Van Rooyen v Road Accident Fund

• Judge: Van Der Byl AJ
• Judgment Date: 21 June 2004
• Citation: 2005 JDR 0587 (T)
• Docket Number: 7364/1998
• Hearing Date: 21 June 2004
• Court: Transvaal Provincial Division

Van Der Byl AJ:

[1] This is a review in terms of Rule 48 of a taxation of a bill of costs.

[2] The Applicant was the Plaintiff in an action for damages arising out of injuries sustained in a motor collision.

[3] For the sake of convenience I will in this judgment refer to the parties as they are cited in the action.

[4] On 3 September 1999 Stafford DJP granted an order by consent in favour of

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the Plaintiff against the Defendant.

Apart from the merits, the order provided for payment of the Plaintiff's "taxed party and party costs on the High Court scale, which costs include the costs of the Plaintiffs Pretoria and Port Elizabeth Attorneys, as well as the following:

(i)Senior Counsel's fees;

(ii)the reasonable costs of obtaining all actuarial reports of Mr. G W Jacobson;

(iii)the costs of all medico legal reports furnished to the Defendant, as well as the fees and qualifying fees, if any of;

(iv)the reasonable costs of consultations between Plaintiffs counsel and experts in preparation;"

as well as various other stipulated costs, none of which I have to quote here.

[5] The Plaintiff's bill of costs was taxed and finalised on 29 March 2000 and the allocatur completed and signed on the same day. The Plaintiff was dissatisfied with the taxing master's decision on a considerable number of items and filed a notice of review in terms of Rule 48 on 12 April 2000. The Taxing Master supplied her stated case almost two years later on 18 February 2002 and the Plaintiff made submissions in reply to the stated case on 13 March 2002, whereupon, the Defendant made submissions

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in response to both the stated case and Plaintiff's submissions on 7 May 2002.

[6] I will, notwithstanding these delays, consider this matter as if there were proper compliance with all the applicable time limits as prescribed in the Rules.

[7] There are in all 146 items in dispute, each of which has been fully dealt with in Plaintiffs submissions filed in terms of Rule 48(5)(a).

[8] There are in all 146 items in dispute, each of which has been fully dealt with in Plaintiffs submissions filed in terms of Rule 48(5)(a).

[9] It is well-settled law that in general the discretion of the Taxing Master will not be disturbed unless it is found that he or she did not exercise a proper discretion, for example, by disregarding factors which were proper for him or her to consider or by considering matters which it was improper for him or her to consider, or if he or she has disregarded relevant factors or has had regard to improper factors, or by giving a ruling which the Court can see no reasonable person would have given (see: Wellworths Bazaars Ltd v Chandlers Ltd 1947 4 SA 453 (1), 457 to 458; Groenewald v Selford Motors (Edms) Bpk 1971 (3) SA 677 (C) at 678J-679A). The Courts have also recognized the principle that the Court may interfere in those classes of cases where the Court is able to form as good an opinion as the Taxing Master and, perhaps, even a better opinion (see: Wellworths case, supra, 458).

[10] I think it best to deal with each item in the sequence as they are raised in the

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Plaintiff's notice of review dated 12 April 2000 notwithstanding the peculiar order in which the Plaintiff's attorneys have chosen to set out their reply to the Taxing Master's stated case by dealing at first with certain items out of order before dealing with the rest of the items in the order they are raised in the stated case.

[11] ITEM 19

This item relates to an amount of R75 claimed for the attendance by the attorney on the occasion of the taking of certain photos of the Plaintiff's injuries by a professional photographer.

It is the Plaintiff's contention that it was, bearing in mind the intimate nature of the injuries and the serious consequences thereof, reasonable to have the photos taken and for the attorney to take the Plaintiff to a professional photographer.

In her stated case the Taxing Master states that the item was disallowed because in her submission the attendance by the attorney for this purpose was unnecessary and, bearing in mind that a fee has been allowed in item 22 for the perusal of the photos, resulted in a duplication of costs.

To my mind, it was quite proper and, moreover, necessary for the Plaintiffs attorney to have obtained such evidence in support of his client's claim (see: Van Rooyen v Commercial Union Assurance Co of SA Ltd 1983 2 SA 465 (O), 475E; Fulane v Road Accident Fund 2003 3 SA 461 (W)), but I am unpersuaded that any circumstances have

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been shown which required the attorney to herself attend the taking of the photos in question, and I am accordingly unpersuaded that I should interfere in the Taxing Master's decision.

