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[2019] ZAWCHC 52
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De Vries Shields Chiat Inc v M B (A184/17) [2019] ZAWCHC 52 (30 April 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: A184/17
In the matter between:
DE
VRIES SHIELDS CHIAT
INC
Appellant
and
M
B
Respondent
JUDGMENT: TUESDAY 30 APRIL 2019
DESAI,
J:
1.
The Appellant is a law firm. It apparently specialises in personal
injury cases. The Respondent is a former client who successfully
sued
the Appellant for its alleged failure to exercise due care and
diligence in prosecuting his claims.
2.
The matter comes before us with the leave of the Trial Court. The
ambit of the leave granted is restricted as follows:
“
Leave to Appeal is granted …
on the question as to whether the Court had erred in the analysis of
the Respondent’s
pleadings in respect of the pleaded cause of
action.
”
In
effect, we are called upon to decide whether the mandate as pleaded
by the Respondent encompassed the breach, if such, found
by the Court
as having been committed or, in other words, whether the pleaded case
alleged the duty that was found to have been
breached.
3.
The law in this regard is fairly settled. The Supreme Court of Appeal
in
Minister of Safety and Security v Slabbert
[2010] 2 All SA 474
(SCA) at para [11]
held as follows:
“
A party has a duty to allege
in the pleadings the material facts upon which it relies. It is
impermissible for a plaintiff to plead
a particular case and seek to
establish a different case at a trial. It is equally not permissible
for the Trial Court to have
recourse to issues falling outside the
pleadings when deciding the case.
”
This
dictum has been cited with approval by the Constitutional Court in
Molusi v Voges
2016 (3) SA 370
(CC) at para [28]
.
4.
In this instance it is the Appellant’s case that no actionable
breach or negligence relevant to the Respondent’s
cause of
action
as pleaded
had been established. The Respondent denies
this allegation. It is his case that the Appellant had breached its
mandate in that
… :
i) It failed to do whatever was
reasonably necessary to recover damages on behalf of the Respondent;
and
ii) Appellant failed to exercise due
care and diligence in prosecuting his claim against the RAF; and
iii) In failing to provide the
Respondent with legal advice in respect of the said claim
as
pleaded on his behalf.
5.
These differing points of view warrant a closer examination of the
pleadings and, more especially, the actual findings of the
Trial
Court and whether it erred in its analysis of Respondent’s
pleadings and its pleaded cause of action.
6.
The injuries which the Respondent sustained occurred in or about
August 2001 when the vehicle in which he was a passenger collided
with another vehicle. The Respondent was then a teenager. It appears
that as a result of the said injuries he received medical
treatment,
was disabled, and suffered pain and loss of amenities of life. The
Appellant was subsequently instructed to recover
the damages to which
the Respondent was entitled in law.
7.
Some five years later, that is in or about February 2006, the
Respondent’s claim was settled in an amount of R30000.00
being
for general damages and R217,63 in respect of medical expenses. No
undertaking was obtained in respect of future medical
expenses.
8.
It is this settlement with which the Respondent was unhappy and it
eventually led to a protracted trial before
Saldanha, J
.
9.
In the pleadings before the said Court it was alleged that the
Respondent suffered damages due to a breach of its mandate by
the
Appellant who, he says,
inter alia
:
i) failed to exercise due care and
diligence in both prosecuting Respondent’s case and in
furnishing him with legal advice;
and
ii) failed to properly assess the
quantum of his claim; and
iii) neglected to send the Respondent
for certain medico-legal assessments; and
iv) neglected to assess the
Respondent’s need for future medical expenses as well as the
degree of Respondent’s disability.
10.
As
Advocate Schalk Burger SC
who appeared for the
Appellant, correctly pointed out, the mandate to recover
damages was a typical instruction to
an attorney to recover damages
on behalf of a client injured in a motor collision and the alleged
breaches are unexceptional.
11.
When he completed the medical report – the report filed
with the Road Accident Fund –
Dr M Verdoorn
says that
the Respondent was treated with analgesics and referred for
physiotherapy which was to take place over six weeks. His
report is
dated 4 September 2001. The referral to physiotherapy is specifically
pleaded at paragraph 6.1.1 of the Respondent’s
particulars of
claim. However a duty on the Appellant to ensure that this occurred
was not pleaded as an element of the mandate
furnished to the
Appellant, nor was any allegation made in the pleadings that the
failure to ensure that the Respondent attended
physiotherapy as
recommended by Dr Verdoorn constituted a breach of the Appellant’s
mandate.
12.
Unsurprisingly therefore, no reference was made during the
trial to a file note of the Appellant dated 13 September 2001
that
the Respondent’s sister undertook to inform the attorney
concerned ‘
waar haar broer vir fisio gaan’.
(See
Volume 4 page 312). The Respondent was not asked why he did not go
for the physio and, if he could not afford it, why did
he not go to a
provincial hospital for such treatment. He was then a teenager and
would have qualified for such assistance without
any charge. He was
not asked about it because it was not a pleaded issue.
13.
Incidentally, when the attorney was cross-examined about this, her
view was that attorneys do not send people to doctors, others
do it.
