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2024
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[2024] ZAECQBHC 18
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Minnies v Road Accident Fund (2675/2022) [2024] ZAECQBHC 18 (27 February 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE DIVISION,
GQEBERHA
REPORTABLE
Case
No.: 2675/2022
In the matter between:
CHARLENE
MAGDALENE
MINNIES
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
EKSTEEN J:
[1]
The plaintiff, Ms Charlene Minnies,
currently 46 years old, was badly hurt in a motor vehicle accident on
the N1 Freeway in Cape
Town on 23 September 2019. She
subsequently issued summons in the Western Cape Division of the High
Court against the defendant
for the recovery of damages that she
suffered as a result of the injuries that she had sustained in the
collision. The matter
was subsequently transferred, by an order
of court, to this court.
[2]
The
defendant has admitted its liability to compensate Ms Minnies for
such damages as she may be able to prove that she suffered
as a
result of the accident. Accordingly, in August 2023, an order
was made, by agreement, that the defendant furnish the
plaintiff with
an undertaking in terms of s 17(4)(a) of the Road Accident Fund
Act
[1]
, for 100% of the costs of
future accommodation that she may require in a hospital or nursing
home, for treatment of, or the rendering
of a service to her.
Subsequently, in a pre-trial meeting shortly before the trial, her
claim for general damages was settled
in the amount of R800 000,00.
[3]
What remained in dispute for determination
in the trial was Ms Minnies’ claim for past hospital and
medical expenses and for
loss of earning capacity.
Background
[4]
There was no dispute at the trial in
respect of the plaintiff’s injuries or the immediate
sequelae
of the accident. Ms Minnie’s
was taken from the scene of the collision by ambulance to the Melomed
Hospital, in Belville,
where she was admitted in the casualty
department and a clinical examination and radiological studies were
performed. She
had injuries to her ankle and right knee and
experienced pain in her back and neck, for which she was treated
conservatively and
discharged the following day.
Notwithstanding her discharge she had persistent symptoms in her
right knee and, upon her return
home, she was seen by a general
practitioner in Kariega on 30 September 2019, who referred her to an
orthopedic surgeon.
Her knee was initially treated
conservatively with a brace and physiotherapy, and she was given
nonsteroidal anti-inflammatory
medication.
[5]
However, her symptoms persisted and she
struggled with pain and mobility. Thus, on 28 November 2019,
she underwent an arthroscopy
of the right knee at the Cuyler Hospital
in Kariega, and the findings of the arthroscopy led to a simultaneous
medial meniscectomy.
As a result of these procedures the final
diagnosis of her injuries arising from the accident was that she had
sustained a contusion
of the right ankle, a grade 2 tear of the right
knee’s medial collateral ligament with an avulsion fragment
from the medial
femoral condyle (part of the ligament injury) and a
tear in the medial meniscus of the right knee. She also
sustained undefined
neck and back injuries.
[6]
Despite the aforementioned treatment, her
knee continued to deteriorate and she received intermittent treatment
from Dr Burger,
an orthopedic surgeon in Kariega. On 4
May 2021 she was again admitted to the Cuyler Hospital
for infection
to the right knee and a possible avascular nicrosis and, on 24 August
2021, she was examined at the Livingstone Hospital
where x-rays were
taken, which confirmed that her right knee remained unstable.
An MRI scan was performed on 2 September
2021 which indicated a torn
posterior cruciate ligament, a strained anterior cruciate ligament,
and a longitudinal tear in the
meniscus. Thus, on 24 January
2022, she underwent a posterior cruciate ligament reconstruction of
the right knee and a medial
meniscectomy.
[7]
These extended sequalae of the accident
also had a psychological impact and Ms Minnies has been diagnosed
with a chronic post-traumatic
stress disorder, a generalized anxiety
disorder, major depressive disorder and somatic symptom disorder.