[12] ITEMS 66, 64 AND 65

These items relate to the procurement of the police docket (item 66), attending to letter from SA Police, Muldersdrift, enclosing the police docket (item 84) and the perusal of statements contained in the docket (item 85).

The Taxing Master disallowed these items on the grounds thereof that these items allegedly constitute an unnecessary duplication of costs since an amount had been allowed in item 39 for a similar function performed by the correspondent attorneys, Rooth and Wessels Attorneys.

This contention does, however, not appear to be correct since in item 39 an amount is claimed for attending to "letter Pretoria correspondent, Rooth & Wessels, dated 9 January 1996with a copy of the criminal case record ...' (and not for the police docket).

It would accordingly appear that there was no duplication of costs and that the Taxing Master accordingly erred in considering an improper factor.

The Taxing Master's decision on these items is accordingly set aside.

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[13] ITEM 86

The Plaintiff claimed a fee for a consultation of an hour with the Plaintiff's daughter who had shortly before qualified as a medical doctor and advised "that Plaintiff cannot cope at work and will need to be seen by a psychiatrist'.

The Taxing Master ruled that a 10 minute telephone call would have sufficed and that an hour consultation was not necessary.

In my view there is no reason to interfere with the decision of the Taxing Master.

[14] ITEM 106

This item concerns a fee claimed for a 30 minute consultation during which Plaintiff "advised that she has been told to have her leg amputated' and advised "that she would like this done in Port Elizabeth to save costs and that we must also arrange for her to see a psychologist'.

The Taxing Master allowed a fee for a 10 minute telephone call since in her view the matter did not require, bearing in mind that the Plaintiff had already seen a psychiatrist, a consultation lasting 30 minutes.

The Taxing Master's assessment seems to me to be fair and I am accordingly unable to interfere with her ruling in this regard.

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[15] ITEM 144

In this item a fee of R400 is claimed in respect of the drawing of the claim form over and above the fee of R200 claimed in item 142 in respect of a consultation to draw a statement to accompany the claim form.

The Taxing Master was of the view that the attorney already had the opportunity to consult on the occasion of the drawing of a statement for purposes of the claim form in respect of which a fee was claimed in item 142.

The claim form could and should have in my view been completed at the same time as the statement was drawn, and I find myself unable to interfere with the Taxing Master's decision.

[16] ITEM 146

This item is no longer in dispute since the Plaintiff now appears to agree with the Taxing Master's ruling, and there is accordingly no reason for to me consider the merits of the original objection.

[17] ITEMS 163 and 164

These two items relate to the costs incurred in preparing and forwarding a fax to Defendant furnishing Plaintiff's banking details.

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It is the Taxing Master's contention that the costs claimed under these items constitute a duplication of the costs claimed under items 161 and 162.

It is explained by the Plaintiff that the fax referred to in these items was prepared and forwarded, in response to the telephonic conversation with Defendant on 25 June 1997 referred to in items 161 and 162 since the Defendant had agreed, the merits having been conceded, to make an interim payment for purposes of which the banking details of the Plaintiff were to be forwarded to the Defendant by way of the fax referred to in these items.

It would seem to me that the Plaintiff is correct that the amounts claimed in items 163 and 164, on the one hand, and items 161 and 162, on the other hand, are not amounts which have been duplicated.

In my view the Taxing Master should have allowed the amounts claimed in these two items, and the Plaintiff's objection is accordingly upheld and the Taxing Master's ruling is set aside.

[18] ITEM 188

This item relates to an hour consultation with Plaintiff on 2 September 1997 on the occasion of which she advised "that she cannot continue teaching", to arrange for her to see Dr Holmes again and to take instructions to institute action.

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The Taxing Master allowed a 30 minute consultation on the grounds thereof that summons was issued only five months later and various other consultations had been held during that period of five months.

It does not seem to me to be unreasonable to allow a 30 minute consultation during that early and apparently preliminary stage of this matter, and I am accordingly not prepared to interfere with the Taxing Master's decision.

[19] ITEM 196

This item relates to "(a)ttending consultation at the Collegiate Girls High School, with Counsel, the principal, Plaintiffs immediate superior and bursar" which consultation lasted 1% hour.

It appears that the Taxing...