Big Quantum Does Not = Senior Counsel – IAC Newsletter 39/2014, (March 2014)

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Dear Reader,

Welcome to the 39th edition of Independent Actuaries & Consultant’s (IAC’s) MVA newsletter.

Big Quantum does not = Senior Counsel – Smit v RAF, Eastern Cape High Court (PE), case no: 448/2013

Both the merits of the plaintiff’s claim and the quantum of his damages had been agreed between the parties. The court ordered that the defendant pay the plaintiff the sum of R3,050,612-16 (Three Million Fifty Thousand Six Hundred and Twelve Rand and Sixteen Cents) in full and final settlement of his damages.

The parties were unable to reach agreement in respect of the costs order to be made. The defendant tendered the plaintiff’s costs including the qualifying expenses of expert witnesses on a party and party scale. The plaintiff seeked an order that the defendant pay the costs of two counsel. This was the only issue in dispute.

Summons was originally issued in February 2013 claiming the amount of R6 082 652.00 and the Particulars of Claim were prepared and signed by junior counsel. A subsequent amendment inflated the figures, notably those in respect of loss of earning capacity and general damages, so as to claim the amount of R8 144 578.52.

On 1 October 2013 the plaintiff’s attorney of record instructed a second counsel to lead the junior counsel who had drafted the pleadings and to conduct the trial.

The bulk of the claim related to loss of earning capacity and general damages.

The court noted that generally, the computation and proof of a claim for loss of earning capacity does usually involve complex issues of fact and law. Where the claim is large, then it is usually a reasonable and prudent precaution for a plaintiff to engage the services of two counsel.

The accident in the present case, however, occurred on 8 October 2008 after the amendment act came into force that has the effect of “capping” loss of income claims.

The plaintiff’s claim in respect of his actual loss of earning capacity amounted to R7 025 477,00 as calculated by an actuary. His loss of earning capacity computed and capped in accordance with section 17(4)(c) of the Act as calculated by the same actuary, amounted to R2 583 000,00.

The court held that where it is a foregone conclusion that the plaintiff’s actual loss of earning capacity will far exceed the limit set by section17 of the Act, the calculation and proof of the plaintiff’s entitlement will not involve any significant factual or legal difficulty.

The court further held that the assessment of general damages is dependent primarily on the lay evidence of the plaintiff himself and, though not entirely simple, was not so complex as to justify the employment of two counsel.

In the courts view one counsel of sufficient seniority and experience could have properly handled the matter without any significant difficulty.

Now for some inspiration  –

“That old law about ‘an eye for an  eye’ leaves everybody blind. The time is always right to do the right thing.”

Martin Luther King Jr.

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