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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

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