Mr Eaton, a clinical
psychologist, concluded that her diagnosis in
respect of these conditions was guarded. He explained that Ms Minnies
had not yet
accessed any professional counselling or medication in
respect of these conditions as a result of her limited medical
resources
and the need to utilize those in respect of her daughter,
who had also been injured in the accident. He emphasised that
Ms
Minnies’ prognosis was not good, because of the chronicity
of her difficulty and the perpetuating effects of her pain and
mobility limitations, but he did recommend that psychological therapy
was strongly indicated. He was hopeful that it would
produce
some improvements, but opined that it was difficult to predict.
Hence his prognosis of her condition being “guarded”.
Claim for loss of
earning capacity.
[8]
Ms Minnies claimed R7 862 742,00 for loss
of earning capacity. At the time of the collision, she was
employed by Kromberg
Schubert Eastern Cape (Pty) Ltd as a taper
operator, earning approximately R161 961,00 per annum inclusive of
employer medical
aid and provident fund contributions. The work
that she performed was manual, on a production line, but she said
that she
had realised earlier that she had a passion for helping
other people and uplifting her community. Hence, she had
commenced
studying towards a bachelor’s degree in social work
at the University of South Africa on a part time basis long before
the
collision had occurred. But for the collision, she would,
in all probability, have graduated by the end of 2019. She
would have registered as a social worker in 2020, however, due to the
outbreak of Covid 19, it was accepted that she would not
have secured
employment during that year. It was anticipated that she would
have taken up employment in January 2021 as a
government employee
social worker. She had been in good health at the time of the
collision and there was no reason to anticipate
that she would not
have remained in her employ as a social worker until her usual
retirement age of 65.
[9]
However, as a result of the accident and
the injuries that she sustained, she discontinued her studies and has
not graduated nor
qualified as a social worker. She was absent
from her employment with Kromberg Schubert, on ill-health leave, from
23
September 2019 until May 2020. She then returned to
her employment, albeit with considerable discomfort, until November
2020.
She was again off on ill-health leave from 11 November
2020 to 29 January 2021. Ultimately, she was retrenched from
her employment
in June 2021. Her retrenchment was not directly
as a consequence of her injuries and was linked to a restructuring in
the
company and the closure of a number of production lines,
including the production line on which she was employed.
Nevertheless,
her extended absence on ill-health leave and her very
diminished physical capacity may have contributed to her
retrenchment.
[10]
The undisputed medical opinion is that Ms
Minnies has reached her maximum recovery from her injuries and Dr de
Bruin, an orthopedic
surgeon, has opined that she will probably
require a knee replacement in approximately 15-20 years from now.
In a joint minute
prepared by occupational therapists engaged by Ms
Minnes and the RAF, respectively, they were in agreement that, from a
purely
physical perspective, Ms Minnies would be best suited to work
of a sedimentary to a light nature (it not exceeding 33% of her
shift).
They considered, from a physical perspective, that all
future positions secured by Ms Minnies should allow for the following
accommodations:
‘
8.4.1
Changing her posture between sitting, standing and walking every 45
minutes.
8.4.2
Not walking on or over uneven ground.
8.4.3
Not working in confined spaces, requiring awkward positioning such as
kneeling or squatting.
8.4.4 Not
walking on or over slippery floors.
8.4.5
The use of ergonomic adjustments in the workplace.’
[11]
Even with these accommodations, they agreed
that she may require a sympathetic employer due to the persistent
symptoms experienced
in her right knee. When superimposing the
psycho-social difficulties outlined by Mr Eaton in his report onto
her physical
impairments, the occupational therapists agreed that
they would impact on her efficiency levels in all positions that she
might
manage to secure in her current condition. They opined
that she would not be regarded as suited for work as a social worker
due to the counselling, support, and difficult emotional
circumstances that such a position requires. They were in
agreement
that Ms Minnies would find it difficult to manage such a
position if she herself is compromised on a psychological level.
[12]
I pause to interpose that these
difficulties were evident during the trial in at least two respects.
On multiple occasions during
her evidence Ms Minnies requested leave
to be seated, only to rise again a short while later, due to the
discomfort she experienced.
In respect of her psychological
difficulties, it was evident that she became emotional on every
occasion that she was asked about
the accident and the injuries that
her husband and her daughter had sustained in the accident.
