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[2014] ZAWCHC 2
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Heese N.O v Road Accident Fund (2) (A586/2012, WCHC10009/2004) [2014] ZAWCHC 2 (28 January 2014)
THE
HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT)
Appeal
Case No: A586/2012
Trial
Case No: WCHC10009/2004
DATE:
28 JANUARY 2014
In
the matter between:
ADV
AE HEESE N.O. (in her capacity as curator ad litem to ULRICH HANS
PETERS
…
................................................................................................................................................................
APPELLANT
And
ROAD
ACCIDENT
FUND
................................................................................................................
RESPONDENT
Coram: VELDHUIZEN,
ROGERS & SCHIPPERS JJ
Delivered:
28 JANUARY 2014
SUPPLEMENTARY
JUDGMENT
ROGERS
J:
Introduction
[1]
This judgment is supplementary to the judgment we delivered on 23
October 2013. In that judgment the full bench dismissed the
appellant’s appeal against the judgment delivered by Blignault
J on 2 December 2011. I shall use the same abbreviations as
in the
judgment of 23 October 2013.
[2]
The order made on the appeal was as follows:
‘
[a]
Subject to [b] to [d] below, the appeal is dismissed with costs.
[b]
The resultant confirmation of the trial court’s order
dismissing the action with costs is provisional to the limited
extent
that the appellant (the plaintiff in the court below) shall be
entitled, within two weeks of delivery of this judgment,
to file
written submissions as to whether the precise form of order
(including the order as to costs) made by the trial court should
be
varied to account for the fact that after the issue of summons the
respondent (the defendant in the court below) paid or tendered
to pay
certain amounts in respect of general damages and medical expenses.
[c]
If written submissions as aforesaid are filed on behalf the
appellant, the respondent shall be entitled, within one week of
receipt of the appellant’s submissions, to file replying
submissions, whereafter this court shall determine whether any
variation to the trial court’s order should be made.
[d]
If no submissions as aforesaid are filed on behalf of the appellant,
the order in [a] above shall become final.’
[3]
Counsel filed written submissions as contemplated by the above order.
Because there were factual discrepancies in the submissions,
the
court on 14 November 2013 requested clarification. A joint response
from counsel was received on 29 November 2013.
[4]
Two main issues arise from the submissions, namely [a] the extent of
the costs to which the appellant, as the plaintiff in the
court
below, is entitled by virtue of claims on which it succeeded and
which were settled prior to or during the hearing before
Blignault J;
[b] whether Blignault J’s order, in terms whereof the
plaintiff’s claim was not only dismissed but judgment
was
granted in favour of the RAF, should be varied by confining the order
to one dismissing the claim.
Costs
in the court below
[5]
The facts relevant to the issue of costs are as follows.
[6]
The plaintiff, an advocate, was appointed as Peters’ curator ad
litem on 3 June 2003.
[7]
Summons was issued on 13 October 2004. That summons claimed past and
future medical expenses, past and future loss of earnings,
and
general damages.
[8]
The merits were disposed of by an arbitral award in favour of the
plaintiff made on 18 June 2007. By agreement the RAF was ordered
to
pay (i) the plaintiff’s costs to date thereof in the
application for the appointment of the plaintiff as curator ad litem;
(ii) the plaintiff’s costs of suit to date thereof in the
pending action; (iii) the plaintiff’s costs of suit in the
arbitration proceedings.
[9]
On 30 April 2008 the RAF paid the plaintiff R128 911,53 in respect of
past hospital and medical expenses.
[10]
The quantum trial was originally enrolled for hearing on 20 August
2009. On that date the trial was postponed but general damages
were
settled at a figure of R500 000.
[11]
On 15 September 2009 the RAF paid the plaintiff a further amount of
R145 420,52 in respect of past hospital and medical expenses.
[12]
On 22 January 2010, and pursuant to the first of several rule 34A
applications, the RAF paid the plaintiff a further amount
of R900 000
in respect of past hospital and medical expenses. By that date,
therefore, the RAF had paid a total sum of R1 174 332,05
in respect
of past hospital and medical expenses.
[13]
A pre-trial conference was held on 15 February 2010. It was recorded
that by that date the RAF had paid the plaintiff an amount
of R1,2
million in respect of past hospital and medical expenses (the actual
amount, as noted, was R1 174 332,05). This was not
the full amount
claimed by the plaintiff under that head.
[14]
The trial was re-enrolled for hearing on 25 May 2010. The trial was
again postponed. On that date, however, the RAF’s
liability for
future medical expenses was settled by the furnishing of an
undertaking in terms of s 17(4)(a) of the Road Accident
Fund Act 56
of 1996. (The plaintiff’s quantified claim in respect of future
medical expenses was € 2 369 677.)
