Van Reenen v Lewis
| Jurisdiction | South Africa |
| Judge | Naidoo J |
| Judgment Date | 14 May 2019 |
| Citation | 2019 JDR 1150 (FB) |
| Docket Number | 2302/2014 |
| Court | Free State Division, Bloemfontein |
Naidoo J:
INTRODUCTION
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).
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.
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BACKGROUND
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.
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 11th 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.
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.
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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 14th and 15th February 2019.
ISSUES
The issues that this court is tasked with determining are
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.
The appropriate scale of costs in respect of the first defendant and who is to pay these costs.
THE LAW
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
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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.
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
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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".
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".
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
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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".
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...
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