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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 2007/6369

Reportable: No

Of interest to other judges: No

Revised.

In the matter between

SHICKERLING Z A  NO                                                                                            Plaintiff

And

WOLFF EDWARD                                                                                                Defendant

 

JUDGMENT

Summary: medical malpractice – based on contract alternatively delict ─ whether clinical psychologist incorrectly diagnosed plaintiff with Alzheimer’s disease, advised her of this diagnosis thereby causing her anguish and suffering to the extent that it affected her ability to work and required treatment.

 

VICTOR J:

[1] The plaintiff in this matter is represented by the executor of her estate.  She died during the course of these proceedings from an unrelated cause. The plaintiff has pleaded that the defendant incorrectly diagnosed her as suffering from Alzheimer’s disease and as a result thereof caused her anguish and psychological suffering resulting in her being unable to work. The plaintiff was an in-house financial advisor with ABSA bank and the defendant was a clinical psychologist who treated her.

[2] The plaintiff has pleaded her claim in the amount of R2 240 300 as one arising out of contract, alternatively a claim in delict. The plaintiff was referred to the defendant by her general practitioner Dr Theunissen for clinical psychological services which he rendered. The plaintiff’s contractual claim is based on the defendant’s alleged failure to examine and test her properly and to take into account appropriate factors to diagnose her condition. In relation to the delictual claim it is one based on negligence only in that his care resulted in her being boarded from her employment thus suffering a loss of earnings, discomfort and loss of amenities of life.

[3] As to the contractual claim, the plaintiff avers that on 11 March 1995 and at Johannesburg she and the defendant concluded an oral agreement in terms of which the defendant undertook for reasonable remuneration to examine test, diagnosed and treat her with regard to her psychological condition. She claimed that it was an express, alternatively implied, alternatively tacit term of the contract that the defendant would examine, test, diagnose and treat her with such professional skill, care and diligence and expertise as is reasonable for a clinical psychologist. She further averred that is was within the knowledge and contemplation of the parties that the contract was concluded on this basis and in the event that the defendant would be in breach he would be liable for all damages including consequential damages should she suffer pain, stress, incur future medical, hospital and related expenses as well as suffer a past and future loss of income.

[4] On 15 March 1995 the plaintiff asserted that the defendant incorrectly diagnosed her as having Alzheimer disease and gave directions as to her care. The plaintiff also  recommended to the plaintiff’s then employer, ABSA Bank, that she be boarded ‘Vanweë mediese en sielkundige redes’ because the plaintiff had ‘dementia van ‘n Alzheimer tipe.’   The plaintiff also asserted that as a direct result of the defendant’s conduct, she was boarded by her employer and she continued taking medication that he advised the medical doctor should prescribe for her. She was precluded after being boarded, from taking up any employment.  The evidence showed in breach of that preclusion and in 1998 she took up work at a nail bar albeit on a voluntary basis and this resulted in her losing her employment benefits.

[5] The plaintiff contended that the defendant was negligent in that he failed to properly examine and/or test the plaintiff during the care and he failed to take into account the appropriate factors to diagnose her condition.  He diagnosed the plaintiff as having Alzheimer disease in circumstances where a reasonable clinical psychologist could not and would not have done so. He arranged for the prescription of medication which was unsuitable and not indicated for her condition.

[6] The ex delicto claim really revolves around the same averments but here the allegation is that during 6 January 1995 to about 20 February 1998 she attended and the defendant rendered to her specialist medical and/or psychological treatment.   She contends that he did not take the reasonable steps to satisfy himself that she did indeed have Alzheimer’s disease and he did not exercise the reasonable skill and care as to be reasonably expected from a psychologist. She had an extensive list of detail for her financial claim which amounted then to R2 240 309.  These included past medical expenses, future medical expenses and loss of earnings in the amount of R1 756 721 and an estimate of future loss of earnings and general damages in the sum of R200 000.

[7] During the course of the trial all these figures were amended in that the plaintiff deleted the claim relating to past medical expenses, future medical expenses, past loss of earnings, estimated future loss of earnings and was left only with the damages claim in the sum of R200 000.

[8] Obviously these issues needed to be proved by the plaintiff. In the light of her death before she could testify on the merits, the executor had to largely rely on hearsay evidence. The primary reliance was on a transcript of a record where she testified on a separated issue dealt with before her death. This was the special plea of prescription raised by the defendant.

