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IN THE NORTH WEST HIGH COURT, MAFIKENG

                                                            CASE NO:  319/2016

In the matter between:

MEC FOR HEALTH, NORTH WEST PROVINCE                    Applicant

and

DUMISANI, MR obo BM                                                           Respondent

In Re:

DUMISANI, MR obo BM                                                             Plaintiff

and

MEC FOR HEALTH, NORTH WEST PROVINCE                    Defendant

DATE OF HEARING                                               :       06 MAY 2019

DATE OF JUDGMENT                                          :         31 MAY 2019

FOR THE APPLICANT                              :           ADV. J.F MULLINS SC

with ADV. T PHEHANE

FOR THE RESPONDENTS                                  : ADV. G SHAKOANE SC

                                                                                 with     ADV. T MAKGATE

JUDGMENT

HENDRICKS J

Introduction

[1]        On the 23^rd March 2016, the plaintiff (respondent) instituted an action for damages against the defendant (applicant) based on alleged medical negligence. This action is defended and the defendant filed and served a plea on 31^st August 2016, disputing the allegations and claim. The plea was later amended. Pleadings were closed and pre-trial conferences were held in order to get the matter trial ready. A trial date was applied for and granted. The matter was set down for trial on 06^th to 10^th May 2019.

[2]        During the second pre-trial conference which was held on the 19^th September 2018, the parties agreed that they will both file Rule 36 (9) (b) summaries of their respective expert’s reports. After an extension was agreed upon, the plaintiff’s attorneys filed and served their expert summaries, designed and drafted by plaintiff’s legal representatives.

[3]        After receipt of plaintiff’s summaries, the defendant filed and served a notice in terms of Rule 36 (4) on the 04^th April 2019. The plaintiff, in reply to the defendant’s Rule 36 (4) notice, stated that the information and documents sought are privileged and not relevant for the assessment of damages. Therefore, the information and documents requested are denied.

[4]        On the 16^th April 2019, the defendant served and filed a notice in terms of Rule 35 (3) and (6) seeking the information and documents mentioned in plaintiff’s summaries. During the subsequent third teleconference pre-trial, the plaintiff’s legal representatives acknowledge receipt of the defendant’s Rule 35 (3) and (6) notice. They reiterate their stance and persist in the denial of the information and documents. The defendant (applicant) then launched the present application.

[5]        In the Notice of Motion the applicant prays for an order in the following terms:

“1.     Ordering the Plaintiff to deliver to the defendant the documents mentioned in the defendant's Rule 35(3) and (6) notice, particularly the following:

1.1.       The documents which constitute the premise, source or data on or from which the expert summaries are based or drawn; and

1.2    The medical reports, hospital records, x-ray photographs or other documentary information from the following doctors of the Plaintiff:

1.2.1. Dr. S.C. Davis, an obstetrician;

1.2.2. Prof. E.J. Coetzee, an obstetrician and gynaecologist;

1.2.3. Dr. C.C. Lombard, a paediatrician with experience in

neonatology;

1.2.4. Prof. S. Andronikou, a diagnostic radiologist and

Professor of radiology; and

1.2.5. Prof. A. Nolte, Professor of nursing.

2.      Granting the Defendant costs associated with the making of this application.”

            This application served before this Court on 06^th May 2019.

[6]        It was contended on behalf of the applicant that this application is intended to compel the respondent to make available for inspection and the making of copies of the aforementioned documents, based on the following reasons:

6.1.      the respondent’s (plaintiff’s) claim is founded on the said information or documents and medical or medico-legal reports of the experts mentioned;

6.2.      the respondent (plaintiff) has since filed summaries of the said experts’ opinion and evidence based on such information or documents and reports;

6.3       in such summaries, the respondent’s (plaintiff’s) attorneys or legal representatives expressly make cross-reference to and have also included excerpts from such experts’ documents and medical reports or medico-legal reports; and

6.4       the said medical reports or medico-legal reports and other related information or documents from the doctors or experts of the respondent, form or constitute the premise, source or data on or from which the respondent’s experts’ summaries filed of record, are based or drawn.