[13]
Thus, the occupational therapists were in
agreement that Ms Minnies suffers severe and permanent impairment to
perform work of greater
than an occasional light nature without
accommodation or that requires cognitive abilities such as
concentration for long periods
of time, working in a stressful work
environment, or working in an environment where time limits need to
be met.
[14]
Mr Coetzee, an industrial psychologist,
considered the various expert reports filed by the parties in respect
of general practitioners,
radiologists, orthopedic surgeons, physio
therapists, clinical psychologists and occupational therapists (all
of which have been
admitted), and he concluded that Ms Minnies is not
regarded as suited for the work of a social worker due to the
counselling, support
and difficult emotional circumstances that such
a position requires. He further opined that she is not regarded
as fit to
return to studying or working with clients in a
professional social work capacity. Thus, he concluded that she
would not
secure any form of remunerative employment in the future.
[15]
As I have said, but for the accident, Ms
Minnies would, in any event, have terminated her employment with
Kromberg Schubert and
taken up employment as a social worker in a
government department. Her anticipated career path and earnings
in her premorbid
condition was not disputed, nor were her actual
earnings after the accident. The only issue in dispute between
the parties,
in respect of her claim loss of earning capacity, was
whether Ms Minnies has, having regard to the accident, retained a
residual
earning capacity.
[16]
On behalf of the defendant, Mr Jacobs, a
social worker employed by the government, was called to testify.
As adumbrated earlier,
Ms Minnies had studied towards a bachelor’s
degree in social work before the collision. She had registered
as a student
social worker, with the South African Office of Social
Service Professions, in 2016, and had worked under the supervision of
Mr
Jacobs in Kariega. Mr Jacobs testified that she had been a
good student. He was clearly impressed with her capabilities.
He confirmed that, after the accident, she did not return to her
social work activities. The purpose of Mr Jacobs’s
evidence was to bolster the defendant’s case that Ms Minnies
had retained some residual earning capacity and that she could
have
obtained employment as an auxiliary social worker. In the
notice delivered in terms of rule 36(9)(b), the defendant
had
intimated that Mr Jacobs would assert that Ms Minnies could have
performed as an auxiliary social worker, for which she is
adequately
qualified, in an office bound environment. The rule 36(9)(b)
notice foreshadowed that she would perform the screening
and
interviewing of people with new complaints. This, inevitably,
requires listening to the emotional complaints of people
in her
community, which would bring into play her own emotional
circumstances that Mr Coetzee had referred to. The rule
36(9)(b) notice did not address this difficulty.
[17]
During his evidence, however, Mr Jacobs did
not advance this opinion. Rather, he said that she could have
operated as an auxiliary
social worker in the field, going out to
community centers, such as schools. He explained that the
auxiliary social workers
in such an exercise would be required to
perform support functions, such as handing out water bottles, or
carrying a microphone
from speaker to speaker during a workshop.
He acknowledged, too, that this work would require her to be on her
feet throughout
the presentation. He admitted that he had not
had sight of the orthopedic report by Dr de Bruin and his evidence
appears
to be irreconcilable with the agreements concluded between
the occupational therapists to which I have referred earlier.
Indeed, at the conclusion of the trial, Mr Dala, on behalf of the
defendant, acknowledged that he had not established a probability
that Ms Minnies could function as an auxiliary social worker.
[18]
As
I have said the premorbid career path postulated by Mr Coetzee and
the plaintiff’s probable earnings in such a career path
are not
in dispute. The plaintiff’s claim for loss of earning
capacity has been actuarially calculated on the acceptance
that Ms
Minnies is unemployable in her current state. In arriving at
the figure claimed, Mr du Toit, the actuary, had made
allowance, for
illustrative purposes, for a 5% contingency deduction in respect of
Ms Minnies’ calculated past loss of income
and 15% in respect
of Ms Minnies’ calculated future loss of earning capacity, but
for the accident. At the trial, the
parties accepted the
contingency reduction of 5% in respect of the calculated past loss of
earning capacity. However, Mr
Dala contended that a more
substantial allowance should be made for contingencies in the
calculation of the future loss of earning
capacity to allow for the
possibility of some future earnings in her injured state.