[15]
There was a second rule 34A application pursuant to which the RAF on
19 October 2010 paid the plaintiff a further amount of
R474 064,80 in
respect of past hospital and medical expenses, bringing the total
payments in respect of those expenses to R1 648
396,85.
[16]
In a third rule 34A application delivered on 9 December 2010 the
plaintiff claimed a further interim payment of R900 000 ‘in
respect of past hospital and medical expenses and/or past loss of
income/earning capacity’. In support of this application
the
plaintiff alleged that there was a balance of R99 722,18 owing in
respect of past hospital and medical expenses. The plaintiff
also
referred to the very large claim for loss of earning capacity and
said that the claimed interim payment of R900 000 was thus
‘extremely
conservative’. De Kroon made a confirmatory affidavit in which
he confirmed the three expert reports which
he had filed to date.
[17]
On 11 February 2011 the third rule 34A application was settled by an
order, taken by agreement, that the RAF would pay a further
amount of
R450 000. That amount was paid by the RAF on 16 February 2011. The
order did not allocate that amount or any specific
portion thereof to
the claim for past medical expenses on the one hand or for loss of
earning capacity on the other.
[18]
Over the period October 2007 to March 2010 the plaintiff procured
expert reports in a range of specialities. These expert reports
were
relevant to the claim for general damages and for past and future
medical expenses.
[19]
The quantum trial commenced on 10 May 2011. By that stage, and as
recorded in a pre-trial minute of 9 May 2011, the only matters
in
issue were (i) the claim in respect of diminution of earning
capacity; (ii) the balance of past medical expenses (namely the
amount of R99 722,18 claimed in the third rule 34A application,
liability for which the RAF had not as yet conceded); (iii) the
claim
for the appointment of a curator bonis for Peters. Blignault J was
advised by counsel on the first day of the trial that
the parties
would endeavour to resolve issues (ii) and (iii) and that the
evidence would thus be confined to issue (i).
[20]
The trial on earning capacity ran for 11 days in May/June 2011 and
for a further 16 days in October/November 2011. On 2 November
2011,
the date on which the plaintiff closed her case, the trial judge was
informed that the RAF had paid in full the plaintiff’s
claim
for past hospital and medical expenses. By that date the RAF had
agreed that R99 722,18 of the total sum of R450 000 paid
on 16
February 2011 be appropriated in settlement of the claim for past
medical expenses, bringing that total to R1 748 119,03.
There was
also agreement between the parties that the balance of the sum of
R450 000, namely R350 277,82, was an interim payment
which would be
deducted from any damages the plaintiff might prove in respect of
loss of earning capacity (the agreement in that
respect was not
disclosed to the trial judge). The judge was told that the
plaintiff’s claim for the appointment of a curator
bonis would
not be determined at the quantum trial.
[21]
In the heads of argument filed on behalf of the plaintiff at the
trial, counsel requested the judge, among other things, to
award the
plaintiff the costs associated with the various medical experts
relevant to general damages and past and future hospital
and medical
expenses.
[22]
In the event, the trial judge on 2 December 2011 rejected the claim
for loss of earning capacity. The plaintiff was ordered
to pay the
RAF’s costs. The judge did not deal with the costs associated
with the settled claims for general damages and
medical expenses.
[23]
The plaintiff has, in the arbitration award, already been awarded her
costs in respect of the merits. I agree with Mr Crowe
that Blignaut J
did not intend to alter this order. In regard to quantum, the
plaintiff succeeded (albeit by settlement) in obtaining
a substantial
award for general damages, a substantial amount in respect of past
medical expenses and a s 17(4)(a) undertaking
in respect of future
medical expenses, the value of which undertaking is likely to be
considerable. In my view, the success achieved
by the plaintiff in
the action justified an award in general of costs to the plaintiff,
save for those costs associated with the
unsuccessful claim for loss
of earning capacity. The costs awarded to the plaintiff should
include the costs of the various experts
whose reports were filed on
matters relevant to general damages and medical expenses. This
includes the actuarial report of Mr
Morris in respect of the
quantification of the claim for future medical expenses. Mr Eia, in
his submissions on behalf of the RAF,
conceded that those expert
costs should be awarded in favour of the plaintiff (the costs in
question were tabulated in para 13
of Mr Crowe’s submissions
for the plaintiff).
[24]
The costs in favour of the plaintiff should also include those of the
sworn translator and interpreter, Ms A Hambrock, except
for her
services relating to the failed claim for loss of past and future
earnings.
