About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2019
>>
[2019] ZAFSHC 55
|
|
Van Reenen v Lewis and Another (2302/2014) [2019] ZAFSHC 55 (14 May 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE STATE DIVISION, BLOEMFONTEIN
Reportable:
YES
Of Interest to
other Judges: YES
Circulate to
Magistrates: NO
Case No:
2302/2014
In the
matter between:
ILSE
ERNA VAN
REENEN
Plaintiff
and
DR PIERRE GERHARDUS LEWIS
First Defendant
LIFE ROSEPARK
HOSPITAL
Second Defendant
JUDGMENT
CORAM:
NAIDOO J
HEARD
ON:
28 -31 August
2018; 4 -15 February 2019
DELIVERED
ON:
14 May 2019
INTRODUCTION
[1] Prior to 29 June 2011, Ilse Erna
Van Reenen (the plaintiff) was an active, independent and healthy 66
year
old woman, whose assistance was pivotal to running the sheep
farm in Noupoort, near Colesberg, which she and her husband owned.
Her complaint appears to have been ongoing back pain. On the advice
of the neurosurgeon treating her, she underwent spinal surgery
on 29
June 2011. There were serious complications after the spinal
operation, which resulted in her now living a severely debilitating
life. She has lost control of her bladder and bowel functions, and
cannot walk unassisted. She uses a walking frame, with wheels,
to
assist her to walk, but does so with great difficulty. The condition
she suffers from now is called Cauda Equina Syndrome (CES).
This is a
problem or dysfunction of the Cauda Equina, which is a collection of
the spinal nerves in the lower back resembling a
horse’s tail.
Hence the term Cauda Equina (Latin for horse’s tail).
[2] The neurosurgeon who treated
the plaintiff is the first defendant, Dr Pierre Gerhardus Lewis, who
performed
the operation at Life Rosepark Hospital in Bloemfontein
(the second defendant), who is a member of the Life Healthcare Group
(Pty)
Ltd. Plaintiff’s post-operative care was managed by
the nursing staff employed by the second defendant. The plaintiff
issued summons against the first and second defendants, claiming
damages she suffered as a result of her post-operative care in
the
second defendant’s hospital. Adv WP De Waal represented the
plaintiff, Adv ST Farrell represented the first defendant
and Adv W
Bezuidenhout represented the second defendant.
BACKGROUND
[3] The trial commenced on 28
August 2018 and continued until 31 August 2018, when it was postponed
for
further hearing to the period 4 –15 February 2019. The
trial proceeded for eleven (11) days in total and the final two days
were utilised for arguments in respect of costs.
[4] The plaintiff led several
expert witnesses, including the expert neurosurgeons, Dr WA
Liebenberg and
Dr JJ Du Plessis. The latter was in fact, the expert
of the first defendant, after whose testimony the plaintiff closed
her case;
the plaintiff also led the evidence of a nursing expert.
The first defendant commenced his testimony on 12 February 2019 and,
after
intensive and extensive cross-examination, concluded such
testimony on 13 February 2019. At the end of the testimony of the
first
defendant on the 11
th
day of trial (13 February
2019), the plaintiff withdrew her claim against him, and the costs of
the first defendant were reserved
for determination at the end of the
trial. The second defendant consented to the withdrawal of the action
against the first defendant.
Mr Farrell as well as the first
defendant were excused from attendance at the further proceedings,
including the argument on costs.
[5] Mr Farrell’s
standpoint on the first defendant’s costs was that the
plaintiff withdrew the
action against the first defendant and was
liable for his costs, unless the plaintiff succeeded in arguing that
the second defendant
should pay the first defendant’s costs.
After an adjournment, at the request of the second
defendant, to enable it to reconsider its position, Mr Bezuidenhout
informed
the court that the second defendant concedes 100% liability
in respect of the plaintiff’s proven or agreed damages arising
from the Cauda Equina Syndrome, together with the plaintiff’s
costs on a party and party scale, such costs to include the
costs
consequent upon the employment of senior counsel and the expert
witnesses called by the plaintiff. A written agreement to
this effect
was handed up by the parties. The tender in respect of costs was not
acceptable to the plaintiff, with the result that
the arguments on
costs ensued on 14
th
and 15
th
February
2019.
ISSUES
[6]
The
issues that this court is tasked with determining are
6.1 The appropriate scale of costs as
between the plaintiff and the second defendant, namely whether it
should be on
the scale of party and party or attorney and own client,
alternatively, attorney and client.
6.2 The appropriate scale of costs in
respect of the first defendant and who is to pay these costs.
THE LAW
[7] It is well established
in our law that the general rule regarding costs is that the
unsuccessful
party pays the costs of the successful party on the
party and party scale. The determination of an appropriate costs
order is in
the discretion of the court, which discretion is usually
informed by a number of factors in order that such discretion be
exercised
judiciously.
Erasmus in Superior
Court Practice, D5-6,
states it succinctly as
follows:
In
leaving the court a discretion, the law contemplates that it should
take into consideration the circumstances of each case, carefully
weighing the issues in the case, the conduct of the parties and any
other circumstance which may have a bearing on the issue of
costs and
then make such order as to costs as would be fair and just between
the parties
.
This is particularly so if the court intends on
departing from the general rule. There is a duty on a litigant
to avoid conducting
litigation in such a manner that it unduly
protracts a case or unduly causes an escalation in costs.
[8] It is also well established
that vexatious conduct, even if it was not intended to be vexatious
but
has the effect of being vexatious, may well be the basis for an
order awarding costs on an attorney and client scale. Where a
litigant
was able to, but fails to take steps to curtail proceedings
and thus causes an escalation in costs, he may similarly face the
prospect
of paying costs on the attorney and client scale, on the
basis that his conduct was unreasonable.