[2]
It cannot be gainsaid that the retrenchment of Ms Minnies did not
arise only in consequence of her injuries. Some physical
capacity had been retained and the agreement concluded between the
occupational therapists reflects this. It is true, and
undisputed, that her psychological diagnosis coupled with her
physical disability will impact any employment that she may
attain in the future, and it must be recognised that in any
application for employment she would necessarily be competing with
an
oversupply of healthy, able- bodied individuals in the labour
market. However, this does not preclude the generation of
some
form of income, albeit on a limited scale, and the occupational
therapists recognised the possibility of a sympathetic employer.
[19]
The
prognosis postulated by Mr Eaton is uncertain, and an improvement in
her psychological position cannot be excluded. Ms
Minnies
impressed me as an intelligent, presentable woman who has exhibited
the ability, before the accident, to pursue a tertiary
qualification.
For these reasons, I consider that there is merit in Mr Dala’s
submission and that a reduction for contingencies,
including not only
the ordinary contingencies of life, but also the possibility of
future earnings, of 25%, should be applied to
the calculation of
future loss of earning capacity. In the result, the calculation
of past loss of earning capacity in the
amount of R973 229,00
[3]
is to be accepted. The actuarial calculation of the future loss
of earning capacity, before any contingency deduction, was
in the
amount to R6 745 287,00 and the actuarial soundness of the
calculation was admitted. I consider that, for the reasons set
out
earlier, the figure should be reduced by 25%. Accordingly, an
award of R5 058 965,25 in respect of future loss of earning
capacity
represents a fair compensation.
[4]
Past hospital and
medical expenses
[20]
At a pre-trial meeting at the start of the
trial the parties agreed that the plaintiff had in fact incurred past
hospital and medical
expenses in the amount of R156 950,70 as a
result of the injuries sustained by Ms Minnies in the accident.
It was further
recorded that these expenses were fairly, reasonably
and necessarily incurred. Notwithstanding the agreement the
defendant
denied being liable for these expenses. It pleaded:
‘
Notwithstanding
that there is an agreement between the plaintiff and defendant that
the plaintiff’s quantified claim for past
medical and hospital
expenses is the sum of R156 950.70, the defendant denies it is liable
to the plaintiff in that:-
(i)
The plaintiff and her employer contributed
to her medical aid scheme;
(ii)
any such benefits were payable under the
contract of her employment;
(iii)
and as such does not fall within the realm
of either
solatium
,
gratuitous payment, benevolence and not self-insured; and
(iv)
as such falls to be a benefit in the sum of
R156 950,70 to be deducted.’
[21]
All the past medical and hospital expenses
were paid by the medical aid scheme, Sizwe-Gold Accent (the scheme),
of which Ms Minnies
was a member. Kromberg Schubert was a
participating employer, who had contracted with the scheme for
purposes of admitting
all its employees as members of the scheme.
As I have said, Ms Minnies’ remuneration package with Kromberg
Schubert
included medical aid and provident fund contributions.
They paid one third of the contributions to the scheme, while Ms
Minnies
contributed two thirds, and her contract of employment
provided for Kromberg Schubert to deduct her contribution from her
wages.
It was accordingly common cause that her membership of
the scheme was a condition of her contract of employment with
Kromberg Schubert.
As adumbrated earlier, Ms Minnies was
retrenched in 2021, and she testified that she had then applied,
successfully, to remain
an individual member paying the full monthly
contribution herself.
[22]
Mr
Dala argued that because Ms Minnies’ membership of the scheme
originated as a term of her contract of employment with Kromberg
Schubert all payments made by the scheme in respect of her medical
and hospital expenses, both before and after her retrenchment,
constituted benefits derived from her contract of employment which
must be deducted from her claim against the defendant.
The
argument is founded exclusively on the authority in
Dippenaar
v Shield Insurance Co. Ltd
[5]
and
Standard
General Insurance Co. Ltd v Dugmore NO
[6]
.
These cases dealt with pension benefits flowing from a contract of
employment in the context of a claim for loss of earning
capacity in
circumstances where the plaintiffs sought to rely on their contracts
of employment as a measure of their damages.