[25]
Although the RAF’s liability in respect of past medical
expenses was not finally settled until 2 November 2011, I do
not
consider that this entitles the plaintiff to any portion of the costs
associated with the quantum trial which ran during May/June
2011 and
again during October/November 2011. The judge was told at the
beginning of the quantum trial that the parties would attempt
to
resolve the outstanding matters relating to past medical expenses,
and that is what in due course happened. The amount which
remained in
issue by the beginning of the trial was only R99 722,18. No part of
the quantum trial was devoted to matters concerning
the past medical
expenses.
[26]
It appears from Mr Eia’s submissions that the costs associated
with the various rule 34A applications have been taxed
and paid. It
is thus unnecessary to deal with them in a supplementary order.
[27]
The revised order in regard to the trial proceedings should also
incorporate the parties’ agreement that the claim for
the
appointment of a curator bonis stand over for later determination.
Absolution
or judgment for RAF?
[28]
The trial judge dismissed the plaintiff’s ‘claim’
and granted judgment in favour of the RAF. In context,
the judge may
only have intended his order to relate to the claim for loss of
earning capacity. Be that as it may, Mr Crowe submitted
that the
judge should not have granted judgment in favour of the RAF. He
pointed to passages in the full court’s judgment
indicating
that the plaintiff’s failure on the claim for loss of earning
capacity was attributable to insufficiency of proof.
Since Peters is
under curatorship, Mr Crowe submitted that his claim has not
prescribed and that the proper order would thus be
one of absolution,
since judgment for the RAF would render the matter res judicata.
[29]
In Corbridge v Welch
1892 SC 277
De Villiers CJ (with two other
members of the court concurring), after observing that the concept of
absolution had been extended
from the dismissal of an action at the
end of the plaintiff’s case so as to be a permissible remedy
even if the defendant
has presented evidence, said that it had been
the ‘constant practice’ to grant absolution in cases
where the plaintiff
had not established the facts in support of his
case to the satisfaction of the court. He added the following (at
279):
‘
It
was found convenient to have a form of judgment which would enable
the plaintiff to take fresh proceedings without exposing himself
to a
plea of lis finite. But it has never been understood that a defendant
is bound to accept absolution from the instance if the
evidence given
at the trial is of such a nature as to entitle him to judgment in his
favour. In such a case he would, in my opinion,
be quite entitled to
object to absolution. But the objection should be taken at the time
of judgment. In most cases the defendant
is perfectly satisfied with
absolution, and the judge who grants it would reasonably conclude
that the defendant is satisfied if
no objection is taken.’
[30]
Reported cases where this approach seems to have been followed
(though not with the express reference to Corbridge) include
Damont
NO v Van Zyl
1962 (4) SA 47
(C) at 52F-H and Mills Litho (Pty) Ltd v
Storm Quinan t/a ‘Out of the Blue’
1987 (1) SA 781
(C) at
786G-H. And in Forbes v Golach & Cohen
1917 AD 559
, where the
trial judge’s finding in favour of the plaintiff was overruled
on appeal, Innes CJ said that when at the conclusion
of a case the
trial judge finds himself of opinion that all the witnesses were
honest and were speaking what they believed to be
the truth, the
proper course was to grant absolution from the instance (at 563).
[31]
In Berkowitz v Wilson
1922 OPD 230
De Villiers JP said that unless
the plaintiff makes application for absolution the court is entitled
to assume that he does not
wish to have another opportunity of
bringing an action on the same facts, and the plaintiff cannot then
later complain on appeal
that the court was wrong to have granted
judgment in favour of the defendant (at 231-2). No reference was made
to Corbridge.
[32]
In the present case the plaintiff sought orders in her favour at the
end of the trial. The plaintiff’s counsel did not
address the
form of order which should be granted if the claim failed on its
merits. The RAF’s counsel at the conclusion
of the trial
submitted that the plaintiff had failed to prove on a balance of
probabilities the thesis advanced on behalf of Peters
and that the
plaintiff’s claim for loss of earning capacity should thus ‘be
dismissed with costs’. The plaintiff’s
counsel thus did
not in terms seek absolution nor, on the other hand, did the RAF’s
counsel in terms seek judgment in favour
of the defendant.
[33]
My own experience accords with Corbridge. Contrary to the approach in
Berkowitz, the usual practice is, I think, to dismiss
an action
(meaning, thereby, the granting of absolution) rather than to grant
judgment for the defendant, unless the defendant
specifically seeks
judgment. Even where the defendant seeks judgment, the court might
decide merely to dismiss the action. That
would be a matter of
judicial discretion, having regard to the nature and quality of the
evidence and the possibility that the
plaintiff might succeed in
proving the claim in a second action.
