Haarhof v Road Accident Fund (857/2008) [2009] ZAECPEHC 49 (17 September 2009)

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[2009] ZAECPEHC 49
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Haarhof v Road Accident Fund (857/2008) [2009] ZAECPEHC 49 (17 September 2009)

FORM A
FILING SHEET FOR EASTERN CAPE
HIGH COURT, PORT ELIZABETH JUDGMENT
ECJ:
PARTIES
:
ELIZE HAARHOFF
And
THE
ROAD ACCIDENT FUND
Registrar:
857/08
Magistrate:
High
Court:
EASTERN
CAPE HIGH COURT, PORT ELIZABETH
DATE
HEARD:
24/08/09
DATE
DELIVERED:
17/09/09
JUDGE(S):
JONES
J
LEGAL
REPRESENTATIVES –
Appearances:
for
the Appellant(s):
ADV:
J.J. Nepgen
for
the Respondent(s):
ADV:
Van der Linde SC
Instructing
attorneys:
for
the Appellant
(s):
LE
ROUX INCORPORATION
for
the Respondent
(s):
WILKE
WEISS VAN ROOYEN INCORPORATED
CASE
INFORMATION -
Nature
of proceedings
:
COSTS
Not
reportable
THE HIGH COURT OF SOUTH AFRICA
In the Eastern Cape High
Court Case No 857/2008
Port Elizabeth Delivered
In the matter between
ELIZE
HAARHOFF Appellant
and
THE ROAD ACCIDENT
FUND Respondent
Summary
Costs
– claim for compensation in terms of the Road Accident Fund Act 96
of 1998 – action instituted in the High Court – damages
falling
within the jurisdiction of the magistrates’ courts – whether the
circumstances nevertheless justify an award of costs
on the higher
scale.
JUDGMENT
JONES J:
[1] On 15 October 2005 a motor
vehicle driven by the plaintiff came into collision with a motor
vehicle driven by one Durandt.
The plaintiff sustained bodily
injuries. As a result she issued summons out of the Eastern Cape High
Court, Port Elizabeth for
compensation in the sum of R404 494-08,
allegedly payable by the defendant (the fund) in terms of the
provisions of the
Road Accident Fund Act, 56 of 1996
. The claim was
defended.
[2] The matter came on trial before
me on 24 August 2009. By then, the parties had settled most issues.
They are agreed that the
defendant pay R50 000-00 to the plaintiff in
respect of the capital portion of her claim, and that it furnish the
plaintiff with
an undertaking in terms of section 17(4)(a) of the Act
in respect of 40% of the costs of future medical, hospital and
similar expenses
arising out of the injuries she sustained in the
collision. They are further agreed that the defendant pay the
plaintiff’s taxed
party and party costs, including the qualifying
expenses, if any, of certain expert witnesses. The only issues for
determination
by me are
whether costs should be limited to
the costs recoverable in the magistrates’ courts, and
whether the plaintiff should be
entitled to the special costs of two pre-trial inspections
in
loco
attended by counsel.
The parties led no evidence. They
invited me to make my decision on the papers, and, as I understand
the way in which the matter
was conducted by counsel, on an
acceptance of certain submissions made from the Bar, unless these
were challenged from the Bar.
[3] The parties went to trial on the
merits and on the quantum of damages, and nothing of substance had
been agreed before trial
costs were incurred. The magistrates’
courts’ jurisdiction to award damages is limited to R100 000-00.
The defendant’s standpoint
is that the plaintiff should have
realised from the outset that her case fell within the jurisdiction
of the magistrates’ courts
and could properly have been determined
in a magistrate’s court. She should have elected to sue in that
forum. Her costs should
accordingly be confined to the costs which
she would have been entitled to recover if she had done so.
