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[2018] ZAECPEHC 29
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N.A v Road Accident Fund (188/2017) [2018] ZAECPEHC 29 (28 June 2018)

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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, PORT ELIZABETH
CASE NO: 188 /2017
Date heard:14 June 2018
Date
delivered: 28 June 2018
In
the matter between
N
A                                                                                                                                                             Plaintiff
And
ROAD
ACCIDENT
FUND                                                                                                                      Defendant
JUDGMENT
GOOSEN,
J.
[1]
The
plaintiff was injured in a motor vehicle collision which occurred on
11 March 2015 at the intersection of Centenary Road and
Paris Avenue,
Lorraine, Port Elizabeth. At the time the plaintiff was the driver of
a motorcycle which the collided with a motor
vehicle, driven at the
time by a Mrs Jooste, the insured driver. The collision occurred at
approximately 19h00 hours on the evening
in qu estion.
[2]
The
plaintiff instituted action against the defendant in which she
claimed general damages, past hospital and medical expenses,
future
medical expenses and both past and future loss of income and earning
capacity. In prosecuting the claim from the outset
the plaintiff
employed the services of two counsel. The total claim was in an
amount in excess of R3.9 million.
[3]
The
defendant defended the action. The negligence of the insured driver
was, however, ultimately conceded. In an amended plea, the
defendant
pleaded that the plaintiff was contributorily negligent and that the
plaintiff’s claim ought therefore to be apportioned.
The
quantum of the plaintiff’s claim was denied and accordingly
that issue also remained alive between the parties.
[4]
Prior
to the commencement of the trial the parties reached agreement in
respect of the quantum of the plaintiff’s claims in
respect of
the different heads of damages. The agreement in respect of the
quantum of the plaintiff’s claim, which it was
agreed was the
sum of R2 658 041.90, as also the defendant’s undertaking in
terms of s 17 (4) (a) of the Road Accident Fund
Act, Act 56 of 1996
was subject to the determination of the defendant’s plea in
respect of an apportionment of the damages.
The parties could not
reach agreement as to whether the plaintiff was entitled to the costs
of two counsel. Accordingly, those
two issues, namely the
apportionment of the loss and the entitlement to the costs of two
counsel were the only issues to be determined
at trial.
[5]
In
the light of the fact that the
onus
rested upon the defendant to establish that the plaintiff’s
negligence had contributed to the collision, the defendant commenced

adducing evidence. Mrs Jooste, the insured driver, testified. She
stated that on the evening of 11 March 2015 she was returning
home
from the gym that she had attended. She explained that the
intersection between Centenary Road and Paris Avenue consists of
a
T-junction, which is controlled by a stop sign located in Paris
Avenue. She said that she drove her motor vehicle in Paris Road
in
the direction of Centenary Road. When she got to the intersection she
stopped her vehicle.  She looked to her left and
right, saw no
vehicles approaching and thereafter proceeded to drive into Centenary
Road executing a right turn in the process.
As her vehicle crossed
the centre line of Centenary Road she heard a very loud bang on the
right rear of the vehicle. She immediately
stopped the vehicle, got
out and saw a motorcycle lying on the road surface near the
intersection and the plaintiff lying in the
roadway a short distance
away. She said she approached the plaintiff was lying on the ground
and that she, the plaintiff, was shouting
at her. There were other
onlookers who assisted.
[6]
Mrs
Jooste explained that the impact between the two vehicles occurred in
the lane of travel of vehicles in Centenary Road approaching
from a
direction to the right of Paris Road. She explained that her vehicle
had not yet crossed the white line in the middle of
Centenary Road
when the collision occurred. The damage to her vehicle was in the
vicinity of the rear wheel and the rear passenger
door on the
driver’s side.
[7]
In
cross-examination she conceded that since the intersection is
regulated by a stop sign in Paris Avenue, vehicular traffic in