 

Hearsay evidence

[9] This special plea was adjudicated in a trial by Wepener J who dismissed the special plea. During the course of that hearing the plaintiff testified. The executor sought to have the record of the prescription portion of the trial admitted as to the truth of its contents.  During the course of the trial the plaintiff made the allegation that the defendant had incorrectly diagnosed her as suffering from Alzheimer’s disease.

‘Ek wil u net so vra mevrou, as ek u reg verstaan word daar in 1995 vir u gesê u het Alzheimer’s.  ---  Yes.

Vir hoe lank het u gedink dat dit so is?  ---  Toe ek vir die eerste keer by die Dr Mallison gekom het en hy het vir my gesê in die gesprek wat ons gevoer het, hy kan nie sien dat ek Alzheimer’s het nie, maar dat ons ‘n toets moet aflê.’

[10] It was submitted that this particular piece of evidence was critical to the plaintiff’s case because she was now deceased and this should be admitted as to the truth of its contents without more. The plaintiff relied on s 3 (1) (c) of the Law of Evidence Amendment Act 45 of 1988 (“the Act”). On behalf of the plaintiff it was submitted that in particular having regard to the requirements referred to in s 3(1) (c) (v) of the act, namely her death is the reason why the evidence is not given despite her being the person on whose credibility the probative value such evidence depends It was submitted that in a court of law she had stated that the defendant had told her that she had Alzheimer’s.

[11] I have to take into account that the trial before Wepener J was limited to prescription and did not include the merits. The above evidence was brief and there was meaningful cross-examination on the merits to the extent that I could discern since the merits were not at issue in the special plea. I could not evaluate whether she was credible on that critical point. Obviously in terms of section 3(1) (c) (v) of the act the reason why she could not give evidence follows because she was deceased was an important consideration. It was submitted on behalf of the plaintiff that there would be no prejudice to the defendant in this regard since that allegation had been made during the course of the trial on the special plea.

[12] In Savoi & Others v National Director of Public Prosecutions & Another  2014 (5) SA 317 (CC) Madondo J writing for the court, analysed very carefully the admission of hearsay evidence and its reliability. In particular how properly applied both parties rights had to be weighed. Madondo J referred to the case of S v Ndhlovu 2002 (6) SA 305 (SCA) where Cameron JA, as he then was, referred to the law's aversion to the admission of hearsay because of its general unreliability where he said:

'Not only is hearsay evidence — that is, evidence of a statement by a person other than a witness which is relied on to prove what the statement asserts — not subject to the reliability checks applied to first-hand testimony (which diminishes its substantive value), but its reception exposes the party opposing its proof to the procedural unfairness of not being able to counter effectively inferences that may be drawn from it.'

[13] Because of the facts in this case the evidence could not be subjected to the reliability checks because the plaintiff was deceased and therefore the ensuing prejudice to the defendant was manifest. The question of prejudice to the defendant has to be assessed.

[14] The important and distinguishing feature in this case is that the claim by the plaintiff relates completely to her credibility and the medico legal experts she consulted for this litigation relied entirely her credibility. The trial in relation to the prescription point limited any cross-examination on this aspect i.e whether in fact the defendant had made the allegation to her that she was definitely diagnosed with Alzheimer’s disease and this fact caused the consequential loss. It means that if I were to allow that evidence the defendant would not be in a position to cross-examine on that very point which depends on her credibility. It would leave a court to rely simply on the brief allegation during the special plea hearing where there would be no opportunity to test the plaintiff’s evidence against the expert reports and all the general circumstances surrounding the treatment by the defendant of the plaintiff. If I were to allow this, the defendant’s prejudice would be considerable and the trial might well result in unfairness to the defendant and to an infringement of his constitutional right to a fair trial.

[15] In the result I disallowed the admission of the record in so far as it relates to the truth of the allegation that the defendant misdiagnosed her condition resulting in the devastating effects for her. Thereafter the plaintiff was left to rely on reports of Mr Mallinson a counselling psychologist and other medical experts who had consulted with her. 

Medical Reports

[16] Both parties referred to correspondence between the defendant and the specialists. These are specialists to whom he referred the plaintiff. Several of these doctors did not testify but their reports went in by agreement. There was extensive cross examination of the defendant on these reports.