[4] The starting point in any dispute
about costs is the principle that the trial court has a wide
discretion to award costs in
a manner which is just and fair to both
parties. In determining what is just and fair to both parties the
courts will consider
the particular facts and circumstances of the
case in hand in the light of various principles, rules of practice,
and guide-lines
which have evolved over many years. Those which have
reference to the choice between high court costs and magistrates’
courts
costs are conveniently set out in Cilliers,
Law
of Costs
(Lexis Nexis
3
rd
ed) paragraphs 2.24 – 2.28 where the authorities are collected and
discussed. In an unreported judgment of this Court,
Vermaak
v
Road Accident Fund
(Eastern Cape Division, Port Elizabeth Case No 2509/03 dated 3 March
2006 and made available to me by counsel under the citation
[2006]
JOL 16934
(SE) paragraph 5) I summed up some of the relevant
considerations as follows:
The high court frequently
restricts
costs to the magistrates’ courts scale on the ground that the
plaintiff could and should have proceeded in the magistrate’s
court
where litigation is less expensive. In doing so, it applies the basic
principle of costs that the court has a discretion
which it must
exercise judicially upon a consideration of all the facts of each
case, and that the underlying consideration is
fairness to both
sides. The amount of the judgment or settlement is always a
significant factor in balancing fairness. The courts
discourage
litigants from choosing a more expensive forum where relief can be
obtained in a less expensive one. The defendant should
not have to
pay more in the way of costs because he has been brought to a more
expensive court unnecessarily. While the amount
of a judgment is
always important, it is, however, not the only consideration. Various
other circumstances – for example, the
complexity of the factual
issues, the difficulty of the legal issues, the seriousness of an
imputation against reputation, the
honesty of officials, the general
importance of the issue to the parties or the public – might induce
a court to award costs
on the high court scale although the amount
involved is small. But as a general rule the proper exercise of the
court’s discretion
on costs provides a powerful deterrent against
bringing proceedings in the high court which might more conveniently
be brought
in the magistrate's court, and this implies that the party
who could have chosen to proceed in the lower courts will have to
satisfy
the high court that there are good and sufficient reasons for
the exercise of a discretion to award high court costs in his or her
favour
.
1
[5
] Mr
Nepgen
argued for the plaintiff that there are good and sufficient reasons
in this case for the exercise of my discretion to award High
Court
costs in her favour. He submitted that there were problems and
difficulties for the plaintiff in the presentation of her
case, and
certain complexities in the factual and legal issues, which remove it
from the category of ordinary, run-of-the-mill,
motor-accident cases
which are disposed of daily in the lower courts. In my view there is
merit in these submissions. The problems
and complexities begin with
the nature of the injuries which she sustained. The description of
them in the pleadings gives some
hint of how they impact on the
conduct of the litigation. Paragraph 6 of the particulars of claim
describes them as a whiplash
injury of her neck; a closed traumatic
brain injury in the form of concussion; a soft tissue injury to the
right shoulder; a soft
tissue injury of her right knee; and post
concussional psychological disorder. The combination of a whiplash
neck injury, brain
damage, and post concessional psychological
disorder can, and often does, spell trouble.
[6] Whiplash
injuries are frequently nebulous. They can produce subjective
symptoms without evidence of physical degenerative changes
to the
neck. The experience of the courts is that sometimes the symptoms
resolve within a period of some 6 months or so. In other
cases they
persist for many years, and can become chronic and disabling. This is
particularly so where there is the added complication
of brain damage
and psychological disorder. There are cases where these
considerations in themselves have given rise to considerable

difficulty in the proof and quantification of general damages and
damages for loss of earnings.
2
When a prudent attorney has reason to believe that he may be faced
with problems of this nature, he may understandably be induced
to
advise his client to proceed in the High Court because he considers
that the experience and expertise of that Court and of counsel
who
conduct litigation in it is better equipped to deal with them. In
this case the plaintiff was obliged to rely on the evidence
of a
number of medical witnesses, some of them specialist experts, which
included a neurosurgeon, a neuropsychologist, an orthopaedic
surgeon,
a radiologist, and the medical doctor who treated her immediately
after the collision. As it happened, the amount of the
damages turned
out to be comparatively small, but the quantity and quality of the
evidence necessary to establish it was nevertheless
considerable.
[7] The gravity of
the brain injury in this case was
moderately
severe. This was objectively verified, for example, by the length of
the period of retrograde amnesia (at least several
hours) and
post-traumatic amnesia (30 hours or more), with a possible total
amnesic gap of about 3 days. The amnesia turns out
to be of
importance to the proof of her claim. The plaintiff has no memory
whatever of the motor collision. She had the disadvantage,
therefore,
of being unable to offer a version by the driver of her vehicle to
contradict the other driver’s version. She was,
furthermore,
obliged to take the opinion of an expert in the reconstruction of
motor collisions in order to counterbalance and
contradict the
opinion of the expert who had been consulted by the defendant. On the
merits, there were also questions of the proper
inferences, if any,
to be drawn from reports relating to the blood-alcohol and
breath-alcohol concentration levels of the driver
of the insured
vehicle, which may have had bearing on issues of reaction time,
avoiding action, and causation generally.
[8] It is proper
to conclude that the real possibility of significant complexities of
law and fact, and difficulties of proof,
were present in this matter
when the plaintiff issued summons. They persisted as the parties
proceeded to preparation for trial.
