V.D obo M.D v Member of Executive Council, Department of Health, Eastern Cape (634/2017) [2021] ZAECBHC 10 (13 August 2021)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Bhisho
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Bhisho
>>
2021
>>
[2021] ZAECBHC 10
|

|

V.D obo M.D v Member of Executive Council, Department of Health, Eastern Cape (634/2017) [2021] ZAECBHC 10 (13 August 2021)

NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, BHISHO)
Case
No. 634/2017
In
the matter between:
V[...]
D[...] obo M[...]
D[...]
Plaintiff
and
MEMBER OF
EXECUTIVE COUNCIL,
DEPARTMENT OF
HEALTH,
EASTERN CAPE

Defendant
JUDGMENT IN
RESPECT OF INTERLOCUTORY APPLICATION FOR INTERIM PAYMENT
HARTLE
J
[1]
The plaintiff seeks
an order for an interim payment in terms of Rule 34A in the sum of
R8 000 000.00 together with a punitive
costs order.
[1]
[2]
The application is
incidental to the main action in which the plaintiff claims damages
in the sum of nearly R30 000 000.00
in both her personal
capacity and as the legal representative of her brain damaged
son.
[2]
The portion of her
claim for future medical expenses is “estimated” to be in the sum
of R20 650 000.00.
[3]
[3]
The child is presently twelve years old.
[4]
The damages claim arises from the negligence of the defendant’s
medical
staff during his birth in 2009 at the Indwe Hospital.
[5]
On 20 October 2020 the defendant conceded liability.  An order
was
issued by Smith J giving effect to her concession and acceptance
that she is liable to compensate the plaintiff “in whatever form
or
manner allowed in law (for) 100% of all agreed and/or proven damages
that (she), in her personal and representative capacity for
and on
behalf of her minor child (M[...] D[...]), has suffered as a result
of the negligence of the Defendant’s staff resulting
in the
cerebral palsy of the said minor child, whether in cash or kind.”
[6]
It is immediately
evident from the manner in which the merits order has been framed
that the defendant intends to keep her options
open to have the
plaintiff compensated in due course “in kind”, if not in cash,
foreshadowing possible reliance ultimately on
the so-called “public
healthcare defence” which the Constitutional Court in MEC for
Health & Social Development, Gauteng
v D Z obo W Z
[4]
endorsed as opening the door to develop the common law by permitting
the State to pursue compensation for damages in kind in actions
such
as the plaintiff’s.
[7]
In her answering
affidavit the deponent asserts, in response to Mr. Klaas’
allegation that the nature and sequelae of the child’s
injuries are
set out in certain medico-legal reports filed in the action,
[5]
that the medical services which the plaintiff is alleging will be or
have been incurred and the medical supplies required for the
child’s
benefit are available from the public healthcare sector at no cost,
or at a lesser cost at a standard at least equivalent
to that
provided in the private healthcare sector, alternatively at a better
standard, rendering it unnecessary to finance the proposed
provisioning of such care in the private healthcare sector.
Indeed, the respondent tenders the provisioning of such medical
services and medical supplies to the applicant and/or the child in
the interim under the auspices of the public healthcare system.
[8]
Mr. Mlambo, a senior manager of the Department in legal services, who
deposed
to the answering affidavit on the defendant’s behalf,
asserts that the Department has been providing such services to the
child
at a reasonable and acceptable standard and that the defendant
is confident that there are institutions under the department’s
control, and others under the control of other government
departments, where the required care can be provided to patients
suffering
from cerebral palsy.
[9]
This assurance is given in particular to counter the plaintiff’s
request
for the lump sum interim payment.
[10]
As an aside Mr. Mlambo laments the damaging and crippling effect that
lump sum payments will
have on other patients who rely on public
healthcare institutions.  He points out in this respect that it
is “widely accepted”
that medico-legal claims against the MEC’s
of Health in South Africa presently stand at an alarming amount of
R100 000 000 000.
He attributes this largely to
claims such as the plaintiff’s which are “pleaded at private
health care rates” and in many other
instances supposedly even
above reasonable private healthcare rates.
