The High Court granted judgment in favour of the plaintiff for general damages and future medical expenses but did not make an award any special damages for his loss of earnings. The court did not grant the plaintiff costs in respect of its experts on the basis that the expert evidence was not of ‘appreciable help’ to the court.
On appeal, the plaintiff averred that the court had erred by not granting costs on the basis that the plaintiff relied on the expert reports to substantiate his successful claim for future medical expenses and general damages and for this reason he was entitled to the costs of the experts.
The court expressed why it found that the plaintiff had failed to lead evidence which established the factual basis for the expert reports. The reports did not contribute the plaintiff’s success. Instead, the court relied on the plaintiff’s own evidence over the expert reports which contained factual assumptions which conflicted with the plaintiff’s own evidence.
The court relied on the constitutional court judgement of Glenister v President of the Republic of South Africa 2013 (11) BCLR 1246 (CC) in which the constitutional court held that “the true and practical test of the admissibility of the opinion of a skilled witness is whether or not the court can receive ‘appreciable help’ from that witness on a particular issue.” The Constitutional Court held that there was no reason why costs should be awarded for expert witnesses when the court did not rely on any expert testimony in its determination.
The court held that:
- The plaintiff’s averments were flawed in that it did not matter whether the court used the expert reports used by the Plaintiff but rather whether the court gained ‘appreciable assistance’ from the reports, or whether some other justifiable reasons exist to permit the expert costs exists;
- It was factually incorrect for the plaintiff to aver that the court had made use of the reports to award future medical expenses and general damages and the plaintiff failed to show that the court did; and
- By awarding these damages, it does not mean that the court relied on expert reports.
Only the costs relating to the experts preparing for and adducing expert evidence such as preparation, attendance and qualifying fees were specifically disallowed as there may be other costs of experts which may be found by the taxing officer under Uniform Rule 70(3) to be costs reasonably incurred in relation to the claim.
The plaintiff’s application for leave to appeal was dismissed, however, the court varied its original judgment to cite that “costs do not include the costs of experts relating to their adducing, or potentially adducing, of expert evidence at trial”.
The takeaway is this:
When seeking an order in respect of costs, it is important for successful litigants to consider whether a court derived ‘appreciable help’ from its expert evidence. This can be determined by establishing whether the findings made by a court were within its own competence or whether expert assistance was needed to make the findings.