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[2019] ZAECPEHC 26
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Ntsali v Road Accident Fund (47/2017) [2019] ZAECPEHC 26 (7 May 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
CASE
NO. 47/2017
Date
heard: 25 March 2019
Date
delivered: 7 May 2019
In
the matter between:
PHUMLA
PAMELA NTSALI
Plaintiff
and
THE
ROAD ACCIDENT FUND
Defendant
JUDGMENT
RUGUNANAN
AJ
,
[1]
This matter came before me on 25 March 2019. It involves an action by
the plaintiff for damages for personal injury arising from a motor
vehicle collision. When the matter was called I was informed
by the
parties that agreement had been reached on the
quantum
of the
plaintiff’s damages except for the issue of the costs of two
counsel. At the hearing of the matter a draft order setting
out the
terms of the agreed settlement on
quantum
was handed up. I
made an order in respect thereof in the following terms:
“
1.
Defendant is liable for 60% of plaintiff’s damages.
2.
Defendant is to pay plaintiff the sum of R1 470 896.73 in
settlement
of plaintiff’s claim for past and future loss of
earnings and/or earning capacity.
3.
Payment of the aforesaid amount in paragraph 2 above, shall be made
within fourteen
days from the date of this order directly to
plaintiff’s attorney of record, P PBK Attorneys Inc., trust
account.
4.
Failing payment of the aforesaid amount in paragraph 2 above
defendant is to
pay interest on the aforesaid amount in paragraph 2
above from a date 14 days from date of this order to date of final
payment
at the rate of 10.25% per annum.
5.
Defendant is to pay plaintiff’s costs of suit on the party and
party scale,
up to and including 25 March 2019 as taxed or agreed,
such costs to include:
5.1
The costs of the reports and supplementary reports, if any, of:
5.1.1 Dr B
McKenzie;
5.1.2 Ms A
van Zyl;
5.1.3 Mr I
Meyer;
5.1.4 Dr P
Whitehead;
5.1.5 Dr
TY Moodley;
5.1.6 Dr F
Rank;
5.1.7 Dr H
Vawda;
5.1.8 Dr
PA Olivier;
5.1.9 Dr H
Prinsloo;
5.1.10 Dr CG
Apostolis;
5.1.11 Mr D Williams;
5.1.12 Dr S
Williams-Jones;
5.1.13 Algorithm
Consultants and Actuaries.
5.2
The reasonable qualifying fees and expenses, if any, of:
5.2.1 Dr B
McKenzie;
5.2.2 Ms A
van Zyl;
5.2.3 Mr I
Meyer;
5.2.4 Dr P
Whitehead;
5.2.5 Dr
TY Moodley;
5.2.6 Dr F
Rank;
5.2.7 Dr H
Vawda;
5.2.8 Dr
PA Olivier;
5.2.9 Dr H
Prinsloo;
5.2.10 Dr CG
Apostolis;
5.2.11 Mr D Williams;
5.2.12 Dr S
Williams-Jones;
5.2.13 Algorithm
Consultants and Actuaries.
5.3
The reasonable costs of consultations of plaintiff’s counsel
and plaintiff’s
attorney with plaintiff’s experts and lay
witnesses in the preparation for the trial.
5.4
The costs involved in attending a pre-trial inspection in loco with
counsel.
5.5
The costs of the photographs.
6.
Defendant is to pay interest on plaintiff’s said text or agreed
costs at
the rate of 10.25% per annum from a date fourteen days after
allocatur or agreement to date of payment.
7.
The determination as to whether or not plaintiff is entitled to the
costs of
two counsel, where so employed, is reserved.”
[2]
The costs
of two or more counsel will be allowed only if a court specifically
orders this to be the case failing which the costs
of only one
advocate is awarded. Our courts have in several decisions considered
the factors which are relevant in deciding whether
it was a wise and
reasonable precaution for a litigant to have engaged two counsel in a
particular matter. These factors include,
the importance of the
matter or issue, whether the case involves complex legal or factual
issues, the
quantum
of the claim and the volume of evidence to be dealt with.
[1]
[3]
The plaintiff’s cause of action arose on 26 May 2013 from the
driving
of a motor vehicle that collided with her at about 21h30 in
Uitenhage Road, Despatch. The plaintiff was a pedestrian at the time.