(See LAWSA, Volume 10,
Third Edition, 284).
In this regard, the dictum of the court in
Johannesburg City Council v Television & Electrical
Distributors (Pty) Ltd and Another 1997(1) SA 157 (A),
is
apposite. The court, citing with approval the remarks of the courts
in the matters of
Phase Electric Co (Pty) Ltd v Zinman’s
Electrical Sales (Pty) Ltd 1973(3) SA 914 (W), In re Alluvial Creek
Ltd
1929 CPD 532
at 535 and
Hyperchemicals International (Pty) Ltd and Another v
Maybaker Agrichem (Pty) Ltd and Another 1992(1) SA 89 (W) at
101G-102D,
said:
“
It
was not disputed that in appropriate circumstances the conduct of a
litigant may be adjudged ‘vexatious’ within the
extended
meaning that has been placed upon this term in a number of decisions,
that is, when such conduct has resulted in ‘unnecessary
trouble
and expense which the other side ought not to bear’. Naturally
one must guard against censuring a party by way of
a special costs
order when with the benefit of hindsight a course of action taken by
a litigant turns out to have been a lost cause”.
[9] In the
Phase
Electric
case, a messenger in the applicant’s
firm negligently failed to properly file or bring to the attention of
any of the firm’s
members that a letter of demand it sent to
the respondent had been returned and had not been delivered to the
respondent. The applicant,
unaware that the letter had not been
delivered, then proceeded to obtain a provisional liquidation order
against the respondent.
The court held that:
“
The
conclusion that their action was due to the negligence of a member of
their staff, in a general sense, by not ensuring that
the registered
letters returned to his firm were put on the proper files, or
retained at all, is however, inescapable. The returned
letter seems
to have been completely lost. For this negligence the attorneys are
responsible and it does not assist their client,
as against the
respondent, to say that no responsible member of their firm had sight
of the returned letter. Through someone’s
clear neglect in
their office, they did not know about it. In the result the
respondent was put to much expense and was inevitably
subjected to
great embarrassment. The effect of this neglect was therefore that
the proceedings against the respondent were vexatious
although they
were not intended to be such”.
[10] In the
Hyperchemicals
case, the
court expressed a similar view with regard to the vexatious effect of
proceedings, and as in the
Johannesburg City Council
matter,
also cited with approval the remarks of Gardiner JP at p535 in the
Alluvial Creek
case referred to above, where he said:
“
An
order is asked for that he pays the costs as between attorney and
client. Now sometimes such an order is given because of something
in
the conduct of a party which the Court considers should be punished,
malice, misleading the court and things like that, but
I think the
order may also be granted without any reflection upon the party where
the proceedings are vexatious, and by vexatious
I mean where they
have the effect of being vexatious although the intent may not have
been that they should be vexatious”.
In
my view, the concluding remarks in the above extract are equally
pertinent to the present case:
“
There
are people who enter into litigation with the most upright purpose
and a most firm belief in the justice of their cause, and
yet whose
proceedings may be regarded as vexatious when they put the other side
to unnecessary trouble and expense which the other
side ought not to
bear”.
[11] Although the purpose of an award of
costs on the attorney and
own
client scale was the subject of
the court’s remarks in
Sentrachem Ltd v Prinsloo
1997 (2) SA
1
(A)
, my view is that such remarks apply equally to costs on the
attorney and client scale, given the current practices in the
taxation
of such bills of cost. The court said that an award of costs
on an attorney and own client scale against the unsuccessful party
must be seen as an attempt by the court to go a step further than the
usual order of costs between attorney and client, in order
to ensure
that the successful party is relieved of the burden of paying all the
reasonable costs of litigation. The court cited
with approval the
matter of
Nel v Waterberg Landbouwers Ko-operatiewe Vereeniging
1946 AD 597
at 607
, where Tindall JA said:
“
The
true explanation of awards of attorney and client costs not expressly
authorised by statute seems to be that, by reason of special
considerations arising either from the circumstances which give rise
to the action or from the conduct of the losing party, the
court in a
particular case considers it just, by means of such an order, to
ensure more effectually than it can do by means of
a judgment for
party and party costs that the successful party will not be out of
pocket in respect of the expense caused to him
by the litigation.
Theoretically, a party and party bill taxed in accordance with the
tariff will be reasonably sufficient for
that purpose. But in fact a
party may have incurred expense which is reasonably necessary but is
not chargeable in the party and
party bill. Therefore in a particular
case the Court will try to ensure, as far as it can, that the
successful party is recouped.
I say “as far as it can”
because there may be a considerable difference between the amount of
the attorney and client
bill which a successful party is bound to pay
his own attorney and the amount of an attorney and client bill which
has been taxed
against the losing party”
[
See also
Friederich
Kling GmbH v Continental Jewellery Manufacturers
1995 (4) SA 966
(C),
where the court cited with approval the cases of Alluvial Creek and
Nel v Waterberg above]
[12] Uniform Rule 10(3) provides for various
circumstances under which different or separate defendants may be
joined in
one action. The joinder of the first defendant was not an
issue and was raised only in relation to costs, the argument, in
essence,
being that the 2
nd
defendant was not joined to
the proceedings by the 1
st
defendant, who sought no
indemnification for or a contribution to his costs from the 2
nd
defendant. There was no
lis
between him and the second
defendant and the latter should not be held liable for his costs. The
plaintiff, who withdrew the action
against him should be liable for
payment of the first defendant’s costs. I will refer further to
this aspect later in this
judgment.