During the trial reliance was placed by the Respondent on the
Appellant’s failure to ensure that he was assessed by
a
physiotherapist, and sent for physiotherapy, after the later
recommendation of Dr Sagor on 21 October 2004 that provision should
be made for the cost of physiotherapy. This too was not a pleaded
issue. Further, the evidence in chief of Dr Le Roux (who testified
as
an expert for the Respondent) was that:
“
Wat is die effek dokter van
die feit dat hy nou nie mediese behandeling gekry het nie, weet u?
--- Die problem is indien 'n sagteweefselbesering
van die nek of rug
binne die eerste twee jaar nie voldoende behandeling ontvang nie, is
die kanse baie groter en is dit waarskynlik
dat die simptome
permanent kan wees.
”
(See
Volume 2 page 117).
14.
The two year period referred to by Dr Le Roux ended in August 2003.
It is common cause that the Respondent only complained about
back
problems to the Appellant in March 2004, during a telephone call made
by the attorney to him.
15.
It appears that
Saldanha J
was not completely satisfied with
the evidence of the orthopaedic surgeon
Dr J Sagor
. Unlike
Dr
Verdoorn
who saw the Respondent some ten days after the
collision,
Dr Sagor
saw him some three years later. At that
stage there was no neurological discomfort and the only clinical
finding by
Dr Sagor
was a slight loss of rotation in his neck
which was subjective in nature. He could make no other findings other
than the Respondent’s
subjective complaints. Testifying twelve
years after seeing the Respondent,
Dr Sagor
expressed the view
that the medication and physiotherapy – as the Respondent had
at that stage not received a full gamut
of treatment – could
help clear up these “minor complaints”.
16.
Dr Sagor
did not agree with the Court’s suggestion that
the attorney should have obtained an assessment from a
physiotherapist. He
commented in this regard:
“…
except that it is
not the attorney’s duty with due respect, to send clients for
treatment …
”
Despite
the somewhat sarcastic response from
Advocate R Liddell
, who
appeared on behalf of the Respondent both before us and at the trial,
one could hardly quarrel with
Dr Sagor’s
remark quoted
above.
17.
Dr Sagor
was subjected to a great deal of questioning as to
why he did not refer the Respondent for physiotherapy. It seems that
Saldanha J
was of the view that
Dr Sagor
, the
orthopaedic surgeon who examined the Respondent a number of years
after the collision, had a duty to do so even though he
was not his
patient However the trial court then concludes that it was the
responsibility of the Appellant, that is the attorney,
to advise the
Respondent of the need for him “to obtain the necessary
physiotherapy treatment”.
18.
The Court finds:
“
I must mention though that
Dr Sagor did not entirely impress with his explanation as to why the
Plaintiff was not referred by him
to a State hospital for
physiotherapy. That however, in my view, was the responsibility of
the Plaintiff’s own attorneys
at the time in that they should
have advised him of the need for him to obtain the necessary
physiotherapy treatment in order to
deal with his ongoing pain and
discomfort.
”
(See
Volume 7 at pages 564 – 565).
19.
The above finding was unrelated to the mandate or the alleged
breaches. It was not part of Appellant’s mandate and there
was
no allegation in the pleadings.
20.
Saldanha J
in fact characterises it as the “critical
basis” of the Respondent’s case …
“
The fact that the Defendant
both through Mr Adendorff and Ms Saayman had not advised
Plaintiff to go for physiotherapy as recommended
by both Dr Verdoorn
and their own specialist, Dr Sagor …
…
in
the specific circumstances of this matter (there was) a
responsibility on the part of the Defendant to have informed the
Plaintiff
of the need for him to go for physiotherapy …
”
(See
Volume 7 at page 563).
21.
As
Burger SC
points out, the negligence attributed to the
Appellant – namely, the failure to advise the Respondent of the
need to obtain
the necessary physiotherapy treatment – did not
arise from any duty assumed by the Appellant in terms of any mandate
or alleged
breach of a duty of care or a delictual claim. It is
unrelated to any failure to properly assess Respondent’s claims
and
quite clearly does not amount to a failure to give legal advice.
22.
There is a further leg to the arguments advanced by Burger SC, namely
causation
. In the light of what is said above it is probably
unnecessary to deal with this aspect in any detail.
23.
As already stated, due to the issues raised on the pleadings, certain
significant factual issues were not dealt with during
the trial.
There was no
evidence
as to what
Dr Verdoorn
told the
Respondent in October 2001. Nor was the trial court told what
Respondent would have done if
Dr Verdoorn
indeed advised
him to go for physiotherapy in October 2001. The Respondent did not
go of his own accord for physiotherapy even
when he was in a position
to afford private healthcare. Moreover, other than the testimony of
his own expert, Dr Le Roux, which
did not assist the Respondent, no
evidence was adduced as to what effect the physiotherapy might have
had on his symptoms had the
Respondent followed Dr Verdoorn’s
recommendation.
24.
It seems to me that there is considerable merit in the submission
that no actionable breach or negligence relevant to Respondent’s
cause of action as pleaded has been established.
25.
In the result, the following order is made:
1. The appeal succeeds with costs.
2. The judgment of the
court a
quo
is set aside and replaced with the following:
“
The
claim is dismissed with costs
”.
……………………
DESAI,
J
I
agree
……………………
CLOETE,
J
I
agree
……
.……………………
SALIE-HLOPHE,
J