[11]
I cannot imagine that this is an argument that will prevail over a
plaintiff’s need for
an interim payment if the jurisdictional
requirements are established and the court exercises its discretion
in favour of granting
the relief sought on the basis that it is
just.  The defendant’s claim that interim payments will
cripple the Department financially
does not bring her within the
ambit of the exclusion provided for in subrule (5) where a defendant
does not have the means at his/her
disposal to make an interim
payment.  In my view the means of the defendant is not an issue.
Perhaps the answer is to ask that
instead of a lump sum being ordered
that the defendant instead pay in instalments. Alternatively, there
may be a basis to contend
that the provisions of subrule (6) also
envisage a payment in kind as opposed to a lump sum payment.
[12]
Mr. Mlambo says that, in his professional view, the amount claimed by
the plaintiff in the
action stands to be significantly reduced upon
trial to a figure as low as between R2 000 000.00 to
R2 800 000.00
for general damages and loss of earnings
only, alternatively discounted in full if the public healthcare
defence is accepted.
[13]
Apart from the reservation expressed by the defendant that the
plaintiff can obtain the services
she needs for her child in the
interim from public healthcare facilities, the chief argument
advanced against the relief sought is
that there is an absence of
sufficient detail or quantification of the child’s medical costs in
the short term (until the anticipated
trial date in the third term)
to warrant the interim payment of R8 000 000.00.
[14]
Whilst acknowledging
that the child has medical needs, the defendant repeats that these
can reasonably be met in the public health
care sector.  For
present purposes, however, she concedes the physiotherapy treatment
said to be needed by the child in the
private healthcare sector “over
a limited period of up to one year”.
[6]
[15]
The defendant further points out the reasonable anticipation that the
trial on quantum will
be finalized in “roughly” four months
without any expected delays.
[16]
Rule 34A provides a
unique procedural remedy to a claimant (whether acting in a personal
or representative capacity) who has suffered
damages in the form of
medical costs and loss of income arising from physical disability or
the death of a person, from a certain
juncture after the issue of the
summons claiming such damages, to apply for an interim payment “on
account” of what the plaintiff
(i.e. the claimant or applicant for
the interim payment)
must
still prove in the action
in
order to obtain judgment in his/her favour upon the trial of the
action, provided the prescribed jurisdictional facts and the
necessary
requirements therefor are met.
[7]
The enforcement of this right is entirely in the discretion of the
court, but subject to the defendant being safeguarded as provided
for
in the rule in respect of such advance payment (representing a
reasonable proportion of the medical costs or loss of income that
will
likely be recovered as damages
arising
from the physical disability), pending final judgment or the order
that the court will make at some as yet uncertain future
time upon
the conclusion of the trial.
[8]
[17]
The rule, which was
inserted in the Uniform Rules in 1987,
[9]
provides as follows:
“
34A
Interim Payments
(1)
In an action for damages for personal injuries or the death of a
person, the plaintiff may, at any time after the expiry of the
period
for the delivery of the notice of intention to defend, apply to the
Court for an order requiring the defendant to make an
interim payment
in respect of his claim for medical costs and loss of income arising
from his physical disability or the death of
a person.
(2)
Subject to the provisions of Rule 6 the affidavit in support of the
application shall contain the amount of damages claimed and
the
grounds for the application, and all documentary proof or certified
copies thereof on which the applicant relies shall accompany
the
affidavit.
(3)
Notwithstanding the grant or refusal of an application for an interim
payment, further such applications may be brought on good
cause
shown.
(4)
If at the hearing of such an application, the Court is satisfied that
-
(a)
the
defendant against whom the order is sought has in writing admitted
liability for the plaintiff's damages; or
(b)
the
plaintiff has obtained judgment against the respondent for damages to
be determined, the Court may, if it thinks fit but subject
to the
provisions of subrule (5), order the respondent to make an interim
payment of such amount as it thinks just which amount shall
not
exceed a reasonable proportion of the damages which in the opinion of
the Court are likely to be recovered by the plaintiff taking
into
account any contributory negligence, set off or counterclaim.
(5)
No order shall be made under subrule (4) unless it appears to the
Court that the defendant is insured in respect of the plaintiff's
claim or that he has the means at his disposal to enable him to make
such a payment.
(6)
The amount of an interim payment ordered shall be paid in full to the
plaintiff unless the Court otherwise orders.
(7)
Where an application has been made under subrule (1), the Court may
prescribe the procedure for the further conduct of the action
and in
particular may order the early trial thereof.