[13] The matters of
Rabinowitz and
Another NNO v Ned-Equity Insurance Company Ltd and Another 1980(3) SA
415 (W),
and
Body Corporate of Dumbarton Oaks v Faiga 1999(1)
SA 975 (SCA),
dealt with the payment of the costs of a successful
defendant by an unsuccessful defendant. In
Rabinowitz
, the
plaintiff sued the two defendants for damages arising out of the
death of her husband in a glider accident. The action against
the
first defendant was based on a life insurance policy and against the
second defendant in terms of an aviation accident policy.
The court
also dealt with the issue of misjoinder of the second defendant and
whether it impacted on the costs order to be made.
At the end of the
plaintiff’s case, an order for absolution from the instance in
favour of the second defendant was refused,
on the basis that the
first defendant may well prove its case that the second defendant
was, in fact, liable. In the final analysis,
having found the joinder
of the second defendant by the plaintiff to be reasonable, the court
held that the first defendant had
failed to disprove the plaintiff’s
prima facie
case against it. The consequence was that the
second defendant was kept in the trial unnecessarily, and justice
demanded that the
first defendant should pay the costs of the second
defendant unnecessarily incurred by it.
[14] In
Dumbarton Oaks
, the plaintiff
fell out of a lift and suffered injuries as a result of tripping in
the lift which did not stop level with the floor
on which she
disembarked from the lift. She sued the Body Corporate and the
company who maintained the lifts in that building for
her damages.
The appeal court rejected the basis on which the trial court found in
favour of the plaintiff. The trial court also
ordered absolution from
the instance against the second defendant and directed the first
defendant to pay half the costs of the
second defendant. The appeal
court found that on a substantial issue, the plaintiff had failed to
prove her case against both defendants.
While the court has a
discretion to make the costs order that the trial court did, this
would typically be where the unsuccessful
defendant makes common
cause with the plaintiff to pin the blame on the defendant who was
eventually successful. The court found
that such a situation did not
prevail in the Dumbarton Oaks case. To the extent that the first
defendant made common cause with
the second defendant, it was
successful. The court held that there was no basis to order a party
(in this case the first defendant),
which was successful on an issue,
to help the unsuccessful party (the plaintiff) pay the costs of
another successful party (the
second defendant). The court cited,
with approval, the approach in Rabinowitz with regard to the costs of
the successful defendant
being paid by the unsuccessful party.
PLAINTIFF’S ARGUMENT FOR ATTORNEY AND OWN
CLIENT
COSTS
[15] The plaintiff seeks an order against
the second defendant for payment of her reasonable attorney and own
client
costs of the action on the High Court scale from the date of
filing of its first plea on 8 May 2015, such costs to include the
costs related to securing experts witnesses and all other related
costs. The plaintiff also seeks an order that the second defendant
pay the first defendant’s reasonable attorney and own client
costs on the High Court scale, together with the same attendant
costs
as she seeks on her own behalf.
[16] The plaintiff bases her claim for
attorney and own client costs largely on the manner in which the
second defendant
approached and conducted the litigation in this
matter. Mr De Waal asserted that although the intention of the
second defendant
may not have been vexatious, the effect of its
conduct was. He raised several grounds to indicate that the court
should deviate
from the general rule that costs follow the result and
that such costs are usually awarded on a party and party scale. I
will tabulate
a few of those grounds and refer to others, where
necessary, later in this judgment. He asserted that Uniform Rule
10(4)(b)(ii)
expressly provides that where a defendant has been
reasonably and correctly joined, the unsuccessful defendant,
depending on the
circumstances of the case, may have to bear the
costs of the successful defendant. As I indicated earlier the second
defendant
raised no dispute regarding the reasonableness or
correctness of the joinder of the first defendant in the action, and
I can find
no reason to hold otherwise. The joinder of the first
defendant, for this matter, will be dealt with in relation to the
issue of
who should bear his costs.
[17] The plaintiff asserted that the second
defendant was not honest and sincere in its defence. To this end the
court’s
attention was drawn to the second defendant’s
first plea, which was served on 8 May 2015. The second defendant’s
defence
as contained therein was that its nursing staff assessed the
plaintiff’s motor and sensory functions every two hours as
prescribed
by the first defendant. It emerged from the evidence and
records relating to the post-operative care of the plaintiff, kept by
the second defendant’s nursing staff that no sensory
assessments were done, and the first defendant did not prescribe any
particular protocol regarding the plaintiff’s post-operative
care. The second defendant also alleged that the plaintiff’s
complaints were raised at 1h25 on 30 June 2011, whereas there are
recordals of complaints and weakness in her legs on four occasions
on
29 June 2011. It also emerged that the observations and findings of
the nursing staff were not reported to the first defendant
until 1h25
on 30 June 2011, when the plaintiff complained of weakness in her
legs and excessive pain. The second defendant alleged
that the
complaints of the plaintiff were reported to the first defendant,
immediately upon her making them.
[18] The second defendant amended its plea
in September 2017, and its defence was tempered somewhat to indicate
that
the nursing staff followed a care and treatment programme
prescribed by the first defendant. During cross-examination of the
first
defendant by the second defendant, it was, however, put to him
that he prescribed no treatment and care programme. The allegation
was also made in the plea that the nursing staff reported the
developing symptoms of the plaintiff timeously to the first
defendant,
after observing such. Their notes and records reflect that
the call to the first defendant was in reaction to the plaintiff’s
complaints. The second defendant, so the plaintiff argues, based both
its pleas on untruths and allowed room to adjust its version
as the
trial proceeded. The plaintiff pointed out that shortly after the
incident in 2011, the nursing staff was unable to give
the first
defendant an explanation for the events of 29 June 2011, which lead
to the second operation that was necessary to evacuate
the haematoma
that had formed at the site of the operation performed on the
plaintiff the previous afternoon. In spite of this,
the second
defendant proceeded to defend the matter, putting the plaintiff and
the first defendant to great irrecoverable expense.
