Appointing a curator ad litem – are we applying the law correctly?

DE REBUS June 1st, 2014

By Maud Letzler and Viviana Vergano

The appointment of curators is a daily occurrence in our courts and in particular in the North and South Gauteng High Courts where the proliferation of personal injury matters has made such appointments common place. On the other hand, in matrimonial matters it is not utilised enough to safeguard the interests of minor children, where such interests form the very dispute between parents (by inference we refer to any lawful guardian as well) and require that an independent person takes cognisance of the child’s wishes, which interests, however, may not always be sufficiently protected by an overworked family advocate.

A short summary of the different bases for the appointment of curators is detailed herein, together with an exposition of the law regulating the appointment of curators and the duties and responsibilities that rest on such curators by law or by inference.

The law

A number of writers who contributed to the Roman Dutch law from which curators originate are referred to in Ex Parte Hill 1970 (3) 411 (SA) by Van Winsen J such as Kaser Roman Private Law (Dannenburg’s trans) 2nd ed para 64 (iii); Gaius Elements of Roman Law (Poste’s trans) 3rd ed p 138; and de Groot Introduction 1.11.2.

The common law relating to curators was preserved by the Mental Disorders Act 38 of 1916 repealed twice and currently regulated by the Administration of Estates Act 66 of 1965. The latter Act of 1965, makes provision for the appointment of various types of curators inter alia a curator ad litem and would not be repeated here.

Rule 57 of the Uniform Rules of Court, deals specifically with the inherent power of the court to appoint curators and in particular, curators to people who are mentally incapacitated. A person who is not mentally incapacitated but still personally or through an interested party, feels the need to appoint a curator to manage his or her property may be declared a prodigal and a curator bonis may be appointed without the need for a curator ad litem. This is particularly useful in awards for damages where the amount awarded needs to be protected but the plaintiff is not of unsound mind (see Delius v Delius 1960 1 SA 270 (N)).

It may be useful in preparation for your duties as curator or in drafting such an application to have sight of not only Erasmus Superior Court Practice Uniform Rule 57 but also of LAWSA vol 3 ‘Civil Procedure’ Para 425 to 431; AC Cillier, C Loots and HC Nel Herbstein and van Winsen: The Civil Practice of the High Courts and Supreme Court of Appeal of South Africa 5th ed (Cape Town: Juta) p 164 – 174 and Chapter 48, which deals with this in detail; and the Administration of Estates Act and the Mental Health Act supra.

The duties

According to r 57 (5) ‘Upon his appointment the curator ad litem … shall without delay interview the patient, and shall also inform him of the purpose and nature of the application. … He shall further make such inquiries as the case appears to require and thereafter prepare and file with the registrar his report on the matter to the court, at the same time furnishing the applicant with a copy thereof.’

The Gauteng High Courts very seldom implement the procedure set out in r 57 (5) and it is maybe time that the courts crack down on the current and very common practice of appointing curators on the day of trial. A recent unreported judgment of Bertelsman J in the matter of Modiba obo Ruca v Road Accident Fund (GP) (unreported case no 73012/13, 27-1-2014) questions this practice by stating at para 1 ‘By avoiding or circumventing the provisions of the Rule and the common law principles established over decades, these matters are prevented from coming to the Master’s attention, avoiding the latter’s supervision and scrutiny while the potential need to appoint a curator bonis or curator bonis et personae to the individual concerned is not considered properly or at all.’

It is noteworthy to reflect on the commentary set out in Erasmus (B1-395), relating to the importance of the duties of a curator and the fact that because the court relies heavily on the curator’s report that he or she is to fulfil his or her duties with efficiency and fully with great responsibility, and in order for the court to exercise a proper discretion in a particular case. It is the duty of the curator ad litem, by making such inquiries as he deems necessary, to see that the existence and extent of the patient’s mental illness are properly investigated, and to ensure that the proprietary and other interests of the patient are adequately protected by the terms of the order made by the court.

The courts have mentioned that the curator ad litem may in certain circumstances function rather as an amicus curiae, and his or her primary function in the present context is to ensure that the proprietary and other interests of the patient are adequately protected (Steyn v Steyn 1972 (4) SA 151 (NC) at 151).

According to F du Bois (ed) Wille’s Principles of South African Law 9th ed (Cape Town: Juta), a curator ad litem has no power over the person or property of the person whom he or she is appointed to represent, and his or her authority extends no further than the proceedings to which his or her appointment relates. He or she is responsible only to the court for the proper discharge of his or her functions. See also Ex Parte Campher 1951 (3) SA 248 (C).

