in cross-examination’ and that this is ‘simply
another tool for securing effective access to justice’.
(see para 10 of the speech of Lord Carswell in Polanski v Conde Nast
Publications Limited
[2005] UKHL 10).
This process has been
utilised in numerous South African Courts.” (further footnotes
omitted).
[34]
This
is not a matter where the plaintiff failed to produce the best
evidence to prove her damages; rather, she failed to produce
any
evidence.
[35]
In
the result, the plaintiff is only entitled to judgment in the amount
admitted by the defendant at the commencement of trial,
reduced in
terms of the agreement regarding liability. The plaintiff is
therefore entitled to 80% of R59 906,27, thus
R47 925,02.
[36]
The
plaintiff’s counsel urged me to award costs in favour of the
plaintiff on the attorney and client scale, because, he argued,
the
defendant was unreasonable in refusing to admit the various claims.
No such unreasonableness was however shown to exist.
[37]
The
defendant argued that no costs should be allowed because the
plaintiff was not substantially successful. I agree.
The
plaintiff originally sued for the sums of R1 719 031,03
plus €36 797,95. She succeeds in an amount
of less
than R50 000,00. It would in my view not be just to burden
the defendant with the cost of the action.
[38]
In
the result the following order is made:
1.
Judgment
is granted in favour of the plaintiff for the payment of R47 925,02.
2.
The
above amount shall bear interest at the rate of 9% per annum,
calculated from 14 days after date of this judgment.
3.
No
order is made in respect of costs.
A
Bester
Acting
Judge of the High Court of South Africa
Gauteng
Local Division, Johannesburg
Heard:
27 and 28 January 2020
Judgment:
Handed down electronically on
13 May 2020
Counsel
for the Plaintiff:
Adv
Botha
Instructed
by:
A Wolmarans Inc
Counsel
for the Defendant:
Adv JT Roos
Instructed
by:
Ningiza Horner Inc
[1]
Waikiwi
Shipping Co Limited v Thomas Barlow & Sons (Natal) Limited and
Another
1978 (1) SA
671
(A) at 678 G.
[2]
Brummer
v Gorfil Brothers Investments (Pty) Ltd
1999
(3) SA 389
(SCA) at 410 E – H.
[3]
See
section 3
of the
Law of Evidence Amendment Act 45 of 1988
.
[4]
Lornadawn
Investments (Pty) Ltd v Minister van Landbou
1977 (3) SA 618
(T)
at 623 E – G.
[5]
See
also
Coopers (South Africa) (Pty) Ltd v
Deutsche Gesellshaftfürschädlingsvekämpfung MBH
1976
(3) SA 352
(A) at 371 G.
[6]
Mutual
& Federal Insurance Co Limited v Da Costa
2008 (3) SA 439
(SCA) at [20].
[7]
Hersman v
Shapiro &Co
1926 TPD 367
at 379 – 380.
[8]
See
also
Venter v Bophuthatswana Transport
Holdings (Edms) Bpk
[1997] ZASCA 16
;
1997 (3) SA 374
(SCA) at 381 B – D.
[9]
Howard
& Decker Witkoppen Agencies and Fourways Estates (Pty) Ltd v De
Sousa
1971 (3) SA 937
(T) at 940 E/F –
G/H.
[10]
Thomas
v BD Sarens (Pty) Ltd
– 2012 JDR
1711 (GSJ) in [19].
[11]
Selero
(Pty) Ltd v Shauvier
1982 (2) SA 208
(T) at 216.
[12]
Uramin
(Incorporated in British Columbia) t/a Areva Resources Southern
Africa v Perie
2017 (1) SA 236
(GJ) in
[35].