[19] The parties held a pre-trial conference
on 14 August 2018. The pertinent questions, for current purposes,
asked
of the second defendant were whether it admits that its nursing
staff were obliged to monitor motor and sensory functions in the
plaintiff’s legs. The second defendant admitted the obligation
to observe motor function, and avoided answering the query
relating
to the obligation in respect of the sensory function. The second
defendant also admitted that the nursing staff was aware
of the mild
weakness in both the plaintiff’s legs on the four occasions
recorded on 29 June 2011. The second defendant further
avoided
answering whether the first defendant was informed of such weakness
prior to the call made to him at 1h25 on 30 June 2011.
The second
defendant also refused to or avoided answering the question whether
it admits the correctness of its nursing records
and notes.
[20] The plaintiff’s testimony,
corroborated by that of her son, accorded with the notes and records
of the second
defendant’s nursing staff. It was confirmed by
the first defendant, and Drs Liebenberg and Du Plessis that there was
a high
probability that the plaintiff’s complaints were made on
29 June 2011 and not 30 June 2011, as the second defendant attempted
to suggest in denying the plaintiff’s version.
[21] The plaintiff asserted that the second
defendant made up its version as the case progressed. There was a
noticeable
absence of its direct version being put to the plaintiff’s
witnesses. The attempt to convey that the plaintiff’s
complaints
were made on 30 June 2011, as opposed to 29 June 2011 did
not accord with its own records. The experts also relied on those
records
in compiling their expert summaries and joint minutes.
Furthermore, the second defendant attempted to put forward the
version,
very late in the trial, that the weakness in the plaintiff’s
legs, as recorded by the nursing staff at 20h00 on 29 June 2011
was
tantamount to a normal neurological assessment. This was not raised
with any of the experts, who all opined that the change
in
plaintiff’s condition from normal to weakness in the legs at
20h00 was after the assessment by the first defendant at
19h00 and
should have been reported to the first defendant (which was not
done). If this was the second defendant’s version
from the
outset, it ought to have been raised earlier in the trial. This is a
further indication of the fabrication of the second
defendant’s
version.
[22] The plaintiff revealed that it made
three formal attempts to settle the matter by making secret Common
Law offers
to the second defendant, in order to avoid a costly and
protracted trial The first offer was made on 17 August 2018 (one week
prior
to the commencement of the trial), to the first and second
defendants to each accept 50% liability for the plaintiff’s
proven
or agreed damages, and each to pay 50% of the plaintiff’s
reasonable party and party costs on the High Court scale, which
costs
should include costs related to the employment of senior counsel and
securing expert witnesses. The offer invited both defendants
to make
any reasonable counter offer or to engage with the plaintiff in
negotiations on any reasonable alternative basis to settle
the
matter. The first defendant was amenable to the settlement but the
second defendant refused to settle and did not engage the
plaintiff
as requested.
[23] The plaintiff did not mention it in
argument, but the papers contain the secret offer made by the
plaintiff to
the first defendant on 27 August 2018 (2 days after the
trial commenced), to accept liability for so much of the plaintiff’s
damages as the second defendant is found not liable for, limited to a
maximum of 50% thereof, together with a costs order. The
acceptance
of the offer was conditional upon the first defendant agreeing to
testify on behalf of the plaintiff and making available,
Dr JJ Du
Plessis, specialist neurosurgeon, to the plaintiff as an expert
witness. No mention was made of the first defendant’s
reaction
to this offer or whether any agreement was reached between the
plaintiff and the first defendant. What appears clear is
that Dr Du
Plessis was indeed made available to the plaintiff as an expert
witness.
[24] The second offer to the second
defendant was made on 3 September 2018, shortly after the trial was
adjourned on
31 August 2018. The plaintiff proposed that the second
defendant accept 100% liability for the plaintiff’s damages
together
with liability to pay 100% of the plaintiff’s party
and party costs, on the High Court scale, including the costs as
contained
in the first offer. The plaintiff also proposed that the
second defendant accept liability for 100% of the first defendant’s
party and party costs on the High Court scale, which the court
considers fair in relation to the trial that was partly heard from
28-31 August 2018. This offer also contained an offer to make a
reasonable counter offer or engage the plaintiff in settlement
negotiations. The second defendant refused to accept this offer,
saying it was premature to form a view on the outcome of the trial,
and pointing out the
audi alteram partem
rule. The second
defendant invited the plaintiff put forward an alternative settlement
proposal.
[25] The third secret offer to the second
defendant was made on 12 February 2019, when the trial was well under
way
and the first defendant was due to testify. The plaintiff
proposed that the defendant accept 80% of her damages and her party
and
party costs, together with 50% of the difference between the
party and party and attorney and client costs. Alternatively the
second
defendant accept 80% liability for the plaintiff’s
damages and costs as determined by the court. The second defendant
made
a counter offer of 65% of the damages, which was not acceptable
to the plaintiff.
SECOND DEFENDANT’S COUNTER ARGUMENTS RE: COSTS
[26] The second defendant sets out in its
Heads of Argument various factors which motivated it to accept
liability on
13 February 2019 for the plaintiff’s damages.
These include:
a. The withdrawal, on day 8 of
the trial, of approximately 11 grounds of negligence which the
plaintiff
had alleged against the second defendant;
b. The “unconventional”
step of the plaintiff calling the first defendant’s expert as
her own witness, and the consequent evidence elicited as a result;
c. The withdrawal by the
plaintiff, on day 8 of the trial, of the bulk of the grounds of
negligence
alleged against the first defendant;
d. The service on the
defendants by the plaintiff of an extensive
Notice of Intention to Amend (its Particulars of Claim),
introducing a further ten grounds of
negligence
against the first defendant, which imputed negligence
against the second defendant. [The Notice was, however, not filed and
the
amendment was not formally sought].
e. The first defendant conceded
every proposition put to him by
counsel for the plaintiff in cross-examination, and
placed the blame for what happened (to the plaintiff) on the nurses
employed
by the second defendant, leaving the second defendant to
defend nurses not only against the allegations levelled against them
by
the plaintiff but also by the first defendant;
f. The effect of this is the probability
that the court would ultimately favour the corroborated versions of
the plaintiff
and the first defendant over that of the nurses;
g. The real risk of not
completing the evidence in the allotted time, leading to a further
postponement
of the matter.