[17] On 11 March 1995 the defendant wrote to a Dr Theunissen (the plaintiff’s general practitioner) thanking him for referral of the plaintiff as a patient. The defendant stated that she presented with a major depression and panic attacks. He also reported that she could no longer cope at work. He also mentioned to Dr Theunissen that the plaintiff presented with memory and concentration deficits. He also reported that since 6 January 1995 she was treated with intensive psychotherapy and hospitalised three times. She was also on medication for her condition.  She did not respond to the psychotherapy but benefitted from hospitalisation until she had to return to work where she again became depressed and expressed suicidal ideation. He stated in the letter that she displayed signs of dementia of an Alzheimer’s nature. The plaintiff would not have seen this letter at that time.

[18] Prior to this letter the defendant had referred the plaintiff to a neurologist one Dr Coetzee.  On 8 March 1995 Dr Coetzee sent the defendant a report on the plaintiff’s condition. The letter appears to have been posted to the defendant and Dr Theunissen and this information would not have been available to the defendant at the time he reported to Dr Theunissen on 11 March 1995 as referred to above. The defendant also testified that he had not seen Dr Coetzee’s report at the time he wrote to Dr Theunissen. Dr Coetzee noted that the plaintiff complained of memory loss and confusion. Dr Coetzee sent a report not only to the defendant but also to Dr Theunissen, her house doctor. The letter is in fact addressed to the defendant in using his first name, Eddy and Dr Coetzee thanks the defendant for the referral and raises in the very second paragraph of the letter the question as to whether the plaintiff suffered from progressive dementia and ‘Die vraag is of Mev Marais besig is om ‘n progressiewe dementia weens ‘n geheue stoornis te ontwikkel.   Sy is tans geweldig depressief en het slegs selfmoord gedagtes.’  Dr Coetzee does not find that she is suffering from Alzheimer’s disease. He concludes that she suffers from a severe depression and that she is suffering from burn out as far as her work is concerned.  He suggested that she does not stop working but reduces her pressure at work

[19] The chronology of these two letters requires comment as the defendant in his letter of 11 March 1995 to Dr Theunissen and raises with Dr Theunissen the following: he describes that she presented with major depression and panic attacks and that she no longer wished to work and she could not cope with the most basic work responsibilities because of her stress. He raises on the second page the following, that the cognitive deficits are so much more serious than is usually associated with serious depression. He makes the following:  ‘Tewens die belemering is telkens van ‘n aard wat met verstandelike agteruitgang of dementia van Alzheimer se tipe geassosieer word.  Om hierdie rede wil ek sterk aanbeveel dat u haar moet oorweeg vir onmiddellike pensioen toetrede vanweë medies en sielkundige redes.’ It is important to analyse very carefully what the import of the observation of the defendant is.  He sees the depression as being very serious and that the symptoms of an Alzheimer type illness could be possible.

[20] During the course of the trial it was suggested that the defendant had not waited for the report from Dr Coetzee before the defendant himself reported to Dr Theunissen about Alzheimer’s type dementia or did not heed Dr Coetzee’s finding that the plaintiff did not have dementia. It appears that Dr Coetzee’s report was posted, so it is unlikely that the defendant would have received Dr Coetzee’s report which was only written on 8 March 1995. The defendant testified that he had seen Dr Coetzee’s report when he wrote to Dr Theunissen on 11 March 1995. Certainly that is an issue that cannot be determined in the absence of Dr Theunissen and Coetzee testifying. The plaintiff relied on the defendant’s report to Dr Theunissen to suggest that the defendant notwithstanding Dr Coetzee’s report continued to diagnose her as suffering from Alzheimer’s disease. The defendant at some stage testified that he had not read Dr Coetzee’s entire report.

[21] In the following year in the light of the plaintiff’s failure to improve the defendant referred the plaintiff to Dr Ming a neurologist who also found that she did not have any features of primary dementia and reported this to the defendant. Dr Ming recommended a continuation of psychotherapy and changed the medication. The plaintiff’s then husband was present at that consultation and it would seem that he described that the plaintiff’s problem started two years prior to the consultation and that would be 1994.

[22] Mr Mallinson, in his report, carefully casted his final recommendation that he relied entirely on what the plaintiff has told him namely that the defendant had told her that she had Alzheimer’s.

[23] The remaining correspondence and letters and reports written are of importance. It would seem that on 13 March 1995 a document is filled in and in paragraph 3.8 of that document, its source being rather vague, but presumably sent to the plaintiff’s employer.  The following is stated where reference is required to medical treatment.