Centenary Road has right of way. She also conceded that the distance
that her vehicle travelled from Paris Avenue to where the
point of
impact was in Centenary Road was a very short distance. She explained
that it was dusk, that the weather conditions were
good and that the
streetlights in the area were on. She confirmed that she looked both
to her left and right and that she did not
see the motorcycle driven
by the plaintiff. She conceded, therefore, that she could make no
comment as to the speed at which the
motorcycle was travelling. Nor
could she comment upon or dispute that the headlights of the
motorcycle were on. She could not explain
why she did not see the
vehicle approaching in Centenary Road.
[8]
After
the evidence of Mrs Jooste was presented the defendant closed its
case. The plaintiff thereafter brought an application for
absolution
from the instance in relation to the defendant’s plea in
respect of contributory negligence on the part of the
plaintiff.
After hearing argument in respect of the request for absolution, I
granted the order absolving the plaintiff. The plaintiff
thereafter
closed her case and counsel on behalf of the parties addressed
argument in relation to the plaintiff’s entitlement
to an order
for costs, including the costs of two counsel. In the light of the
order for absolution,  I granted an order,
the terms of which
were framed in a draft order prepared by the plaintiff’s
counsel, in the following terms:
1.
The
Defendant shall pay to the Plaintiff the sum of R2 658 041.90 (TWO
MILLION SIXH HUNDRED AND FIFTY EIGHT THOUSAND AND FORTY ONE
RAND AND
NINETY CENTS), as and for damages.
2.
Payment
of the capital shall be made within 14 days of the date of this
Order, failing which, interest on the outstanding capital
sum shall
accrue at the prevailing legal rate per annum to date of final
payment.
3.
The
defendant shall furnish the plaintiff with an undertaking in terms of
section 17
(4) (a) of the
Road Accident Fund Act, No 56 of 1996
, to
pay to the plaintiff the costs of future accommodation in a hospital
or nursing home, or the treatment of, or the rendering
of a service
to, or the supplying of goods to the plaintiff as a result of
injuries sustained by her in the collision which occurred
on 11 March
2015 in the district of Port Elizabeth and the
sequelae
thereof.
[9]
I
reserved judgment in relation to the costs. Before turning to that
question it is necessary briefly to outline the reasons for
granting
absolution from the instance in relation to the defendant’s
plea of contributory negligence on the part of the plaintiff.
[10]
In
the defendant’s amended plea, dated 7 June 2018, it is alleged
that the plaintiff’s contributory negligence consisted
of the
failure to keep a proper lookout; the failure to apply the brakes of
the motorcycle timeously or at all; the failure to
exercise proper
care and control over the motorcycle; the failure to avoid a
collision when, by the proper exercise of reasonable
skill, care and
caution she could and should have done so, and that the plaintiff
failed to drive at a reasonable speed under the
circumstances.
[11]
The
outline of the evidence of the insured driver set out above
constitutes the only evidence upon which the defendant sought to
rely
in order to establish one or more of the grounds of negligence
attributed to the plaintiff. That the insured driver drove
her
vehicle negligently and that such negligence caused or contributed to
the collision is not to be doubted. Indeed it was conceded
by the
defendant. Mrs Jooste’s evidence was that she did not see the
plaintiff’s motorcycle at all. Her evidence, accordingly,
it
cannot found a basis for finding that the plaintiff drove her
motorcycle at a speed which was excessive in the circumstances,
or
that the plaintiff did not keep a proper lookout, or failed to apply
the brakes of a motorcycle timeously or at all. Indeed,
the evidence
of the insured driver provides no basis upon which any inference of
negligent conduct on the part of the plaintiff
could reasonably be
drawn.
[12]
The
position of the insured driver’s vehicle when the impact
occurred; the point of impact on the road surface, namely in
the lane
of travel of the motorcycle; and the damage to the insured driver’s
vehicle all indicate that the insured driver
drove the vehicle into
the path of travel of the plaintiff at a point when it was plainly
inopportune to do so. Since there was
no evidence upon which a
reasonable court might find that the plaintiff was negligent in the
driving of the motorcycle, and that
such negligence contributed to
the collision, the plaintiff was absolved from the instance.
[13]
I
turn now to consideration of the argument in relation to the
plaintiff’s entitlement to the costs of two counsel.
[14]
A
party’s entitlement to an order for costs which includes the
employment of two counsel, is generally determined on the basis
of
deciding whether the employment of two counsel was “a wise and
reasonable” precaution to take in the circumstances
of the
matter (see
Van
Wyk v Rondalia
1967 (1) SA 373
(T);
Hendry
v A A Mutual Insurance Association Ltd
1979 (2) SA 105
(C)). The factors to be taken into account in
determining whether it was indeed a reasonable and prudent precaution
have been discussed
in many judgments. Those factors include the
importance of the issues to be determined; the complexity of legal or
factual issues
to be decided; the quantum of the claim and the volume
of evidence to be considered (cf.
Koekemoer
v Parity Insurance Co Ltd and another
1964 (4) SA 138
(T);
Basil
Red (Pty) Ltd v Beta Hotels
(Pty)
Ltd
[2000] 1 All SA 1
(C);
Barlow
Motors Investments Ltd v Smart
1993 (1) SA 347
(W)).
[15]
I
have already indicated that the plaintiff’s claim consisted of
a claim for general damages; a claim for past and future
medical
expenses and a claim for past and future loss of earnings and earning
capacity. The injuries sustained by the plaintiff
were very serious
injuries involving fractures of her right radius and ulna; an injury
to her pelvis; fractures of both the medial
malleolus and lateral
malleolus of her right ankle. The treatment for these injuries
involved external and internal fixation is
of the fractures to the
right radius and ulna; an external skeletal fixation applied to her
pelvis and a plaster of paris applied
to her right leg. She
subsequently had to have the external skeletal fixation removed
surgically.
[16]
The
plaintiff presently presents with significant scarring on the
anterior aspect of the right forearm, the centre posterior of
the
right forearm, her lower abdomen and she experiences severe pain in
the pelvic area and will continue to experience such pain
on a
permanent basis.
[17]
It
was argued on behalf of the plaintiff that the nature of the injuries
were serious and that the plaintiff accordingly was vested
with a
substantial claim for general damages, the proof of which would
require that substantial body of medical legal evidence
to be
presented at trial. The reports of the several medico-legal experts
qualified by the plaintiff, which were ultimately accepted
as being
the basis upon which the quantum of her loss was conceded, establish
that the plaintiff suffers from significant functional
restrictions
resulting in the likelihood that she would have to cease working.
These injuries and the
sequelae
accordingly foundered a substantial claim for loss of earnings or
earning capacity.
[18
It
was pointed out that this, from the outset, presented as a
challenging and complex claim which faced significant difficulty of