[27] Mr Bezuidenhout reiterated that the
court should depart from the norm that costs are usually awarded on a
party
and party scale, only in exceptional circumstances, which are
absent in this case, and asserted that this is an argument on costs
and not on merits. He further asserted that it was not open to the
plaintiff to have made the secret offers, as the Uniform Rules
of
Court do not provide a mechanism for the plaintiff to make an offer
to settle her case. Mr De Waal pointed out during his address
that
the common law allows for the making of such an offer and cited the
English case of
Calderbank v Calderbank
[1975] 3 All ER 333
(CA)
(Calderbank) as the origin in practice of making such offers. Mr
Bezuidenhout conceded this. In Calderbank, the court said that
in
cases which are not covered by the rules of court permitting secret
offers, it saw no reason, in principle, why a litigant should
not be
allowed to make a settlement offer “without prejudice save as
to costs”, and to rely on such an offer in support
of the costs
order he seeks, after judgment has been delivered. Calderbank was
approved and followed in the English case of
Cutts v Head
[1983] EWCA Civ 8
;
[1984] 1
All ER 597
(CA
), as well as by courts in other Commonwealth
countries such as Canada, New Zealand and Australia, where it was
accepted that a
Calderbank offer can be made by a plaintiff.
Both
counsel referred to the case of
AD and Another
v MEC for Health and Social Development, Western Cape 2017(5) SA 134
(WCC)
(the AD case), in which the Calderbank
case was approved. Mr Bezuidenhout contended that important
requirements set out in Calderbank
were not met by the plaintiff in
her secret offers. I shall return to this aspect later.
[28] Mr Bezuidenhout argued that the second
defendant was entitled to hear what the first respondent’s
evidence
would be and, taking into consideration the
audi alteram
partem
principle, it should not be vilified for continuing with
the trial to the point that it did. The defence of the second
defendant
was not unreasonable, and it had the right to pursue its
case. He dealt extensively with the assertions and allegations in the
plaintiff’s heads of argument, responding to each point raised
by the plaintiff. I will deal with these, if necessary, in
the course
of the evaluation of the matter.
EVALUATION
[29] While this court’s task is to
determine an equitable costs order, that exercise must, of necessity,
involve
traversing the history of the matter as far as may be
necessary, the conduct of the parties and the merits of the matter,
to the
extent necessary. I am uncertain what Mr Bezuidenhout intended
to convey by his remark that “we are dealing with costs and
not
merits”, which was not explained further. If he intended to say
that the merits could not or should not be considered,
then that is
not entirely correct.
[30] All the plaintiff’s hospital
records would have been in the second defendant’s possession
when it filed
its plea in May 2017, and it would have had to consult
with the nursing staff involved in the post-operative care of the
plaintiff
before filing the original plea and prior to amending its
plea in September 2017. The amendment to the plea in September 2017
presents
a different picture regarding the manner in which the
plaintiff’s complaints and condition came to be reported to the
first
defendant, to that in the original plea. By the time the
pre-trial conference was held on 14 August 2018, the parties must
have been fully aware of what their respective cases were (bearing in
mind that this was approximately two weeks before the trial
commenced), and would have appraised their legal representatives
accordingly. It is difficult, therefore, to view the failure on
the
part of the second defendant to answer pertinent questions posed by
the plaintiff, in a positive light. It was well within
the knowledge
of the second to have answered the questions relating to sensory
observations in respect of the plaintiff, as the
hospital records
would have indicated whether or not this was done. As it turned out,
the evidence revealed that sensory observations
were not, in fact,
done. Similarly the reluctance of or refusal by the second
defendant to admit the correctness of its own
records is telling.
[31] Had the second defendant adopted a
candid approach, with a genuine desire to resolve the matter
expeditiously or
to curtail issues (as Mr Bezuidenhout asserted in
argument), then the questions referred to would have been answered
appropriately.
When regard is had to the general consensus
among the expert neurosurgeons that admission of a patient with
spinal surgery to an
Neurological Intensive Care Unit (NICU), would
be primarily to monitor the neurological status of the patient with
the aim of preventing
neurological complications, the significance of
the plaintiff’s question regarding sensory observations becomes
obvious.
In the joint minutes of the neurological experts as well as
the nursing experts they agreed that the post-operative nursing care
in respect of the plaintiff was unsatisfactory.
[32] In my view, the second defendant would
have had knowledge very early in the matter that sensory observations
were
not done, indicating to it that the care of the plaintiff fell
far short of the required standard by nursing staff in a Neurological
ICU, and its attempt to side-step this crucial aspect is regrettable.
In spite of this knowledge, it pushed on with its defence
of the
matter, forcing the plaintiff and first defendant to proceed with the
trial. Even if the second defendant were to argue
that it had been
misled by its nursing staff, the reasoning and findings in the Phase
Electric case
supra
, are applicable in this case. The second
defendant’s continuance with the trial on the reliance of wrong
information will
not avail it as such conduct would be regarded as
vexatious, having caused the plaintiff and first defendant to be put
through
unnecessary trouble and cost.