(8)
The fact that an order has been made under subrule (4) shall not be
pleaded and no disclosure of that fact shall be made to the
Court at
the trial or at the hearing of questions or issues as to
the
quantum
of damages until such questions or
issues have been determined.
(9)
In an action where an interim payment or an order for an interim
payment has been made, the action shall not be discontinued or
the
claim withdrawn without the consent of the Court.
(10)
If an order for an interim payment has been made or such payment has
been made, the Court may, in making a final order, or when
granting
the plaintiff leave to discontinue his action or withdraw the claim
under subrule (9) or at any stage of the proceedings
on the
application of any party, make an order with respect to the interim
payment which the Court considers just and the Court may
in
particular order that:
(a)
the
plaintiff repay all or part of the interim payment;
(b)
the
payment be varied or discharged; or
(c)
a
payment be made by any other defendant in respect of any part of the
interim payment which the defendant, who made it, is entitled
to
recover by way of contribution or indemnity or in respect of any
remedy or relief relating to the plaintiff's claim.
(11)
The provisions of this Rule shall apply
mutatis
mutandis
to any claim in
reconvention.”
[18]
The provisions of sub-rule (2) are of particular relevance to the
defendant’s opposition
to the present claim.
[19]
In Van Wyk v Santam
Bpk,
[10]
the court held that
the standard
of proof referred to in the jurisdictional requirements outlined in
sub-rule (2) is not as high as it will be when
the action goes on
trial. The degree of evidence required by the Court at this
stage in order to be able to direct an interim
payment will vary from
case to case and according to the circumstances of each case.
[20]
One
of the considerations which will be weighty is the extent of facts in
dispute as well as the nature of these facts.
[11]
In Van Wyk where the deponent of the originating affidavit referred
to the medico legal reports already filed of record in support
of the
request for an interim payment, criticism levelled against him for
failing to file confirmatory affidavits by the experts
themselves
came to naught, the court even going so far as to suggest that the
formalism of obtaining such affidavits would amount
to an unnecessary
running up of costs in a scenario where the focus is on gaining an
impression only, or conducting a rough and ready
assessment, of what
is necessary at this stage to be advanced as an interim payment.
[21]
I turn now to the question to whether the plaintiff has substantially
met the objectives
of sub-rule (2) in the present application.
[22]
Mr. Klaas, the authorized legal representative of the plaintiff,
referred to several medico-legal
reports already filed in the action
by a multidisciplinary team of experts.  Those were not
attached, neither was the action
file placed at the disposal of the
court.
[23]
He submitted on an
overall conspectus of “these” the necessity for “such”
assistance to be provided to the child who is claimed
to be in “dire
need” thereof in order to “alleviate daily suffering and to
assist
her
to enjoy life”.
(Emphasis added.)
[12]
[24]
He also sought to impress upon the court that the sum of
R8 000 000.00 against
the sum of R20 650 000.00
claimed in respect of future medical and related expenses, represents
a “reasonable” proportion
of damages that the child will
ultimately be awarded.
[25]
He attached an
affidavit of Ms. Rungqu, a qualified physiotherapist in support of
the application, which, with reference to her attached
opinion, lists
a per annum cost of R80 992.86 for physiotherapy procedures the
child will undergo.
[13]
Her affidavit termed a “founding affidavit in application for an
interim payment” does not even correctly categorize the
gender of
the child as male, leaving the unfortunate impression that the
affidavit was hurriedly and perfunctorily prepared.
[26]
A report of a professional nurse, Ms. Susan Anderson, was also
attached in support of the
application together with a notice in
terms of rule 6 (9)(a) and (b) but only on 14 April 2021, after the
defendant had delivered
her answering affidavit.  In a
supplementary affidavit deposed to by Mr. Klaas to explain the
context of her report he alleges,
again obviously perfunctorily, that
the plaintiff and “Ongeziwe” (not even the name of the child)
were assessed by her in relation
to the report and concludes with the
allegation that she “makes recommendation which Ongeziwe needs in
order to help with her life
which is apparent from the attached
report”.  (Again, name and gender incorrect.)