Counsel was briefed during December 2016 to draft particulars of
claim and the plaintiff’s action was instituted on 11 January
2017.
[4]
In the particulars of claim the plaintiff alleged that the collision
was
occasioned solely due to the negligence of the driver of the
insured vehicle with registration FVV 535 EC. It is alleged
inter
alia
that (i) he failed to keep a proper lookout; (ii) he failed
to apply his brakes timeously or at all; (iii) he drove at an
excessive
speed; and (iv) he failed to exercise proper control over
the insured vehicle.
[5]
Further, the plaintiff alleged that as a result of the collision she
sustained
injuries in the nature of (i) a pelvic fracture; (ii) a
comminuted fracture of the right humerus; (iii) a fracture of the
right
lateral malleolus; (iv) a mild concussive TBI (traumatic brain
injury); (v) multiple lacerations; and (vi) a bruised right eye.
As
regards the
quantum
aspect of her claim the plaintiff annexed
to the particulars of claim, medico-legal reports by Dr B L
Mackenzie, an orthopaedic
surgeon dated 3 October 2014; Ms A van Zyl,
an occupational therapist dated 8 December 2015 and 19 October 2016;
Mr Ian Meyer,
a clinical psychologist dated 29 January 2016; and Dr P
Whitehead, an industrial psychologist dated 9 December 2016. It is
noted
that these reports were attached to the original particulars of
claim to which the defendant initially pleaded prior to delivery
of
its amended plea.
[6]
During the course of the action, the plaintiff filed an additional 11
medico-legal reports, which brought the total number of expert
reports filed by her to 15. Supplementary reports totalling 7 in
number were also filed. The defendant filed 2 expert reports, one by
industrial psychologist Dr P Crous and another by occupational
therapist Ms Ghida Bernard.
[7]
In a plea initially filed on 20 February 2017, on pain of a notice of
bar, the defendant pleaded that it had “no knowledge” of
the plaintiff’s allegations particularly as to the insured
driver’s negligence. On this issue the defendant
straightforwardly pleaded that the plaintiff is put to the proof
thereof.
Mr Paterson, who appeared for the defendant drew attention
to the fact that on 6 May 2017 the defendant made an initial tender
in terms of which it conceded liability on the merits on the basis of
a 70% apportionment in favour of the plaintiff. Evidently,
this was
done without amending the plea with an allegation that the plaintiff
was contributorily negligent in causing the collision.
Contending
that the plaintiff’s legal representatives could have applied
themselves to the merits, and indeed the issue relating
to the
plaintiff’s contributory negligence before summons was issued,
Mr Paterson went on to argue that the ultimate
settlement based
on an apportionment of 60% in favour of the plaintiff was
self-induced. He contended further that the merits should
have been
settled in November 2017 because the defendant’s plea was at
that stage, a plea of “no knowledge”.
[8]
I am unable to agree with the submissions by Mr Paterson. Mr
Williams,
who appeared together with Mr Frost for the plaintiff,
stated that the defendant withdrew its initial tender. The withdrawal
of
the tender was indicative that the merits of the matter were
disputed. To suggest that the matter ought to have settled on a
proposed
apportionment of 70% because the plea was one of no
knowledge is simplistic. Mr Williams pointed out that the withdrawal
signified
that the merits were being contested either because the
plaintiff bore the
onus
to prove the insured driver’s
alleged negligence as pleaded, or that there was a likelihood of the
plaintiff’s claim
being dismissed since she had no recollection
of the actual collision (a condition Mr Meyer described in his report
as “
retrograde amnesia”
) possibly due to a
compromised judgment induced by alcohol consumption on the night of
the collision. It was in these circumstances
that second counsel was
briefed in November 2017. By then the matter had already been
enrolled for trial on 6 February 2018.
[9]
On 23 January 2018, the defendant filed an amended plea. The amended
plea
alleged that the plaintiff was contributorily negligent in
causing the collision. This meant that the merits were still in
issue.
Furthermore, all the plaintiff’s injuries were admitted
except for the mild concussive TBI.