[33] Although the plaintiff’s
witnesses were extensively cross-examined by the second defendant,
its version was
not directly put to the witnesses. The manner in
which the cross-examination was conducted was an attempt to show that
the plaintiff’s
version, as narrated by her and her witnesses
was improbable, rather than put its own version to the witnesses and
thus expose
that version to the court (which it was expected to do).
Even at the end of the plaintiff’s case, there was uncertainty
as
to what exactly the second defendant’s version was. By
contrast, the plaintiff embarked on a comprehensive opening address,
from which her case and her version were very clear. The first
defendant indicated that his defence was set out in the papers,
and
this was borne out by the cross-examination of the plaintiff’s
witnesses. Even at that stage the stance of the second
defendant was
that the issues it disputes will emerge from its cross examination
“
and if and when we enter into the
defendant’s case”.
This attitude
typified the approach of the second defendant, throughout the trial,
causing the plaintiff and the first defendant
to continue with the
trial, as there was no clarity about the second defendant’s
case. This caused the trial to be drawn
out quite unnecessarily. An
example is the second defendant’s denial from the outset that
plaintiff suffered CES, and it
persisted with this denial up to the
point when it conceded liability. The cross-examination of the
witnesses by the second defendant
dealt almost exclusively with the
events of the 29 June 2011 and the assessments by the nursing staff
during that evening up to
the early hours of 30 June 2011, when the
second operation had to be performed to evacuate the haematoma.
[34] This resulted in the plaintiff’s
leading evidence extensively on the fact that the plaintiff did
indeed suffer
CES as a result of post-operative care, rather than
focusing the evidence on the events of 29-30 June 2011. A further
instance
of the second defendant’s ambivalent approach to this
matter, which not only caused uncertainty but contributed to the
protraction
of the trial, is the difference in the original plea and
the amended plea, regarding the post-operative treatment plan and
care
implemented by its nursing staff. The initial version was that
the first defendant prescribed two-hourly observations, the amended
version was that a treatment plan prescribed by the first defendant
was followed, and ultimately it was put to the first defendant
that
he prescribed no plan at all. The plaintiff had no option but to
proceed with the trial until it heard the first defendant’s
version, before it withdrew the action against him. The withdrawal of
the action against the first defendant came after he was
cross-examined by the second defendant, from which the latter’s
changed version regarding the care and treatment plan for
the
plaintiff became apparent. The first defendant, likewise, was obliged
to testify.
[35] I turn now to deal briefly with the
reasons listed by the second defendant for its concession of
liability on 13
February 2019, as well as its submission regarding
the Calderbank offers made by the plaintiff. The second defendant was
no doubt
placed in a difficult position when the plaintiff withdrew
the action against the first defendant, in that the withdrawal
metaphorically
pushed the second defendant into a corner, with its
back to the wall and with no room to manoeuvre. The second defendant
can hardly
complain if the plaintiff, who was put to considerable
time and expense to proceed with the trial, adopted measures
(astutely so)
to counter the conduct of the second defendant.
[36] In my view there is no merit in the
submission that the “unusual” step that the plaintiff
took of calling
Dr Du Plessis (the first defendant’s expert) as
her witness, was a factor which could have motivated the second
defendant
to concede liability, nor could the evidence of the first
defendant, who made several concessions in favour of the plaintiff.
The
first defendant’s version was clear from the time he filed
his plea and, throughout the trial, from his cross-examination
of the
plaintiff’s witnesses. In any event, if the second defendant’s
intention in raising this aspect is to suggest
that the first
defendant’s evidence is not credible because of the concessions
made, this was never put to him by the second
defendant, in order for
him to explain or to defend his credibility. The court need pay no
further heed to that ground. Dr Du Plessis’
views and
particularly his criticism of the nursing staff were abundantly clear
from his expert summary and from the joint minute
of the expert
neurosurgeons. His evidence could not have come as a surprise. An
expert witness, in any event, is an independent
witness called for
the court’s benefit, so that whichever party calls him does not
alter his evidence or impact upon the
veracity thereof. Mr De Waal
was candid about the plaintiff’s intention in calling Dr Du
Plessis as her witness, namely that
it was aimed at bringing maximum
pressure to bear on the second defendant.
[37] With regard to the plaintiff’s
withdrawing several grounds of negligence against the second
defendant, this
was done before the secret offer made by the
plaintiff on 12 February 2019. It is also noteworthy that the grounds
of negligence
that were withdrawn related to the lack of training and
competence of the second defendant’s nursing staff. This was
done
to curtail proceedings and to assist the second defendant so
that evidence regarding the qualifications and competence of its
nursing
staff did not have to led. I am of the view that this is
hardly a ground that can be regarded as motivation for the second
defendant’s
capitulation and acceptance of liability. The
withdrawal of certain grounds of negligence by the plaintiff against
the first defendant
and the proposed amendment of the plaintiff’s
particulars of claim, the latter of which never saw the light of day,
are completely
without merit and need not detain us further. I also
find no merit in the submission that the second defendant was
motivated to
accept liability in order to avoid a further
postponement of the matter. This simply does not ring true.