[34]
In the present case there could be no question of dismissing the
‘action’ because the plaintiff in fact succeeded
on
several heads of damages. The ‘claim’ in respect of loss
of earning capacity was (rightly, as the full court has
held)
dismissed, but since the trial judge was not addressed on the form of
order it was not appropriate to go further and grant
judgment on that
claim in favour of the RAF.
[35]
This conclusion does not rest on an acceptance of Mr Crowe’s
submission that Peters’ claim in respect of loss of
earning
capacity has not prescribed and that he (or his curator) could bring
a further action to recover damages in respect of
diminution of
earning capacity. I express no opinion on whether that claim has or
has not prescribed. I wish merely to say that
the permissibility of a
further claim might not depend only on the question of prescription
but also on whether a plaintiff who
has launched an action claiming
several heads of damages arising from a single cause of action and
who has succeeded on some of
the heads of damages but not on others
is entitled, having regard to the once-and-for-all principle, to
bring a second action to
claim damages which could have been
recovered in the first action (see Neethling et al Law of Delict 5th
Ed para 4.7; Van der Walt
& Midgley Principles of Delict 3rd Ed
para 152).
Conclusion
[36]
The conclusions reached above will require the trial judge’s
order to be varied in a manner favourable to the plaintiff.
These
variations to not, in my opinion, constitute substantial success for
the plaintiff as appellant on appeal. The only issue
addressed by the
parties on appeal related to the claim for diminution of earning
capacity. The parties did not in their appeal
heads deal with the
form of order if the appeal on the merits should fail; it was the
full court itself which invited submissions
on this aspect when
delivering the main judgment. In the event, the appropriate form of
order was not particularly contentious,
and the RAF’s
submissions on that aspect did not differ materially from this
court’s conclusions.
[37]
The appropriate revised order on appeal is thus the following:
[a]
Subject to [b], the appeal is dismissed with costs.
[b]
The order made by Blignaut J on 2 December 2011 is set aside and
replaced with the following:
‘
[i]
The plaintiff’s claim in respect of past and future loss of
income and diminution of earning capacity is dismissed with
costs,
such costs to include all those associated with the trial which ran
during May/June and October/November 2011, provided
that the
defendant shall not be entitled to any costs in respect of its expert
witness, Mr D Seaward.
[ii]
The plaintiff having succeeded (by way of settlement) in her claims
for general damages and for past and future hospital and
medical
expenses, the defendant shall pay the plaintiff’s costs of
suit, save for the costs awarded in favour of the defendant
in terms
of [i] above, such costs to include the preparation fees for the
following experts: Dr LM Tucker (neurologist) in respect
of his
reports dated 20 October 2007 and 3 July 2009; Dr JS Sagor
(orthopaedic surgeon) in respect of his report dated 25 June
2009; Ms
Elsa Wakefield (physiotherapist) in respect of her reports dated 19
January 2008 and 25 June 2009; Ms Marion Fourie (occupational
therapist) in respect of her report stated 7 June 2009 and 28
February 2010; Ms Mignon Coetzee (clinical neuro-psychologist) in
respect of her report dated 27 August 2009; Mr E Nunes (architect of
Van Riet & Mansvelt) in respect of his report dated 31
May 2009;
Mr GJ Koen (quantity surveyor) in respect of his reports dated 27
July 2009 and 17 August 2009; and Mr IW Morris (consulting
actuary of
Human & Morris) in respect of his report dated 1 March 2010.
[iii]
The award of costs in favour of the plaintiff, as per [ii] above,
shall also include the costs of the sworn translator and
interpreter,
Ms A Hambrock, but excluding any such services relating to the failed
claim in respect of past and future loss of
income and diminution of
earning capacity.
[iv]
The orders in [i], [ii] and [iii] shall not derogate from the order
for costs made in favour of the plaintiff in the arbitration
award of
18 June 2007 or from any costs orders already made in interlocutory
applications.
[v]
It is recorded that the parties have agreed to postpone the claim for
the appointment of a curator bonis to the patient for
later
determination in an application still to be instituted.’
VELDHUIZEN
J:
[38]
I concur and it is so ordered.
SCHIPPERS
J:
[39]
I concur.
VELDHUIZEN
J
ROGERS
J
SCHIPPERS
J
APPEARANCES
For
Appellant: Adv MA Crowe SC
Instructed
by:
Lowe
& Petersen
Cape
Town
For
Respondent: Adv PC Eia
Instructed
by:
Cliffe
Dekker Hofmeyr Inc
Cape
Town