Were they sufficiently
significant to justify the plaintiff’s decision to select the High
Court as her forum when she issued
summons, and to persist with that
decision as the conduct of the case progressed? The answer depends on
the balance between them
and the amount of compensation. Amount is
always a significant consideration. The value of the cash component
of the award is increased
by the value of the undertaking in respect
of future expenses. The total quantum is appreciable, even though it
does not, in my
view, exceed the amount which the magistrates’
courts may order. It is not as if I am being asked to give High Court
costs although
the amount of the claim is trivial. The process by
which that amount was determined depended upon working through the
same complexities
of law and fact and the same difficulties of proof
which have been present throughout and which were sufficiently
significant to
induce the defendant to brief senior counsel on trial,
although the plaintiff was content with junior counsel. When I
consider
the various problems and complexities in relation to the
amount of the award, the latter does not seem to me to a be good
enough
reason to deprive the plaintiff of costs, the order of which,
both parties decided, should be incurred for the proper conduct of

their respective cases. The defendant considered it prudent to
employ senior counsel in this particular matter in circumstances
when
it knew that it would be paying its own counsel on the scale of High
Court fees. I do not believe that it is unfair in this
case if it
should also be ordered to pay the plaintiff’s costs on the same
scale. This is because this litigation warranted High
Court fees. I
should therefore exercise my discretion to award the plaintiff her
costs on the High Court tariff.
[9] There remains
the question of the costs of two pre-trial inspections
in
loco
.
Mr
Nepgen
explained
that two inspections were necessary because a last minute eye-witness
on the merits was found just before the hearing
who could not have
been consulted with at the scene when the previous inspection was
held. I have difficulty, however, in seeing
why the defendant should
have to pay for a second inspection because of this.
[10] There will be the following
order:
1 The defendant is
ordered to pay the amount of R50 000-00
to the plaintiff in respect of the capital component of her claim,
payable into the plaintiff’s attorneys’ trust account within
14
days of the date of this order, particulars of the account being:
Name Le Roux
Incorporated
Bank Nedbank
Branch Uitenhage
Branch
Code 126317
Account No 126
309 4678
Type of
Account
Trust
Cheque Account
2
The
defendant is ordered furnish the plaintiff with an undertaking in
terms of section 17(4)(a) of the Road Traffic Fund Act No
56 of 1996
in terms whereof the defendant will compensate the plaintiff in
respect of 40% of her costs of future accommodation
in a hospital or
nursing home, or the treatment of, or the rendering of service to, or
the supplying of goods to the plaintiff
resulting from the collision
which occurred on 15 October 2005.
3 The defendant is
ordered to pay the plaintiff’s party and party costs of suit on the
High Court tariff in a sum as
taxed
or agreed, including any costs incurred in obtaining payment of the
amount referred to in paragraph 1 hereof, which costs
shall include
(i) the costs of a
single inspection
in
loco
;
(ii)
the
reasonable taxed or agreed qualifying expenses, if any, of the
following expert witnesses instructed on behalf of the plaintiff:
Dr C Edelstein, orthopaedic
surgeon;
Dr
MJ
Marais, radiologist;
Dr R Keeley, neurosurgeon;
Vernon Sack, clinical
psychologist;
Prof D Raubenheimer, accident
reconstruction specialist.
4 In the event of
the capital amount of R50 000-00 not being paid in accordance with
paragraph 1 hereof, the defendant is ordered
to pay interest thereon
at the rate of 15.5%
per
annum
from due date, being 14 days of the date of this order, to date of
payment.
5 In the event of
the plaintiff’s taxed party and party costs not being paid within
14 days of the date of
allocatur
the defendant is ordered to pay interest thereon at the rate of 15.5%
per
annum
from due date, being 14 days of the date of
allocatur
,
to date of payment.
RJW JONES
Judge of the High Court
9 September 2009
1
Gelb
v
Hawkins
1960 (3) 687 (AD) Holmes AJA 694 A-E;
Norwich
Union Fire Insurance Society Ltd
v
Tutt
,
1960 (4) SA 851
(AD) 854;
Jones
v
Uniswa Co Ltd
1970 (2) SA 768
(E) 769D-770B;
Mofokeng
v
General Accident
Versekering Bpk
1990 (2)
SA 712
(W).
Hendricks
v
President Insurance Co
Ltd
1993 (3) SA 158
(C)
167D-F;
Koch
v
Realty Corporation of
South Africa
1918 TPD 356
;
Goldberg
v
Goldberg
1938 WLD 83
, 85-86;
Standard
Credit Corporation Ltd
v
Bester and others
1987 (1) SA 812
(W) 819D;
Swanepoel
v
Roelofz and others
1953 (2) SA 524
(W) 526C.
2
In other
cases, such as the
Vermaak
case
supra
,
the problems of whiplash type injuries have been held to be such
that High Court costs were not justifiable. It will depend
on the
facts of each case.