[38] With regard to the Calderbank offers
made by the plaintiff, the second defendant asserts that such offers
cannot
be made at the stage of hearing the merits of a matter but
only at quantum stage, as was done in the AD case supra. It also
asserts
that those offers are not valid because certain requirements
(as set out in the Ad case) were not met by the plaintiff in this
case. As correctly pointed out by Mr De Waal, the court in the AD
case was referring to factors which are considered in Commonwealth
cases. The court in that matter undertook a comprehensive examination
and analysis of the Calderbank case, its application in other
English
cases and the position in other Commonwealth jurisdictions. It also
examined the English law regarding “without prejudice”
communications and the effect thereof. For clarity in respect of Mr
Bezuidenhout’s objections regarding the plaintiff’s
non-compliance with the requirements set out in Calderbank, it may be
useful to quote paragraph 61 of the AD judgment:
“
[61]
As to the effect of a Calderbank offer on costs, the Commonwealth
cases emphasise that a plaintiff who has made such an offer
is not
entitled to attorney/client costs merely because he made a secret
offer which was less than what the court awarded. The
court must
consider whether the defendant behaved unreasonably, and thus
put the plaintiff to unnecessary expense, by not
accepting the offer
or making a reasonable counter-offer. Factors mentioned in the
Commonwealth
cases
are whether the defendant has engaged reasonably in attempting to
settle; whether the plaintiff was offering a fair discount based
on a
realistic assessment of the case rather than holding out for the
best conceivable outcome; whether the plaintiff allowed
the defendant
a reasonable time to consider the offer; the extent of the difference
between the amount of the offer and the amount
of the award; and the
nature of the proceedings and resources of the litigants.”
(my
underlining)
[39] In paragraph [43], the court had this
to say:
“
[43]
As I have said, in England and other Commonwealth jurisdictions it
has been held that the privilege attaching to without prejudice
communications does not bar the production of so-called Calderbank
letters in relation to costs. In order to be admissible for
that
purpose, the offer must explicitly state that it is made without
prejudice 'except in relation to costs' (
or
words to similar effect
)
.
In
Cutts
the
court drew a distinction between communications which are
unqualifiedly without prejudice and those which are without
prejudice
'except in relation to costs'. The rule that without prejudice
communications are inadmissible was said to be based partly
on public
policy and partly on the agreement or understanding conveyed by the
use of the phrase 'without prejudice'. The considerations
of
public policy largely fall away once the substantive issues between
the parties have been determined. The inadmissibility of
without
prejudice communications thereafter rests mainly on the agreement or
understanding conveyed by the words 'without prejudice'.
If these
words are expressly qualified by the phrase 'except in relation to
costs', there are no reasons of policy to treat the
communication as
inadmissible for purposes of determining a just and equitable costs
order. On the contrary, the public policy
of encouraging settlements
would be better served if litigants appreciate the risk of adverse
costs orders if they disregard reasonable
offers of settlement.”
(my
underlining).
[40] The court considered the question
whether our law in respect of without prejudice communications should
permit
the same exception that has been recognised in England and
other Commonwealth jurisdictions. The court’s view was that
“
there
is no reason why our law, based as it is on English law, should not
recognise the same exception as has found favour in England
and other
Commonwealth jurisdictions. The considerations of public policy
in favour of settlements and discouraging costly
litigation are as
compelling now as they ever were.”
The
court also expressed the view that Uniform Rule 34, which permits a
defendant to make a secret tender does, not expressly or
by
implication provide that a secret tender made by a plaintiff outside
the Rules cannot be relied upon when it comes to costs,
The court
ultimately concluded that there is no bar to the acceptance in our
law of the admissibility of Calderbank offers. I am
in agreement with
the views and conclusions of the court in the AD case, which find
application in the present case.
[41] I find therefore,
that the secret offers made by the plaintiff in this matter are
Calderbank offers. In determining
whether they are admissible, I
refer to the underlining in paragraph [40] above, in the extract from
the AD case – “or
words to similar effect”. The
offers made by the plaintiff do not use the specific words, “without
prejudice save for
costs”, but, in my view, words of similar
effect were employed. Each offer was couched in terms from which it
can be inferred
that the offer was without prejudice except for the
costs, in that the second defendant was placed on notice not to
disclose the
offer to the court at any stage before judgment. It is
also clear that the offer in respect of costs was to be disclosed to
the
court after judgment for the purpose of considering an
appropriate costs order. In the circumstances, I find that the offers
made
by the plaintiff are admissible.
[42] The various
attempts by the plaintiff to settle this matter from as early as a
week before the commencement of
the trial in August 2018 are
indicative of the realisation of the enormous cost implications of a
protracted trial and the need
to contain those costs as far as
possible. By contrast, the defendant did not even attempt to engage
with the plaintiff in settlement
negotiations, but rejected the
offers without any further ado. The first respondent was willing to
settle on the basis suggested
in the first secret offer, when the
costs would have been considerably lower than when the second and
third offers were made. The
third offer was made at a time when the
proverbial writing was on the wall for the second defendant, one day
before the second
defendant capitulated. Even then the second
defendant did not seriously engage the plaintiff in settlement
negotiations but made
an unreasonable counter offer which was
unacceptable to the plaintiff. The first defendant was, thereafter,
obliged to testify.
[43] The offer on 12
February 2019 was a fair and reasonable offer where the second
defendant was asked to accept liability
for 80% of the plaintiff’s
damages, together with costs as proposed in the offer, with an
alternative to accept the offer
in respect of liability for the
plaintiff’s damages and a costs order as determined by the
court. The important consideration
in respect of this offer is that
the defendant would have received a 20% reduction in respect of all
heads of damages claimed by
the plaintiff. Given the evidence that
was led up to that point, the second defendant’s refusal to
accept that offer is indicative
of an intransigent and high handed
approach to the litigation in this matter. While the defendant was
entitled to be heard and
to exercise its rights in this regard, its
conduct had the effect of protracting the trial unreasonably and
unduly, and escalating
costs quite considerably. In a situation such
as this, there are bound to be substantial costs which the plaintiff
will have to
pay but which are irrecoverable in a party and party
bill of costs.
[44] In my view the conduct of the second
defendant falls within the extended meaning of ‘vexatious’
(as
articulated in Johannesburg City Council, Hyperchemicals and
Alluvial Creek
supra
), in that it amounted to being vexatious
even if the second defendant had not intended to be. I also hold the
view that what I
have outlined above, makes this is a fitting matter
for the court to award the plaintiff costs on an attorney and client
scale.