[27]
Later, on 20 April
2021, after a challenge by the defendant that her opinions were
inadmissible for want of a supporting affidavit,
Mr. Klaas put up an
affidavit by her in support of his contentions as to what services
the child requires in the future.  In
it, Ms. Anderson alleges
that the child urgently requires systematic and structured medical
and related treatment, which must commence
without delay.  She
adds that should the necessary financial means be made available that
the child needs the indicated treatment
“at the relevant cost (as
stated in her attached report) over the next months”.  She
avers further that the treatment would
need to be scheduled “as a
matter of urgency” in consultation with a case manager and in
consultation with other relevant treatment
practitioners”.
Nothing helpful is said about the public healthcare defence or the
defendant’s assertion that
certain
services and medical equipment ought to be available to the plaintiff
in the public healthcare system
.
[14]
(Emphasis added)
[28]
In any event, one has to make sense oneself of what in the schedule
alluded to by Ms. Anderson
is alleged to be vitally necessary in the
next few months and what the estimated cost of each service will be.
The plaintiff
could not even be bothered to extract from the table
what is relevant for present quantification purposes.
[29]
Mr. Toni, who appeared on her behalf, when pressed to be more
specific about what was necessary
now and in the foreseeable future
and at what cost, could also not provide a figure.
[30]
Be that as it may the costs that one can imagine might be incurred
from the list in the interim
pending the quantum trial do not near
equate to R8 000 000.00.
[31]
Regarding the other required services (apparently vouched for in
medico-legal reports already
filed of record), the file in the action
was not even placed before the court, not that it is the duty of the
court to wade through
the papers and glean this information for
itself.
[32]
It is therefore unclear what other services are necessary or at what
cost.  For this
reason, the court cannot even gain an impression
or perform its own rough assessment of which of these services can be
provided “in
kind” in the short term alternatively ought to be
brought into the reckoning for a lump sum payment.
[33]
Applications of this
nature fulfil a specific purpose and interim awards are not for the
mere asking simply because liability has
been conceded.  In this
instance Mr. Mlambo, in deposing to his affidavit that was delivered
before the report of Ms. Anderson
had come to hand, explained the
difficulty that he was faced with.  As a senior manager he is
required to assess and evaluate
medico-legal claims and to make
recommendations to the defendant in respect of both liability and the
quantum of such claims.
Leaving aside his technical objections
to the absence of confirmatory affidavits and inadmissible hearsay
evidence,
[15]
he could only
really comment on what Ms. Rungqu suggested was reasonable and
necessary in her dated report.
[34]
Regarding the other expert reports (the contents of which, except for
Ms. Anderson’s report,
this court has not even been privy to) he
was of the view that these services could be provided through the
public healthcare system.
This was not gainsaid by the
plaintiff except for the sweeping generalization by Mr Klaas of his
concern that the defendant is ill
equipped to provide adequately for
such services in kind.
[35]
Even though the standard of proof is not as high when it comes to
assessing an interim need,
the requirement stated in rule 34A (2) can
hardly be met by just cobbling together random reports, or by
referring to reports in
general.  I would imagine that even if
the plaintiff’s attorney has presented a proper opinion of what was
reasonably anticipated
to be necessary in the next few months, that
this would have assisted the exercise and might have sufficed.
Neither is it about
simply asserting a percentage of the overall
claim to be a reasonable proportion of what should be advanced on
account of what the
plaintiff may ultimately be awarded.  The
public healthcare defence renders the base figure on which that
calculation is premised
somewhat less exacting so the detail of what
is required pending the trial ought to be engaged with a bit more
extensively than the
plaintiff has.
[36]
When the matter was
called before me Mr. Rili who appeared for the defendant had his own
professional view, based on what Ms. Rungqu
and Ms. Anderson at least
have indicated is reasonably required for present purposes,
concerning what amount in their opinion, ought
to be awarded as an
interim payment, but he advised that the defendant’s instructions
regarding his proposal could not be obtained.
[16]
Although counsel should come to the court’s assistance as much as
possible, both being proficient in the exercise of assessing
the
quantum of damages (even in respect of a part payment thereof), I
agree with Mr. Rili that the plaintiff has in this instance
woefully
failed to meet the requirement stated in sub-rule (2) and the
application ought for this reason not to succeed.
[37]
I should add that I
also cannot read into the situation any anticipated trial prejudice
that would conduce to the claimed exigency
of so substantial an
interim payment
[17]
given the
parties’ acceptance that the trial will in all likelihood be
finalized in the third term.