[7]        Rule 36 (8) states:

“36   (8)   Any party causing an examination to be made in terms of subrules (1) and (6) shall-

(a)          cause the person making the examination to give a full report in writing of the results of his examination and the opinions that he formed as a result thereof on any relevant matter;

(b)          after receipt of such report and upon request furnish any other party with a complete copy thereof; and”

Rule 36 (9) (b) states:

“36. (9)    No person shall, save with the leave of the court or the consent of all parties to the suit, be entitled to call as a witness any person to give evidence as an expert upon any matter upon which the evidence of expert witnesses may be received unless he shall-

(a)   not less than fifteen days before the hearing, have delivered notice of his intention so to do; and

(b)   not less than ten days before the trial, have delivered a summary of such expert's opinion and his reasons therefor.”

(emphasis added)

[8]        In terms of Rule 36 (8) (a), a party causing an examination of a person or thing may be required to give a full report in writing of the results of his examination and the opinion(s) that he formed as a result thereof on any relevant matter. In terms of Rule 36 (8) (b) the party causing the examination to be conducted must furnish the report thereof to the other party, upon request. Therefore, if a report is required, Rule 36 (8) should be applied for. It is quite apparent that Rule 36 (9) requires delivery of a summary of such experts’ opinion(s) and the reason(s) therefor. It does not require that the report of the expert had to be disclosed. If the whole report had to be disclosed in terms of Rule 36 (9), there would not have been reference to a summary. If it was that Rule 36 (9) would be the same as Rule 36 (8) (b), then Rule 36 (9) would be superfluous.

[9]        In Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft Für Schädlingsbekämpfung MBH 1976 (3) SA 352 (A), the following is stated:

“ ‘summary’ - (as an adjective) 'compendious, brief, dispensing with needless details'; (as a noun) 'brief account, abridgement, epitome'.

  ‘opinion’ - Judgment or belief based on grounds short of proof';

   'Formal statement by expert when consulted of what he holds to be the fact'.

 ‘reason’ - '(Fact adduced or serving as) argument, motive, cause or justification.'

In the context in which the phrase 'reasons therefor' is used in Rule 36 (9) (b) it means, or at least includes, the facts or data on which the opinion is based. The facts or data would include those personally or directly known to or ascertained by the expert witness, e.g., from general scientific knowledge, experiments, or investigations conducted by him, or known to or ascertained by others of which he has been informed in order to formulate his opinions, e.g., experiments or investigations by others, or information from text-books, which are to be duly proved at the trial. However, 'summary' also governs 'his reasons therefor'; hence the testimony that the expert witness intends to give need not be fully set out in the summary.

In deciding whether there has been due compliance with sub-rule (9) (b), it is, in my opinion, relevant to have regard to the main purpose thereof, which is to require the party intending to call a witness to give expect evidence to give the other party such information about his evidence as will remove the element of surprise, which in earlier times (regarded as an element afforcing a tactical advantage) frequently caused delays in the conduct of trials. Indeed, all the sub-rules of Rule 36 were formulated with that purpose in mind. Consequently, when summarising the facts or data on which the expert witness premises his opinions, the draughtsman should ensure that no information is omitted, where the omission thereof might lead to the other side being taken by surprise when in due course such information is adduced in cross-examination or evidence.”

                                         (emphasis added)

[10]      The case of Coopers is distinguishable from the present case. The Coopers case concerned a ruling that the summaries complied with Rule 36(9) and it was found on appeal by the Appellate Division that it did not. The present case does not concern a complaint that the summaries does not conform with the requirements of Rule 36 (9). The reasons for the conclusions/opinions in the summaries are not under attack, like in the Coopers case.

[11]      Adv. Mullins SC, on behalf of the respondent, contended that an expert report amounts to a witness statement and that it is privileged. He submitted that this amounts to litigation privilege. In Competition Commission of South Africa v Arcelormittal South Africa Limited and Others 2013 (5) SA 538 SCA the following is stated in paragraph [20], [21] and [30]:

“[20]    Litigation privilege is one of two components of legal professional privilege, the other being the privilege that attaches to communications between a client and his attorney for the purpose of obtaining and giving legal advice. Litigation privilege, with which we are concerned in this case, protects communications between a litigant or his legal advisor and third parties, if such communications are made for the purpose of pending or contemplated litigation. It applies typically to witness statements prepared at a litigant's instance for this purpose. The privilege belongs to the litigant, not the witness, and may be waived only by the litigant. 

[21]     Litigation privilege has two established requirements: The first is that the document must have been obtained or brought into existence for the purpose of a litigant's submission to a legal advisor for legal advice; and second that litigation was pending or contemplated as likely at the time.