The remarks of the court in
Nel v Waterberg
supra,
are directly applicable in this matter and I align myself with
those remarks. The second defendant is a member of the Life
Healthcare
Group (Pty) Ltd, a very large company in the health
services sector, that has great financial muscle and is able to
afford expensive
litigation. The plaintiff is an elderly woman with
limited resources who had to wait approximately four years after she
issued
summons, for her matter to be heard. I also note that the
incident occurred approximately seven years prior to the date when
the
trial commenced. The plaintiff was obliged not only to attend
court with great physical discomfort, but she was also obliged to
testify about intensely personal health problems, which clearly
caused her great embarrassment.
[45] The plaintiff seeks a costs order
against the second defendant on the attorney and client scale from
the date of
filing of its first plea on 8 May 2017. In my view,
although the second defendant would have been aware, at the time of
filing
its plea, that evidence it possessed in order to defend the
matter may have been less than supportive of its case, it was still
entitled to proceed in order to test the plaintiff’s and first
defendant’s case, and itself to be heard. In my view
that
knowledge of its case, coupled with the first secret offer made by
the plaintiff on 17 August 2018, was the tipping point
in respect of
when its liability to pay costs on an attorney and client scale
should be calculated. It was at that stage well within
its
contemplation that the strength of its case was such that it ought to
have entertained the settlement proposals put forward
by the
plaintiff. It is therefore my view that costs on the attorney
and client scale should be granted from 17 August 2018.
The order
foreshadowed is the way the court is able to ensure that, given the
circumstances of the parties and of the case, it
makes a costs order
that is fair, just and equitable.
[46] With regard to the first defendant’s
costs, the remarks made in respect of the second defendant’s
conduct,
vis-á-vis the plaintiff, would also apply to the
first defendant. He was willing to settle the matter at an early
stage
but the refusal by the second defendant to settle forced him to
stay in the trial and continue. I align myself with the approach
in
the Rabinowitz case
supra
. I am of the view that the second
defendant, as the unsuccessful party, who accepted 100% liability
should also pay the costs of
the first defendant. In determining the
scale on which such costs should be awarded, I am of the view that
all the arguments put
forward on behalf of the plaintiff and the
court’s consideration in respect thereof cannot extend to the
first defendant.
Mr De Waal merely asserted that the submissions he
made in respect of a costs order for the plaintiff also apply to the
first defendant.
In my view, such submissions were germane only to
the plaintiff and, save for the first defendant being obliged to
remain in the
trial as a result of the conduct of the second
defendant, I am not persuaded that I should depart from the norm of
granting costs
on the party and party scale in respect of the first
defendant.
[47]
In the circumstances, I make the following order:
47.1 It is declared that the second defendant is
liable for 100% of the proven or agreed damages suffered by the
plaintiff
as a result of the cauda equine syndrome which she
sustained on 29 June 2011 and its
sequelae
based thereon that
the signs and symptoms of an epidural haematoma would have been
reported to and acted upon by Dr Lewis, the
first defendant, at 20h00
on 29 June 2011, which action would have entailed surgical evacuation
of the haematoma;
47.2 The second defendant is ordered to pay the
plaintiff’s party and party costs of the action, on the High
Court scale,
up to and including 16 August 2018 , and from 17 August
2018, the plaintiff’s reasonable attorney and client costs on
the
High Court scale, which costs shall include:
47.2.1 the costs (including the full
day fees) consequent upon the employment of senior counsel for each
day of
trial, including any day on which the matter was stood down,
and including the drafting of heads of argument;
47.2.2 the costs of obtaining
medico-legal reports and any addenda thereto from Dr WA Liebenberg
and Professor
EL Stellenberg (the experts), the costs of verifying
expert summaries, the costs of attending to joint expert meetings,
procuring
the joint minutes of such meetings, and the costs of
preparing for and attending trial;
47.2.3 the costs of preparation for
and attending trial by Dr JJ Du Plessis;
47.2.4 the travelling and
accommodation expenses of the experts and Dr Du Plessis;
47.2.5 the costs of consultations
between the plaintiff’s legal representatives and the experts
in Cape
Town in preparation for trial, including the reasonable
travelling costs occasioned thereby;
47.3 The second defendant is ordered to pay the
first defendant’s party and party costs of the action on the
High Court
scale, such costs to include those aspects mentioned in
paragraphs 48.2.1 to 48.2.5 above, mutatis mutandis, where
applicable;
47.4 Any and all costs ordered to be paid in terms
of this order shall bear interest at the prescribed statutory rate of
10,25%
per annum a tempore morae calculated from the date of affixing
of the Taxing Master’s allocator, or date of agreement in
respect of costs, to date of payment
S. NAIDOO, J
On
behalf of Plaintiff:
Adv. WP De Waal
Instructed
by:
Adams & Adams
Lynnwood Manor
Pretoria
c/o Spangenberg Zietsman & Bloem
WAS Spangenberg
FAL Manor
6 Seventh Street
Arboretum
Bloemfontein
(Ref:WAS/MAT/1647)
On
behalf of the 1
st
Defendant:
Adv. ST Farrell
Instructed
by:
Macrobert Attorneys
Brooklyn, Pretoria
c/o Neuhoff Attorneys
165 St Andrew Street
Bloemfontein
(Ref: MR Neuhoff)
On
behalf of the 2
nd
Defendant: Adv
Bezuidenhout
Instructed
by:
Whalley &Van der Lith Inc
Randburg, Gauteng
c/o Wessels & Smith Inc
1A York Street
Waverley
Bloemfontein
(Ref: Roland Bottin/fn/LIF2/57)