Quantum
however was still
in issue notwithstanding the defendant admitting that the plaintiff
suffered general damages and will incur future
medical expenses. Mr
Williams, submitted that the extent of pre-trial preparation involved
in the matter was not insignificant.
On the merits, it was common
cause that at the time of the collision the plaintiff was under the
influence of alcohol having spent
some time socialising at a tavern
and that her recollection of the collision was questionable
[10]
Preparation on the merits necessitated an inspection
in loco
and consultation with the plaintiff and her witness at the inspection
scene. Such preparation also entailed anticipating an apportionment
in the event the plaintiff was found to have been contributorily
negligent. According to Mr Williams, every notional percentage
apportioned against the plaintiff on the merits would proportionately
diminish the
quantum
of her overall claim (see below).
[11]
On the
quantum
aspect, the plaintiff’s claim for all
heads of damages (i.e. general damages, future medical expenses and
loss of earnings)
amounted to a total of R3 806 000.00. Of
this amount, more than R3 000 000.00 accounted for the
claim for past
and future loss of earnings. The
quantum
aspect
necessitated considerable preparation given the number of expert
reports filed on behalf of the plaintiff. Each expert had
to be
consulted with and prepared for trial to testify on the nature and
extent of the plaintiff’s injuries, the
sequelae
and
complications thereto, and the calculation of damages. Although the
defendant usually tenders a certificate of undertaking
for future
medical expenses, it was nonetheless incumbent to ensure that the
quantum
of this claim was properly computed in the event of
the matter proceeding to trial on 6 February 2018. The pleadings
indicate this
was achieved with expert input. In addition, Mr
Williams submitted that the merits were of crucial importance to the
plaintiff;
theoretically every 10% apportioned against her would
approximate to a R300 000.00 reduction on the
quantum
of
her claim.
[12]
On 26 January 2018, and by order of court, the parties reached a
settlement.
The defendant conceded liability on the merits with an
apportionment of 60% in favour of the plaintiff; the defendant
settled the
claim for general damages in the amount of R300 000
(post-apportionment) and agreed to provide the plaintiff with an
undertaking
for future medical expenses limited to 60%; and further
agreed that the remaining claim for past and future loss of earnings
be
postponed and that the issue relating to the costs of two counsel
be reserved for later determination.
[13]
On the remaining claim for loss of earnings (past and future), the
matter
was set down for trial on 22 March 2019 and rolled over to 25
March 2019. On that day the defendant made an offer of R1 389 110.40
(i.e. R2 315 184 before apportionment). The offer was
rejected whereafter on the same day an increased offer of
R1 470 896.73
(i.e. R2 451 494 before
apportionment) was forthcoming. This offer was accepted in terms of
the order mentioned in paragraph
1 of this judgment.
[14]
In relation
to the claim for loss of earnings, Mr Paterson argued that there was
a duplication of expert reports because the plaintiff
had voluntarily
resigned from her employment. For this reason he contended that the
volume of expert reports played no significant
role in justifying the
employment of two counsel. I am not persuaded by this argument. There
are two reasons for this. Firstly,
it is generally accepted that the
computation and proof of a claim for loss of earnings does involve
complex issues of fact and
law, and where the claim is considerable,
as in this case, then it is usually a reasonable and prudent
precaution for a plaintiff
to engage the services of two counsel.
[2]
Secondly, as will be seen from the plaintiff’s personal
circumstances set out below, her resignation from employment was
not
anything foreseeable and came about as a direct result of the
complications that arose from the injuries she sustained in the
collision.
[15]
The plaintiff was aged 26 at the time of the collision and in her
second
year of a learnership program for acquiring a qualification as
a pharmacist assistant. Despite her injuries and having to endure
difficulties brought about by her altered post-traumatic
circumstances, the plaintiff completed her learnership in October
2014
and was offered a position as a post-basic pharmacy assistant at
Livingstone Hospital.