‘Sielkundige terapie hospitalisasie en chemoterapie.’

[24] The Commercial Union Insurance Company on 7 July 1995 wrote to the defendant and asked for a copy of the psychometric analysis done. Presumably all this is still for the process of assessing whether she should be medically boarded. On 3 August 1995 he did a report and suggested that if the insurance company required greater detail that they give a name of a registered psychologist for that purpose.

[25] Of importance is that nowhere in this correspondence is there any reference by the defendant to the fact that the plaintiff does indeed suffer from Alzheimer’s.  On 20 November 1995 the ABSA group pension fund found that she was not totally disabled and she could not be permanently boarded but they would continue to assess the situation.

[26] In 1997 the ABSA group pension fund required further records and in that regard the defendant, then did produce a further report. He describes her as suffering from a severe depression. No reference is made to any Alzheimer’s diagnosis or indeed any Alzheimer type condition. This letter was also aimed at trying to protect the plaintiff from the fact that she had taken on extra work in a nail bar and he downplayed that and set out in the report that the complexity of her involvement in that nail bar business was not of a complex nature and was similar to partaking in ordinary house work and said that if they terminated her benefits it would exacerbate her depression.

[27] I now turn to the report of the 3^rd of October 1995 by Dr Coetzee. He comments that she was hospitalised again with a serious depression that had not subsided and he given a general description of her problems and says in his observations that he could not objectively say that she had an Alzheimer’s illness or anything of the sort in the form of dementia. His diagnosis and clinical findings were that her dysfunction was based totally on the underlying depression that she suffered from and he did not see her condition as a permanent one and that he had spoken to her psychiatrist who supported his view on this.

[28] The further expert report by a witness who was not called but admitted by agreement, was Dr Vivian Fritz.  She described the plaintiff as a very disturbed person. She even referred to the very confused history that had been given to her by the plaintiff. She stated that she found the plaintiff to be suffering from certain paranoia symptoms and having regard to the incoherent and contradictory nature of the facts given to her she could not find that the defendant had been negligent and she also found that she could not establish that the plaintiff had Alzheimer’s at that time. It would seem therefore that by the time the plaintiff saw Dr Fritz on 7 February 2006, she believed that she was suffering from Alzheimer’s was still there and Dr Fritz was not able to comment on that.

[29] The remaining experts, Mr Mallinson and Mr Ormond-Brown testified. Dr Mallinson in fact had consulted with the plaintiff and he made certain allegations but as I have said previously, these allegations were really based in relation to the alleged negligence based on what the plaintiff had informed me.  I quote in paragraph 8:

‘On the version of events relayed by Mrs Marais, in my opinion, Professor Wolff was negligent in informing Mrs Marais of his diagnosis without obtaining the opinion of a neurologist. Professor Wolff should have also doubted his diagnosis when Mrs Marais was still competent enough to assist him in his practice as can be reflected in his letter dated April 1998.’

[30] The joint minutes of the two experts are of importance. Both the experts agreed that the defendant had taken the correct steps to on refer the plaintiff to other experts. When Mr Mallinson was cross-examined as to whether he indeed was in the position to say that the defendant had been negligent despite what he had stated in his reports, it was clear that he had not been placed in possession of all the reports and, in my view, Mr Mallinson was unable to sustain his view of negligence after very properly taking into account the facts that were put to him during cross-examination.  They also agreed that they did not know what steps were in fact taken by the defendant to convey the opinion that he did not have Alzheimer’s disease. What is noteworthy is that she continued to have psychotherapy with him for a considerable time. Now all this was inconsistent with what she had told them and what she had told Dr Fritz and others, the aggression and anger she expressed about the defendant and this must be weighed against the fact that the defendant was adamant throughout his testimony that he did not mention the word Alzheimer’s at all to the plaintiff.

[31] It might well be that during that brief period of 10 days when she worked in his office in 1998 she could have had sight of the defendant’s report to Dr Theunissen. However, the origin of her allegation that she was told that she had Alzheimer’s disease when in fact she did not be discerned from the documents and what she relayed to Mr Mallinson and Dr Fitz cannot be taken as the truth of the allegation. It is clear looking at the general probabilities if the plaintiff had indeed consulted Dr Coetzee in 1995 and Dr Ming in 1996 if she at that stage had been told by the defendant that she did indeed suffer from Alzheimer’s disease it would have been in their reports and they would have reassured her that she did not suffer from the disease. Clearly with Dr Ming and Dr Coetzee did not address one of her primary concerns about Alzheimer’s and neither of their reports raise directly her concern and psychological devastation in relation to the alleged Alzheimer’s diagnosis.