In the matter of Ex Parte Glendale Sugar Millers (Pty) Ltd 1973 (2) SA 653 (N), it was said that ‘… the duties of a curator ad litem are clearly not to be confined to, or delayed until, an appearance in Court; the curator must investigate the relevant facts and circumstances and apply his judgment extra forensically in deciding what attitude he should adopt and the precise contents of his report to the Court.’ The Sugar Millers case states further that ‘[C]urators must make such investigations and judgments in regard to the appointment of curatores bonis in terms of the Uniform Rules of Court.’

In the matter of Ex Parte Campher above at p 252, the following was said: ‘The curator will ordinarily appear on the return day of the rule if he be counsel: in the case of other curators, appearance in person, or a written communication addressed to the Registrar, will, in straightforward cases, normally suffice.’ Furthermore, the above case sets out that circumstances can easily be envisaged where the services of independent experts may also be required in addition to the services of an independent attorney. Thus, for example, it may be necessary to test an essential link in the claim that comprises documentary evidence of doubtful authenticity requiring the assistance of an expert in questioned documents. In such circumstances the curator ad litem would normally make a request to the applicant for such assistance and the applicant would, in the majority of cases, no doubt afford all reasonable assistance. In case of a difference of opinion regarding the necessity of such assistance, a curator ad litem would be at liberty to apply to the court for directions in regard to such matter.

In the Campher matter, it was also noted by Harcourt J that an over-enthusiastic curator ad litem may well incur criticism. The judge regarded this as an occupational hazard of curator’s ad litem who, being responsible persons discharging important functions to assist the court, are expected to act responsibly.

Furthermore, with regard the question as to whether investigations that were made, well before a court appearance would suffer from the demerit of not being on oath, if a curator ad litem were to have grounds to believe that this imperfection in his ability to investigate might prejudice his ability to assist the court, he should report this belief to the court which would, if convinced of the disadvantage, no doubt either send the matter to trial or direct that oral testimony should be offered. It is the duty of the curator ad litem to see that the existence and extent of the prospective defendant’s mental illness are properly investigated at the trial and – assuming that the plaintiff succeeds on the merits – to do his best to ensure that the proprietary, and other incidental, interests of the patient are adequately protected by the terms of the order made by the court. Such functions can only be discharged by responsible persons.

In the case of Du Plessis NO V Strauss 1988 (2) SA 105 (A), the court commented on the conduct of the curator ad litem, the curator’s attitude was that arguments against the appeal had been fully advanced by the respondent and that the Appellate Division would benefit if he adopted a ‘more objective’ approach. Van Heerden JA held that this attitude was clearly in conflict with the duties of the curator ad litem, and it was furthermore expected of him to advance all possible arguments in favour of his charges.

In Dickinson v Dickinson 1981 (3) SA 856 (W) at 857G, it was stated that the only duty that a curator ad litem has, after his or her appointment, is to inform himself or herself properly of the patient’s condition. He or she is clothed with no powers whatever to represent him or her on any other basis and in any event he or she has no power to enter into contracts on his or her behalf. He or she can only represent him or her during such proceedings.

In the matter of Ex Parte Comins 1951 (2) SA 249 (W), which application for the appointment of a curator bonis was heard before Murray J, the court was asked to stabilise the practice regarding the admissibility in such applications of evidence by way of affidavit without the necessity of viva voce evidence in open court to establish the inability of the person in question to manage his or her own affairs. In the great majority of cases full evidence on this point has already been given on affidavit by the medical practitioners at the stage when the appointment of the curator ad litem is asked for his or her opinion. In open court, they merely repeat such evidence and there is, normally, no necessity for the court or the curator ad litem to examine or cross-examine these medical practitioners further. In fact the curator ad litem, in the proper discharge of his duty, has previously interrogated these medical practitioners for the purpose of his report to the court.

Lastly in a more recent judgment by Van Zyl J, in the matter of Ex parte: Futter, In re: Walter v Road Accident Fund and Another (ECP) (unreported case no 2422/2008, 17-8-2012) it was stated by Van Zyl J that: ‘The person appointed as curator ad litem as envisaged in Rule 57, is not appointed to simply act as amicus curiae to assist the court in determining whether the patient is capable or incapable of managing his own affairs, and whether the proposed curator bonis is a fit and proper person to administer the estate of the patient. He is appointed as curator ad litem to the patient, to act on his [or her] behalf and to represent his [or her] interests in the litigation pertaining to the appointment of a curator bonis to manage his [or her] estate. The appointment itself reflects negatively on the status of the patient and his [or her] legal capacity, not only to manage his own affairs, but also to litigate on his own’ (para 19).

Conclusion

It is above all clear that the best interest of the patient, minor or prodigal is what should be uppermost in the mind of the curators and it is doubtful that a curator appointed on the day of a trial could execute his or her function properly. Such matters should be postponed to allow the curator to properly investigate the matter. It is also doubtful that the appointment of a curator ad litem without the appointment of a curator bonis and/or curator ad personae would stand the scrutiny of the court in future in light of the Modiba judgement. In the cases of prodigals, it may be prudent to appoint a curator bonis as well as a trustee if they cannot function as one and the same, as the appointment will ensure that the scrutiny of the Master safeguards their interests.