[16]
At some point she was informed that the hospital could no longer
retain
her in that position and she applied for and obtained
employment at the Tshangana Street Clinic in New Brighton. The
plaintiff
was the only employee in the pharmacy at the clinic and the
physical demands of the job were challenging. The report by
occupational
therapist Ms van Zyl details that the plaintiff was in
charge of the storeroom as well as the dispensary. She was obliged to
be
on her feet for extended periods during her shift, to lift and
carry boxes, to pack medicines, and to dispense medication. Her
grievances raised with her employer went unanswered. Due to her
post-traumatic compromised physical efficiency, she resigned from
the
clinic in November 2017. The plaintiff is also a single mother of two
young children. During weekends she supplemented her
income doing
work as a locum pharmacy assistant at various “Clicks”
retail outlets.
[17]
Referring to the joint report prepared by Dr Whitehead and Dr Crous,
Mr Paterson contended that the parties’ experts only disagreed
on whether the plaintiff’s pre-morbid career path would
lead to
her working in either the public sector or the private sector and
hence the plaintiff’s claim for loss of (future)
earnings was
not anything complex. Mr Williams pointed out that the scenarios
postulated by the experts amounted to R2 835 634
per
Dr Whitehead and R1 794 734
per
Dr Crous and that
the difference of opinion translated to a substantial R1 040 900
in actuarial terms. On this basis he submitted
that the plaintiff’s
claim for loss of earnings was not insubstantial and was sufficiently
complex to justify the employment
of two counsel.
[18]
To conclude, all indications are that the matter was of considerable
importance to the plaintiff. The dispute on the merits, the
preparation undertaken regard being had to the accumulated volume of
expert reports and the
quantum
involved, were not by any means
simple. It seems to me applying my discretion that it would be wrong
to hold that the employment
of two counsel was not in all the
circumstances of this matter a wise and reasonable precaution.
[19]
In the result I make the following order:
[19.1]
The costs to be paid by the defendant in terms of paragraph 5 of the
order issued on 25 March 2019 shall include the
costs of two counsel.
_________________________
S
RUGUNANAN
ACTING
JUDGE OF THE HIGH COURT
Appearances:
For
Plaintiff:
Adv A. Frost and Adv. K D Williams, instructed
by PBK Attorneys, Port
Elizabeth.
For
Defendant: Adv. N
Paterson, instructed by Friedman Scheckter Attorneys, Port Elizabeth.
[1]
Koekemoer v Parity Insurance Co Ltd and Another
1964 (4) SA 138
(T)
at 144H-145A; Basil Reed (Pty) Ltd v Beta Hotels (:Pty) Ltd
[2000] 1
All SA 1
(C) at paragraph [34];
cf.
Internatio (Pty) Ltd v Lovemore Brothers Transport CC
2000 (2) SA
408
(SE) at page 414E;
cf.
Barlow Motors Investments Ltd v Smart
1993 (1) SA 347
(W) at page
352F-H; IIR South Africa BV (Incorporated in the Netherlands) t/a
Institute for International Research v Tarita
[2003] 3 All SA 188
(W) at page 203
c
.
See also various unreported decisions: Nomhle Gwayi v Road Accident
Fund (740/2011) [2014] ZAECMHC; Smit v RAF (448/20130 [2014]
ECHCPE;
Nathan De Hart v RAF (Case No 654/20134) ECHCPE 25 March 2014;
Marshall Gavin Dolf v RAF (3038/2014) [2014] ZAECPEHC;
Lloyd Mhlanga
obo Karen Rauramai Mhlanga v RAF (Case No 2682/2015) ECDGHT; Fezile
Memani obo Aviwe Memani v RAF (Case No 3489/2013)
ECLDPE; Quinton
Bekker v RAF (Case No 1864/2015) ECLDPE; Van Niekerk v RAF
(2521/2015) [2017] ZAECPEHC; Christian Lodewicus Moolman
v RAF (Case
No 2819/2015) ECLDPE; Gitesh Gajjar N.O. v RAF (1076/2016) ECLDPE;
Ronald Roland Johannes Hendricks v RAF (Case No.
1380/2017) ECLDPE;
Ufukazi Cleopatra Douse v RAF (Case No 228/2017) ECD; Natasha Adams
v RAF (Case No 188/2017) ECDPE; Charl
Philander obo Jose
Charl-Junior Hardy v RAF (Case No 1591/2015) ECLDPE
[2]
Gerrit Smit v Road Accident Fund (448/2013) [2014] ZAECPEHC 11 (6
March 2014) at paragraph [16]