proof. The reason for this, accepted as part of the expert reports
filed in the form of the industrial psychologists, was because,
at
the time of the collision, the plaintiff was self-employed as a
tattoo-artist and had been so self-employed since 2013. Proof
of her
pre-morbid earnings to found a claim for projected earnings and
therefore her loss of earning capacity, was bedeviled by
the fact
that she operated a cash business, without any bank account and
without any tax returns to substantiate the earnings.
The plaintiff
furthermore had significant work experience in a wide variety of
employment positions. She was accordingly possessed
of a wide set of
skills which would be indicative of a residual earning capacity.
[19]
A
further complicating factor, borne out by the expert reports were
filed by a clinical psychologist and the industrial psychologist,
is
the fact that the plaintiff had a pre-morbid
psychiatric/psychological history. This complicated the determination
of appropriate
contingencies to be applied in calculating a future
loss of earnings.
[20]
All
of these factors feature as agreed factors relevant to the
determination of the plaintiff’s loss of earning capacity,
and
they are set out in some detail in a Joint Minute filed in respect of
agreements concluded between the parties’ Industrial

Psychologists prior to the trial.
[21]
It
was argued that on this basis, now accepted by the defendant, the
prosecution of the plaintiff’s claim against the defendant
was
one involving significant complexity, both in respect of the evidence
to be adduced and in the proof of the plaintiff’s
claim. In the
light of the fact that the plaintiff, who is no longer able to earn
an income because of the
sequelae
of the injuries sustained in the motor vehicle collision, the award
of damages in respect of her earning capacity was undoubtedly
a
matter of considerable importance to her.
[22]
It
was argued that having regard to all of these considerations, the
employment of two counsel from the outset of the matter was
a wise
and prudent precaution to take and on this basis, upon application of
the principles which apply in respect of such costs
orders, the
plaintiff ought to be awarded the costs of two counsel.
[23]
On
behalf of the defendant it was argued that the matter was not unduly
complex and that it did not warrant the appointment of two
counsel.
As I understood the argument, this was on the basis that the clinical
psychologist, Mr Ian Meyer’s report in regard
to her pre-morbid
condition, was that it did not impact upon the claim for future loss
of earnings. This is of course only one
aspect of the matter. It was
pointed out in reply by the plaintiff’s counsel that it would
not be appropriate to consider
the merits. in isolation from the
quantum issues since they remained at issue throughout. Furthermore,
the complexity in respect
of the proof of a loss of earning capacity
and the quantification thereof did not hinge upon the plaintiff’s
pre-existing
psychiatric condition. This was but one factor which
required consideration. As I understood defendant’s argument it
was
not suggested that the plaintiff’s inability to furnish
proof of her premorbid income did not present as a significant
difficulty
in the proof of the plaintiff’s claim. Nor was it
suggested that the potential residual earning capacity of the
plaintiff,
given her wide range of skills, did not present as an
issue of complexity.
[24]
The
fact that a case is ultimately settled upon a certain basis does not,
of course, mean that the plaintiff could have anticipated
that such
settlement would be reached. A plaintiff seeking to prosecute a
difficult-to-prove claim or a complex claim, must make
an election as
to how to proceed at the outset of the case. In this instance the
plaintiff elected to employ the services of two
counsel on the basis
that the prosecution of the claim, which was important to her, would
require the services of two counsel.
In my view, it cannot be said
that the plaintiff was unreasonable in making such election. On the
contrary, having regard to all
of the circumstances of the matter
and, in particular, that the issues remained in dispute until shortly
before trial, such election
was a wise and prudent precaution to take
in the circumstances. It follows therefore that the plaintiff is
entitled to the costs
of two counsel.
[25]
I
therefore make the following order:
The Defendant shall pay the
Plaintiff’s party and party costs of suit on the High Court
scale, as taxed or agreed, such costs
to include the costs of two
counsel and qualifying fees, if any, of any experts in respect of
whom Plaintiff has given notice in
terms of the provisions of
Rule 36
(9) (a) and (b).
G.
G. GOOSEN
JUDGE
OF THE HIGH COURT
Appearances:
For the Plaintiff
Adv. J.J.
Nepgen with Adv. K. D.  Williams
Instructed
by Pierre Kitching Attorneys
For the
Defendant
Adv. B.
Naran
Instructed
by Smith Tabata Inc.