A curator should furthermore never be a creature of instructions but should always remain independent and fiercely protective of their client’s rights without fear of reprisal. The position is after all based on that of great trust

Maud Letzler LLB (Unisa) and Viviana Vergano LLM (Banking Law) (UJ) are advocates in Johannesburg.

This article was first published in De Rebus in 2014 (June) DR 30.

Actuarial calculations

How to instruct your actuary and read your actuarial calculation - The most important consideration when instructing your actuary is not to simply forward the industrial psychologists report but to give due consideration to the past and future loss of income you want to claim for on behalf of your client.

The most important first step is getting the remuneration correct. A self employed individual would need to provide you with bank statements, tax returns and any info on additional part time income they might earn, last mentioned is very important as this is the first income that goes out the window when plaintiffs are injured. As per self employed individuals see my previous post for some advice in this regard

 

Make sure that you have a list of all benefits that a plaintiff receives from the company if this is not in his employment contract or reflected on his payslip, e.g. a paid lunch, transport or any daily cash allowance. Domestic workers and gardeners are a good example of this. Taxi drivers are a tricky one, make sure you contact the taxi association to determine the name and number of the owner of the taxi so as to enable you to confirm income and terms and conditions as taxi drivers actually pay the owner of the taxi and keep the rest for themselves, as such their income may fluctuate and not be in line with Patterson levels.

 

Make sure to inform the actuary if you want to use a different basis for calculation in terms of promotional prospects or future salary increases as per the industrial psychologists report. Even without an IP report you can adequately brief a actuary in an MVA matter but briefing an actuary in a medical negligence claim would require the quantification of all hospital and medical expenses and for that you will need to present the actuary with ALL your expert reports so as to allow him to do a schedule to the calculations.

 

Remember to tell your actuary which contingencies you would like him to apply and please consider these carefully and discuss them with your counsel as they can add or subtract to your calculation exponentially. If you are appearing for the defendant make sure you do not double discount. Look at employability versus a large contingency deduction and see which option would be the best.

 

Advise your actuary on any accelerated benefits received and/or disability benefits and remember not to include sympathetic employment as an income. Read your case law about this.

 

How do you read a calculation? First off you need to check that the info you provided the actuary with is in actual fact correct i.e. is all the factual information used by the actuary correct as provided by you.

 

Check the inflation rates and the discount rates used by the actuary and see if you are happy with them or if they differ substantially from the other sides calculation and ask why those were used. Make sure you are satisfied with the life tables used and that you find them applicable to your client as these may be very important not so much in MVA matters as in Med Neg matters where benefits are lifelong.

 

The calculation would be divided into various columns and tables. One for past loss before and after accident and up to date of trial. Then one for prospective earnings before and after accident. It is often referred to in case law as the "now then" and "but for" scenarios. Contingencies in these two scenarios differ markedly and you should know the difference between the two. Contingencies on the past loss should also differ on the but for and now that scenarios and should not be a globular deduction.

 

Contingencies can be deducted at the end of the matter as a lump sum but make sure you take the amount pre-contingencies on your calculation otherwise you will double discount the plaintiff. Again make sure that the discount is fair and reasonable taking into consideration all the relevant case law.

 

Actuarial calculations are not complicated but very important, don't ignore them and learn to use them in your favour.

Capacity v Productivity - An application to proceed to trial in personal injury matters?

PETER WILLIAM AGNEW v C.E BARTLETT [2009] VCC 0110

 

I came across a matter from Australia, Victoria whilst doing capacity research and found it interesting to note that in terms of the Australian Accident Compensation Act a plaintiff shall not claim compensation for personal injury for pain and suffering and/or loss of earning capacity if the injury is not "very considerable" It further needs to be permanent and likely to persists in the foreseeable future and will last and not mend or repair or at least not to any significant extent. The plaintiff has to further establish a loss of earning capacity of more than 40% by comparing after injury earning with before scenario after suitable training (being hardening or retraining).

 

It is only once this has been established on an application procedure that the plaintiff is then allowed to proceed to trial to proof the quantum. It seems to be a very good way in which to reduce legal costs overall and to weed out claims early on that are not worth the disbursements that would be expended on it. It would certainly free up time in the courts.

 

What I found interesting though was the difference that is clearly present in that of a loss of productivity versus a loss of earning capacity which is often used interchangeably in our case law and day to day dealings with each other in negotiations. I have always maintained that their is a difference between not having the capacity to do the work and not being productive to do the work and feels that their should be such a distinction and that a lack of capacity should translate into compensation which could conveniently be correlated with a contingency deduction that should be in line with the amount of loss of capacity rather than looking at a pure economic loss in terms of hours in the day or increasing the general damages as per the much reviled Deysel case.