[32] Dr Shevel a psychiatrist also produced a report and testified. He looked at some 18 items of evidence.  These were the particulars of claim, the judgment and transcription concerning the matter of prescription, all the medical reports, the letters to the ABSA group pension fund, the psychometric report and various letters. He also considered the prescription of medication by Dr Theunissen and also had regard to the medico-legal report of Mr Ormond-Brown. He was not able to assist the court in determining whether indeed the allegation by the plaintiff was credible. He was able to assess the kind of medication that was prescribed to the plaintiff and really concluded that that medication was consistent with a condition of depression and not that of dementia.  He notes that Dr Ming and the others all referred to her primary problem as being a depressive disorder and of course the adjustments by Dr Ming are per medication or related to a depressive condition and not to any possible diagnosis or suggestion of Alzheimer’s.

[33] The evidence of Dr Ormond- Brown a psychologist also testified. His evidence was criticised by the plaintiff’s counsel as being hearsay since he had not examined the plaintiff.  However he was able to assist the court in the sense that he could assess whether within these profession of psychology whether the defendant had taken proper steps in assisting her. He regarded as the defendant doing more than what was necessary to refer her to Dr Coetzee as well as Dr Ming. In other words, Mr Ormond-Brown opined that the defendant took all measures possible particularly in regard to the fact that her condition deteriorated. He was very certain that the correct steps were taken by the defendant and that these were inconsistent with the allegation of negligence. He was very careful in opining, as he did, that he was not telling the court what the court should do. He was merely relating what would be appropriate medical and psychological practice in his field.

[34] I accept that report and found his evidence to be helpful.  He also analysed very carefully the reports of Drs Fritz and Coetzee, and why the plaintiff continued to believe and persisted in the belief, that she had Alzheimer’s.  He did not try to intrude upon the court’s role in stating that the defendant was negligent but merely emphasized to the court from the documentation available that the steps taken by the defendant was not consistent with negligence. He also, and this was not contradicted by Mr Mallinson, that there is nothing wrong in the health professions believing that a patient might have a given condition and then initiating investigations in relation to that hypothesis, even if the suspicion turns out to be incorrect.

[35] Having disallowed that evidence I have to therefore consider whether the defendant did indeed diagnose the plaintiff with Alzheimer’s and in that way caused the consequential features of her psychological condition. At the outset it is important to note that the plaintiff was already severely compromised when she first went to see the defendant. Her doctor, Dr Theunissen was not called to testify and it was Dr Theunissen who sent the plaintiff to the defendant for evaluation and possible psychotherapy.

[36] An important feature in this trial is that the witnesses which were available to the plaintiff were not brought to court to testify, or alternatively if they were recalcitrant subpoenaed to testify. During the course of argument I put to the plaintiff’s counsel and asked why Drs Theunissen, Ming and Coetzee could not have been subpoenaed. Apparently there was a general reluctance by Dr Theunissen. One of the doctors had died and there was no substantial or convincing reason placed before me why the other doctors could not have been called to testify as to whether indeed the defendant had told the plaintiff that she had Alzheimer’s.

[37] I therefore have to consider whether the defendant was guilty of any negligence in the manner in which he dealt with the plaintiff.  In this regard substantial evidence has been placed before the court. There is the report of Dr Malinson on behalf of the plaintiff and the further report by Dr Fritz who was also not called as a witness to these proceedings.

[38] Having analysed the objective documentation in this case, it is clear to me that for many years, close to 10 years, there is nothing which is suggestive of the fact that the defendant told the plaintiff that she had Alzheimer’s.   While some of the evidence and possibly a letter written by the defendant to the plaintiff can be criticised, the defendant was adamant that he never told her that she had Alzheimer’s.  Consistent with that statement I have to weigh what is said in the reports and from what I can see in those reports there is nothing to suggest that the defendant did in fact tell her that she had Alzheimer’s.

[39] It is also improbable that she would have attended upon all those medical specialists and if Alzheimer’s was her primary and devastating concern, that that would have not been a central feature addressed in the reports.   Both Dr Ming and Dr Coetzee’s reports are, although short, incisive and to the point.  Nothing seemed to have been left out and the question of Alzheimer’s certainly was not raised in those reports.