Those principles
find no application to past hospital and medical expenses and, for
the reasons set out hereafter, I think that
the reliance is
misplaced.
[23]
In
Dugmore NO
Olivier JA set out the general approach
to an award for Aquilian damages as follows:
‘
The
object of awarding Aquilian damages is to place the plaintiff in the
position in which he would have been had the delict not
been
committed, thereby redressing the diminution of his patrimony caused
by the defendant's delict (see, amongst the many cases
expressing this basic principle,
Union
Government (Minister of Railways and Harbours) v Warneke
1911
AD 657
at 665;
Dippenaar v Shield
Insurance Co Ltd (supra
at
917A-D)).
In
calculating the patrimonial position in which the plaintiff would
have been had the delict not been committed, and comparing
it with
his present position, one has to take into account not only the
detrimental
sequelae
of
the delict, but also the advantageous consequences thereof: after
all, one needs to compare the total patrimonial position
of the
plaintiff at present (ie
post
delicto
)
with the corresponding position
ante
delicto (Union Government v Warneke (supra
at
665);
De
Vos v Suid-Afrikaanse Eagle Versekeringsmaatskappy Bpk
1985
(3) SA 447
(A)
at
451I-J;
Santam
Versekeringsmaatskappy Bpk v Byleveldt
1973
(2) SA 146 (A)
at
150A-C).’
[24]
While these
principles find application in respect of all heads of damages for
patrimonial loss, there are exceptions to the rule.
I revert to
this to the extent necessary. Where a plaintiff seeks to claim
damages for loss of earning capacity, he may,
depending on the
circumstances of the case, prove his damages by various means of his
choice. What was decided in
Dippenaar
,
and in
Dugmore
NO
, was
that if such a plaintiff chooses to use his contract of employment at
the time of the delict as a measure of his damages,
the monetary
value of the contract can only be assessed when one looks at the
contract as a whole. Thus, Rumpff CJ explained
in
Dippenaar
:
‘
[I]f
in terms of such contract there is a compulsory deduction from salary
plus a contribution by the employer in order to pay the
employee
money as sick leave or as a pension, it is the intention of the
parties that that money shall be paid when it is
due, in terms of the
contract. In fact the "income" of the employee is, in terms
of the contract, not confined to his
salary (in its ordinary
connotation) but includes also sick pay or pension when such pay or
pension is due.’
[7]
[25]
So, the pension benefit falls to be
deducted from a claim for loss of earning capacity only where a
plaintiff utilised his contract
of employment as the measure of his
damages. In such a case, when considering what their
patrimonial position would have
been had the delict not been
committed, as compared to their present position, the pension benefit
derived in terms of the contract
of employment is to be considered as
retained income. Thus, if a plaintiff were allowed to retain
both the pension and damages
awarded for loss of earning capacity, he
would receive double compensation.
[26]
The
claim for past medical expenses is, in my view, on a different
footing. First, Ms Minnies has placed no reliance on her
contract of employment in order to establish her claim for past
hospital and medical expenses. Second, the scheme made payment
of the medical expenses in terms of its contract with Ms Minnies as a
member. The contract is in substance an indemnity insurance
as
explained by Gautschi JA in
Thomson
v Thomson
[8]
at 547H-I:
‘
A
medical aid scheme is, if not in law then in substance, a form of
insurance. One pays a premium against which there may be
no
claim, or claims less than the value of the premiums, or claims which
far exceed the value of the premiums. Were this a claim
for damages,
whether in delict or in contract, there is little doubt that the
defendant would not have been entitled to rely on
the payments
received from the medical aid scheme.’
[9]
[27]
In
the case of indemnity insurance agreements, such as that which
existed between Ms Minnies and the scheme, three basic rules of
law
have emerged: that the wrongdoer is not entitled to benefit
from the fact that the person wronged was insured;
that the
insured may not be enriched at the expense of the insurer by
receiving both the insurance indemnity and the damages from
the
wrongdoer; and that the insurer replaces the insured; ie the
insured is subrogated by the insurer, which entitles the
insurer to
claim the loss from the wrongdoer.