[38]
This notwithstanding, the defendant has conceded the need of the
child to receive treatment
in the interim (in the public healthcare
sector) in kind, and by way of a lump sum payment for the
physiotherapy treatment indicated
by the report of Ms. Rungqu. As
indicated above it is not for the court to extrapolate from Ms.
Anderson’s report which of the
services she lists should be added
to the mix.
[39]
I intend to order that such an advance be made (on the basis of the
defendant’s concession
made in the answering affidavit), but the
plaintiff will have to forfeit her costs of making this application.
I repeat that
she has failed to make out a proper case as the rule
requires and to award her costs on the basis of the limited payment
that I intend
to authorize would be tantamount to my condoning the
slipshod papers presented to me in this matter. I would rarely be
inclined to
dismiss an application of this nature but this is
certainly one of those instances where the plaintiff has not gone far
enough to
make out a proper case.
[40]
The plaintiff is of course entitled to approach the court for a
further interim payment pursuant
to the provisions of sub-rule (3) on
good cause shown.  The other alternative is to utilize the case
management machinery at
the parties’ disposal to ensure the
earliest enrolment of the action upon trial in respect of quantum.
[41]
In all the circumstances the amount referred to below is the only
cash advance that I consider
just to authorize for now.
[42]
The plaintiff’s attorneys would do well to bear in mind in future
that a court in exercising
its discretion is required in sub-rule (4)
to apply its mind against an overall conspectus of what a plaintiff
is likely to recover upon trial
considering any contributory
negligence, set off or counterclaim.  To this must be added the
more recent public healthcare defence
that the defendant is raising
in actions such as these.
[43]
In reckoning with the probabilities that this “defence” may
succeed at trial the plaintiff
should be careful in setting out what
expenses will be particularly justified and necessary and which of
these in her opinion cannot
be provided in kind and why she so
contends.  The defendant ought in response to indicate where (in
the plaintiff’s locality)
such services can be accessed at a public
healthcare facility that meets the special needs of a child with
cerebral palsy. This ought
not to entail a full-on engagement with
the public health care defence but is a rough and ready assessment of
what amount should
be advanced in cash pending finalization of the
quantum trial.
[44]
The public healthcare defence will likely only impact to the
extent that a court will
have to dwell on the question of what is
likely to be awarded as quantum ultimately and which of the services
and costs can be made
available to the plaintiff “in kind” so to
speak.  The objective of a rule 34A application is to meet the
child’s needs
(that in the long term will be represented in the
quantum award) in the here and now so as to mitigate against any
trial prejudice
especially if it is going to be a while before the
issue of what amount falls to be paid in cash or in kind can be
finally determined.
[45]
In the result I issue the following order:
1.
The defendant/ Eastern Cape Department of Health is ordered
to pay to
the applicant the sum of R81 000.00 (eighty-one thousand rands)
as an interim payment.
2.
Such amount is to be paid within fifteen court days of
this order.
3.
The aforesaid amount shall be paid to the
plaintiff’s attorney Trust Account whose account details are as
follows:
Account holder
: M T Klaas Incorporated
Bank
: (to be confirmed)
Account
no          : 623 937
91332
Branch code
: 211021
Branch name
: Vincent
4.
Until an
inter
vivos
trust is established for the
benefit of the child to administer the quantum award that this court
will ultimately make, the interim
payment is to be invested in an
interest-bearing account in terms of
section 86
(4) of the
Legal
Practice Act, No. 28 of 2014
, and used for the payment of any
reasonable expenses or disbursements for the benefit of the child as
a trustee would be able to
do pursuant to the objects of the
anticipated Trust.
5.
The plaintiff’s attorneys are directed, in due course,
to account
fully to the trustee appointed, of all costs, fees, expenditure
and/or disbursements paid from the interim payment once
the Trust has
been registered and the balance of the award is paid over.
6.
In the meantime, the defendant is requested to hold to
her
undertaking to provide such medical services and medical supplies to
the applicant and/or the child under the auspices of the
public
healthcare system such as are available and accessible to them
pending the finalization of the trial in respect of quantum.
7.
The plaintiff shall be liable for the costs of this application,
which shall not be offset by either her attorneys (in respect of
attorney and client fees for which she is liable to them) or the
defendant (in respect of its party and party costs of this
application) against the interim payment.