[40] I now turn to the rule 30 (a) application which was brought by the plaintiff because of the non-compliance with the trial procedures. It was submitted that even this non-compliance with the trial procedures should lead the court to find that the defendant is an unsatisfactory witness and that he was in fact lying and that word was used, lying about the fact that he had told the plaintiff that she suffered from Alzheimer’s.

[41] There were further grounds upon which the plaintiff’s counsel asked me to find that the defendant was an unsatisfactory witness and that could lead to the conclusion that he did tell the plaintiff that she suffered from the condition.  It is clear that in one of the letters there was quite a bit of detail. When the defendant testified he stated that he did not read the full letter of Dr Coetzee, but only the final paragraphs.  Whilst that does raise a concern it is not sufficient for me to find that the defendant was negligent.

[42] There is also the letter that he wrote to the plaintiff when she assisted him.  He suggested that she look after his financial affairs, liaise with his auditor and alike and this letter was a mere two months after he told the ABSA pension group that she was incapable of working and that these two together must lead to the inference that he was negligent and not acting in a proper manner. The letter does raise concerns about the professional relationship that should have existed, however, there is insufficient detail in that letter for me to come to the conclusion that he acted negligently in writing to her in the way that he did.  His evidence really centred around the fact that he was trying to boost her self-confidence when he wrote the letter and the other important inference to be drawn is that if she indeed suffered from Alzheimer’s this letter would have been an incredulous piece of evidence if he did indeed believe that she had Alzheimer’s. 

[43] The plaintiff’s counsel submitted then that the cumulative effect of the letters, lack of reading the specialist letters, the letter to the plaintiff and the manner that he conducted himself in this trial, should all lead to the fact that he was a person, a psychologist who did not meet the requisite standard and therefore was negligent.

 

Negligence

[44] The plaintiff’s counsel relied solely upon the negligence of the defendant. No other ground in delict was elide upon.  In order to prove negligence the plaintiff would have to meet the test in Kruger v Coetzee 1966 (2) SA 428 (A) at 430E-H  and establish the following:

‘‘For the purposes of liability culpa arises if -

(a) a diligens paterfamilias in the position of the defendant -

(i) would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and

(ii) would take reasonable steps to guard against such occurrence; and

(b) the defendant failed to take such steps.’

[45] The principle in Mitchell v Dixon 1914 AD 519 at 526 relating to negligence has long been accepted by our courts. Innes ACJ (as he then was) stated:

'A practitioner can only be held liable in this respect, if his diagnosis is so palpably wrong as to prove negligence, that is to say, if his mistake is of such a nature as to imply absence of reasonable skill and care on his part, regard being had to the ordinary level of skill in the profession.'

[46] In the present matter it cannot be said that the defendant was negligent or that he did not exercise the necessary care and skill required of him. He referred the plaintiff to experts when her condition did not improve and in so doing did what both psychologists, Mr Mallinson and Mr Ormond-Brown stated would be appropriate.

On all the evidence that is exactly what the defendant did. He examined the plaintiff's problem in depth.

Rule 30(A) application

[47] The defendant had failed to comply timeously with a request made during a pre-trial conference. The plaintiff launched an application to compel in terms of rule 30 (A). The defendant was criticised this non-compliance. The defendant explained that during the course of the litigation he had changed attorneys of record. During the litigation he also suffered from a stroke and it was on that basis unable to attend the pre-trial conferences when he was in between the various attorneys.

[48] In my view, the defendant should be ordered to pay the costs of the rule 30 (A) application. It was an unopposed application. No evidence could be produced that it was opposed and the scale of costs was reserved at that hearing. It was submitted that I should order costs on the attorney-client scale. I am of the view that without substantial information concerning that particular procedural issue, I can only order costs on the party-and-party scale.

[49] The defendant’s counsel submitted that if the defendant were to be successful, I should order costs justifying the appointment of senior counsel.  In my view this was a very important matter for the defendant and justified the employment of senior counsel, having regard to the repercussions to the defendant’s reputation. The plaintiff’s executor had made sure that the plaintiff was represented by two counsel so obviously this was a matter of equal importance for the plaintiff. I therefore find that the costs of senior counsel are justified.

The order that I make is the following:

1. The action is dismissed with costs.

2. The costs including the costs of one senior counsel.

3. The defendant is ordered to pay the costs of the rule 30 (a) application on the unopposed scale.

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