[10]
The effect of these rules is that once the scheme has paid out the
medical expenses, as it is obliged to do in terms of its
contract
with its member, it acquires the right under the principle of
subrogation to recover its loss from the wrongdoer.
[11]
The insurer may either take cession of the claim from the insured, in
which case it may proceed to sue in its own name, or
it may claim in
the name of the insured. Subrogation is a term implied by law into a
contract of indemnity insurance.
[12]
But, in this case it was an express term of the agreement.
Paragraph 35 of the rules of the scheme provide:
‘
35.1
In the event that expenditure in respect of benefits paid by the
Scheme arose as a result of an accident
or incident or event caused
by a third party and which gives rise to a legally enforceable claim
by the Member or Dependent against
such third party, the Member
and/or Dependent shall be advised to consult an attorney, selected by
the Scheme, to ascertain whether
the claims can be successfully
prosecuted. The Member and/or Dependent shall, if so
advised
by such attorney,
instruct same to proceed with the claim.
35.2
In the event of the Member or Dependent wishing to personally pursue
the matter to finality, the Member
or Dependents shall instruct such
attorney to pay over to the Scheme any proceeds of the claim
recovered as a result of the litigation
insofar as the benefits paid
by the Scheme are concerned.’
[28]
The
question of double compensation simply does not arise, and the
plaintiff’s claim is subject to the principle of
subrogation.
[13]
Accordingly, the scheme incurred obligations to Ms Minnies by virtue
of her membership, subject to her recovering such amounts
from the
defendant to reimburse them. The source of the monthly
contributions to the scheme is immaterial. The benefits
paid by
the scheme are
res
inter alios acta
and the defendant cannot claim the benefit of them.
[14]
Costs
[29]
The general
rule in respect of costs, that the costs follow the result, is
appropriate in this case. However, two earlier
orders that
reserved costs remain for consideration.
[30]
The
matter was initially enrolled for trial on 20 April 2023. At
the hearing the trial judge ordered that the matter stand
over to 24
April 2023. He issued an order that the occupational therapists
instructed by the respective parties should meet
and prepare and
furnish a joint minute on or before 24 April 2023. It appears
from the formulation of the order that the
defendant had intended to
file a report by an industrial psychologist and the trial judge
ordered that it should do so, in terms
of rule 36(9)(b), on or before
24 April 2023. The occupational therapists duly met and a joint
minute was furnished, however,
the defendant remained in default in
respect of the report of the industrial psychologist. When, on
5 May 2023, the defendant
had still not filed the report of its
industrial psychologist, the matter was postponed to 15 August 2023
at the request of the
defendant. The trial judge ordered that
the defendant pay the plaintiff’s trial costs and the costs of
attendance at
case management and roll call proceedings, as well as
the costs of trial preparation checklists in respect of the
plaintiff’s
claim. But he reserved the question of costs
of plaintiff’s second counsel.
[31]
The matter was
again enrolled for trial on 15 August 2023. It emerges from the
order issued on 29 August 2023, that the matter
stood over from day
to day from 15 August to 18 August and thereafter to 22 August.
Thus, on 29 August 2023 Makaula ADJP
ordered that the costs
occasioned by the postponement of the trial, including the costs of
15, 16, 17, 18 and 22 August 2023, due
to the unavailability of a
civil judge, be reserved.
[32]
I consider
first the question of the costs of the second counsel at the hearing
in April 2023. The court has a wide discretion
in respect of
the award of costs where more than one counsel is employed. The
overriding question is whether, in the circumstances,
it was a
reasonably prudent step for the plaintiff to have employed two
counsel. The plaintiff’s claim is a large claim
and in
respect of the loss of earning capacity it was a complex claim.
The complexity of the matter flows from her apparent
physical ability
evidenced by her initial return to her employment and the subtle
psychological impacts which manifested later.
Her claim was
hotly contested at the time and the defendant had instructed its own
industrial psychologist and occupational therapist.