                                                                 and

[30]     There is no reason to doubt that explanation. Moreover, our courts have held that, subject to certain limited exceptions —

‘the statements in the affidavits of documents are conclusive with regard to the documents that are . . . in the possession . . . of a party giving the discovery . . . as to the grounds stated in support of a claim of privilege from production for inspection.’

A court will therefore not lightly go behind averments in an affidavit to the effect that the likelihood of litigation was contemplated when the document was procured.”

[12]      It was further submitted that this makes quite obvious and plain that communications between a legal advisor and third parties, if such communications are made for the purpose of litigation, are privileged. So too, are reports produced by experts at the request of attorneys for the specific purpose of litigation, covered by litigation privilege.

[13]      I am in full agreement with the submission made by Adv. Mullins SC that expert reports amount to litigation privilege. A report from an expert witness is in essence the same as a statement from a lay person as a witness. Both are covered by litigation privilege if they were obtained for purposes of litigation. This explains why statements of witnesses are excluded from discovery schedules in terms of Rule 35 (2).

[14]      However, documents provided to the expert on which the expert relied for purpose of arriving at the conclusions contained in his/her report are treated differently. However privileged those documents might have been, that privilege is lost once the expert’s report is provided to the other side in terms of Rule 36 (8). This is however different from where the report of the expert does not contain information based on a document supplied by the attorney. Such report of the expert is privilege unless the privilege is waived. There is no indication that same is applicable in this matter.

[15]      Adv. Shakoane SC, on behalf of the applicant, submitted that the applicant is entitled to the expert reports mentioned in the summaries. This is based on the fact that there is reference to these expert reports as the base or data for the summaries and the privilege that might have been incurred, is waived. In Competition Commission of South Africa v Arcelormittal case, supra, the following is stated:

“[33]      Waiver may be express, implied or imputed. It is implied if the person who claims the privilege discloses the contents of a document, or relies upon it in its pleadings or during court proceedings. It would be implied too if only part of the document is disclosed or relied upon. For a waiver to be implied the test is objective, meaning that it must be judged by its outward manifestations, in other words, from the perspective of how a reasonable person would view it. It follows that privilege may be lost, as the English courts have held, even if the disclosure were inadvertent or made in error. Imputed waiver occurs when fairness requires the court to conclude that privilege was abandoned. The respondents contend that in this case the loss of privilege is implied or to be imputed to the commission. The commission submits that the bare references to the leniency application in the referral affidavit did not amount to a waiver of privilege.

[34]        I appreciate that a bare reference to a document in a pleading, without more, may be insufficient to constitute a waiver, whereas the disclosure of its full contents may constitute a waiver. Where the line is drawn between these extremes is a question of degree, which calls for a value judgment by the court. When that line is crossed the privilege attached to the whole document, and not just the part of the document that was referred to, is waived. The reason is that courts are loath to order disclosure of only part of a document because its meaning may be distorted. But it must also be so that it does not inevitably follow that because part of a document is disclosed, privilege is lost in respect of the whole document. This would be so where a document consists of severable parts and is capable of severance. I turn to the facts here.”

[16]      I am of the view that the respondent did not waive its privilege on the expert reports in this matter. I am of the view that the applicant did not succeed in making out a case for the relief prayed for in the Notice of Motion. The application stands to be dismissed.

Costs

[17]      Both parties were ad idem that the matter was not ready to proceed with on trial, despite the fact that it was set down for a week. It is quite apparent from the papers filed that this application could have been enrolled much earlier during February 2019. This application was only served and filed on 16^th April 2019, shortly before the date of trial. Had it been filed earlier, perhaps it could have been disposed of earlier and the trial would have commenced on the date on which it was set down for it to commence. Be that as it may, in my view there is no plausible reason why costs should not follow the result and be awarded in favour of the respondent (plaintiff). As a result of the complexity of the matter and its import to both parties, the costs of two counsel (senior and junior) are warranted.

Order:

[18]      Consequently, the following order is made:

18.1      The application to compel compliance in terms of the Rule 35 (3) and (6) notice is dismissed with costs on a party-and-party basis. Such costs to include the costs consequent upon the employment of two counsel (Senior and junior)

18.2      The matter (action) is postponed sine die in order to obtain a trial date from the Registrar of this Court and/or the Judge President.

18.3      The defendant in the main action is ordered to pay the wasted costs occasioned by the postponement on a party-and-party basis. Such costs to include the costs consequent upon the employment of two counsel (Senior and junior)

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R D HENDRICKS

JUDGE OF THE HIGH COURT,

NORTH WEST DIVISION, MAHIKENG

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