 

The Collins Thesaurus Dictionary definition of productivity is "output" but also productions, capacity, work rate, yield and efficiency whereas the definition for capacity is "ability" and also gift, genius, capability, aptitude, aptness, competence and competency. If one looks at it in terms of this meaning then my interpretation would be that productivity requires expending energy (of a physical nature) so to speak whereas capacity requires capability (both physical and psychological).

 

As such you would have a lack of productivity if it requires more energy to do it but a lack of capacity if you simply do not have the ability to do it. Practically this would mean that in the more common injuries, say a rotator cuff injury, that if a plaintiff is simply slower at doing something and has to expend more energy to do it but you can still perform the function, I would suggest a lack of productivity but if you are not capable of lifting your arm above your head 70 times a day you no longer have the capacity to do so and the question is then if you can retrain yourself to do so in future in terms of the Australian model.

 

This seems a more fair and reasonable way in determining a loss in personal injury matters  if one keeps in mind the "once and for all" rule as the long term consequences of not having the capacity to do something would certainly have an impact on one's life. It would be worthwhile arguing and may translate into a fairer way to estimate compensation than on pure pecuniary loss alone and would take the guess work out of matters (Bailey) if a particular percentage loss of capacity is determined.

 

The AMA guidelines may be a good starting point, if a plaintiff has a certain percentage of whole person impairment and this translates directly into a physical impediment in his field of work and as such his capacity to perform such work then this may be a useful tool. An 8% WPI on a arm injury may indicate a 8% loss of capacity to use that arm in future and as such and 8% loss of ability to perform the work translating into an 8% pecuniary loss but alas that would be too easy and would not take into consideration the view of many other experts on the matter. The WPI of a person is however a good starting point to determine capacity.

 

The distinction between capacity and productivity should be considered and duly dealt with by our practitioners and our courts to ensure fair and reasonable compensation for personal injury victims and it would be worthwhile to get experts to utilise the guidelines for a determination on all personal injury matters so as to give defendants a clear picture of the plaintiff's loss.

QUANTIFICATION OF LOSS OF INCOME IN SELF EMPLOYED INDIVIDUALS

QUANTIFICATION OF LOSS OF INCOME IN SELF EMPLOYED INDIVIDUALS

 

As we calculate loss for individuals on a payslip for the most part, bank statements and further collateral information, we should not loose sight of the fact that self employed individuals may in their tax returns list legitimate company expenses but the benefits that the individual derive from his business would include such company expenses. Trying to predict the business growth of an individual in a self employed capacity versus that of a salaried employee whose wages are stable and have a clear history, for the most part, statistically in any event, is in itself problematic.

 

To compensate the individual adequately the fraction of individual or family benefit that the plaintiff derived from such a benefit should be taken into consideration when estimations on income is done.

 

A benefit to the individual and family could be salaries paid to the spouse and children and thereby inflating the tax burden of a company and reducing the income of the individual which may be real or may be at a level much higher than the norm. It is advisable to compare this income with that of the standard levels of income as determined by PE Corporate services alternatively by the Patterson levels commonly used and any unnaturally inflated income should be attributed to the individual (plaintiff)

 

Many types of such business expenses that add benefit exist. A good example is a business premises that is also the home of the business owner. The business expenses deducted for power, bond, telephone etc. may all directly benefit the home owner and would dissipate or disappear should the business fail or no longer perform at sub optimum level after the incident.

 

The amount of benefit that an individual derives from after tax benefits should also be taken into consideration for e.g. the purchase of a business computer that is taxable but used for personal use as well. A telephone or Wi Fi service to name but a few and not to mention the company car. Depreciation of assets on a balance sheet can also proof to be problematic as the real market value may differ.

 

It also needs to be taken into consideration that an individual who can no longer perform the work of a sole proprietor may be capable of selling some of the assets of the business after the incident and derive a interest bearing benefit from it. This point of view would certainly have to be argued as the plaintiff is unlikely to accept such a scenario in settlement negotiations.

 

In estimating the individual business owners profits and as such his income it may be easier to calculate the loss by placing the individual in a position of another salaried employee doing the same job and deriving the same benefits rather than trying to decipher complicated accounting statements. This can however be problematic in instances where the individual is reliant on his goodwill or the special business skill he may have derive from his years of being in the industry and a replacement may not be possible. 

 

All in all, determining earning capacity for a self employed individual needs to take place only after careful consultation with the client, forensic auditor and the actuary.

 

economica - Issues in Loss of income calculations for self employed individuals by Scott Beesley