I consider
that it was a reasonably prudent decision to appoint two counsel at
that stage and the reserved issue in the order of
5 May 2023 should
be decided in Ms Minnies’ favour.
[33]
I turn to the
reserved costs in August 2023. For the reasons set out earlier
the blame for the inability to proceed to trial
cannot be laid at the
door of either of the litigants and I consider that it would be just
and equitable for these costs to be
costs in the cause.
Accordingly, Ms Minnies is entitled to the costs that were reserved
on 29 August 2023, including the
costs of two counsel.
[34]
At the trial,
Mr Frost, on behalf of Ms Minnies, urged me to make a special costs
order pursuant to the provisions of rule 37A(13)
– (16).
Rule 37A(14) provides for the trial judge to have regard to the case
flow management record in regard to the
conduct of the trial,
including the determination of any applications for a postponement
and issues of costs. Rule 37A(14)
records that the failure by a
party to adhere to the principles and requirements of rule 37A may
attract an adverse costs order.
In this respect Mr Frost has referred
me to a number of pre-trial procedures before April 2023 and again
before August 2023,
which he submitted were reflective of the
defendant’s failure to adhere to the principles and
requirements of rule 37A.
I consider that there is merit in a
number of the issues raised, but I do not think that it justifies a
special costs order.
The events giving rise to the postponement
on 5 May 2023 have already been considered by the trial judge, who
made an order in
respect of the attendances at case management and
roll call proceedings as well as the costs of trial preparation
checklists in
respect of the plaintiff’s claim at the time.
He has already applied his mind to these issues and made an order
which
he considered to be appropriate.
[35]
Because there
was no trial judge available in August 2023, the failures of the
defendant’s representatives did not have a
material impact upon
the proceedings. Whatever the shortcomings might have been at
the time, they have not contributed to
protracting the trial or
delaying its finalisation. I do not consider that a special
order as to costs in this respect is
justified on the facts.
[36]
In the result,
the defendant is ordered to pay to the plaintiff:
1.
The amount of
R800 000,00, as and for general damages;
2.
the amount of
R6 032 194,25 in respect of past and future loss of earning capacity;
3.
the amount of
R156 950,70 in respect of past hospital and medical expenses;
4.
the
plaintiff’s costs of suit, including the costs reserved on 29
August 2023, all such costs to include the costs of two
counsel; and
5.
the costs of
the plaintiff’s second counsel that were reserved on 5 May
2023.
J W EKSTEEN
JUDGE
OF THE HIGH COURT
Appearances:
For
Plaintiff:
Adv A Frost, Adv B Westerdale
Instructed by:
Boqwana Burns, Gqeberha
For Defendant:
Adv I Dala
Instructed by:
The State Attorney, Gqeberha
Date Heard:
7, 8, 9, 14 February 2024
Date Delivered:
27 February 2024
[1]
Act
56 of 1996
[2]
See
Road
Accident Fund v Kerridge
[2019] 1 All SA 92 (SCA); [2018] ZASCA 151 (SCA).
[3]
The
capped calculation.
[4]
It
does not exceed the upper limit prescribed in s 17(4).
[5]
1979
(2) SA 904 (A); [1979] 4 All SA 92 (A).
[6]
1997
(1) SA 33 (A); [1996] 4 All SA 415 (A).
[7]
Dippenaar
at
920D-E.
[8]
2002
(5) SA 541
(W).
[9]
See
also
D’Ambrosi
v Bane and Others
2006 (5) SA 121
(C) at 134E-F.
[10]
See,
for example,
Rand
Mutual Assurance Co. Ltd v Road Accident Fund
[2008] ZASCA 114
;
2008 (6) SA 511
(SCA) at 519 para 17.
[11]
See
Visser
and Potgieter: Law of damages (3
rd
ed)
p.
236.
[12]
The
MT
‘Yeros’ v Dawson
Edwards
and
Associates
[2007] 4 All SA 922
(C) at 930A-E; and
Rand
Mutual Assurance
para
18.
[13]
See
also
Bane
and Others v D’Ambrosi
2010 (2) SA 539
(SCA) at 550E-H.
[14]
Bane
at
550 para 19.