B
HARTLE
JUDGE
OF THE HIGH COURT
DATE
OF HEARING:
5 August 2021
DATE
OF JUDGMENT:
13 August 2021*
*Judgement
delivered electronically to the parties by email.
APPEARANCES
:
For
the applicants:   Mr. P Toni instructed by M T Klaas, East
London (ref. Mr. Klaas).
For
the first respondent: Mr. M Rili instructed by Norton Rose Fulbright
Inc. care of Smith Tabata Attorneys, East London (ref. 33N937015).
[1]
The
plaintiff never justified the necessity for such a costs order.
As will appear from the judgment, the prayer seems to have
been
perfunctorily included as if the plaintiff was entitled to it as of
right.
[2]
This
information is gleaned from the answering affidavit.
[3]
The
action file was not placed before the court.  The assertion
concerning the estimated claim appears from the founding affidavit
of Mr. Klaas, the plaintiff’s authorised attorney and deponent on
her behalf.
[4]
2018
(1) SA 335 (CC).
[5]
As
I indicated above the action file was not placed at the court’s
disposal.
[6]
The
suggestion that these be costed as provided for in “paragraph 34
above” makes no sense but I assume the reference was intended
to
be to the per annum costing of Ms. Rungqu, the physiotherapist, who
has indicated that the child requires such services at an
estimated
cost of R80 992.86 per annum.
[7]
See sub-rules (1)– (5);
Karpakis
v Mutual & Federal Insurance Co Ltd [19913 All SA 430 (O) at
page 436.
[8]
Karpakis,
Supra
,
at page 436.
[9]
The
novel procedural remedy was introduced by
Rule 25
of GN R2164 of 2
October 1987 and
Rule 25
of GN 2642 of 27 November 1987.
[10]
1997 (2) SA 544
(O), at 546 G- 547 F.
[11]
It
is in this respect that the public healthcare defence will probably
receive traction in applications of this nature.
[12]
The
child who is the subject of the application is a boy.
[13]
This
was not filed together with the founding affidavit, but at least it
preceded the filing of the defendant’s answering affidavit.
It is dated in August 2019.
[14]
In this respect Mr. Klaas says “I vehemently disagree with the
Respondent’s contention that medical services and medical supplies
required by the minor child are available from the public healthcare
sector at no cost or at a standard at least equivalent to
that
provided in the private healthcare sector.  The respondent is
misleading this Honourable Court in that he knows for a
fact that
the health system in the province is on the brink of collapse for
more than a decade. The crumbling infrastructure, unavailability
of
medication, clinical problems and shortage of medical staff
continues to be a major issue in the Eastern Cape.” Whilst all
of
these concerns may be valid, it is difficult to test Mr. Klaas’
complaints without a study of what services and expenses are
supposedly in contention and if these services can in fact be
provided in kind. My present concern is with the lack of information
concerning what is necessary now and at what cost exactly.
Contrariwise the defendant, who has seen these reports suggests that
these are services or supplies that the plaintiff and her child can
access in the public healthcare sector.
[15]
As
indicated in Van Wyk (Supra) extreme formalism regarding the manner
in which this evidence is presented should be avoided to
keep
unnecessary costs to a minimum.
[16]
This
is also an unfortunate state of affairs.  A state party against
whom a hefty claim of R8 000 000.00 has been claimed and
who is
litigating with the public purse should certainly make herself
available to instruct her counsel or ensure that a firm mandate
is
given one way or the other. I allowed Mr. Rili an opportunity to
stand down so that he could obtain the defendant’s instructions,
but this attempt came to naught. These applications, especially
since they involve the invocation of a procedural remedy in an
existing action where the end result can be projected with some
certainty, ought to be settled as best they can.  I can rarely
imagine a scenario in which there would be an absolute defence to an
interim payment request.  Counsel employed by parties
in
applications like these are usually extremely well versed in making
projections on what amounts are reasonable when it comes
to
assessing quantum.  They ought to be able to assist the court
as much as they can without being stunted by a lack of instructions.
[17]
See
sub-rule (7) which implies a consideration of factors impacting on
the conduct of the trial or standing in the way of the issue
of
quantum being determined as early as reasonably possible.