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The common law relating to curators was preserved by the Mental Disorders Act 38 of 1916 repealed twice and currently regulated by the Administration of Estates Act 66 of 1965.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.

Choosing the right expert in a medical negligence case

DE REBUS March 1st, 2012

‘How do you ensure that the opinion of your expert is favourably considered?’

By Maud Letzler

As the sun sets on personal injury law as we know it in South Africa due to the demise of road accident claims, counsel and attorneys will be confronted with an increase in medical malpractice matters.

Medical negligence claims have always been present in South Africa, but in the past insurers were happy to settle most matters quickly and quietly to avoid incurring unnecessary costs and to save the reputation of the doctor concerned. As renewed financial pressure will be placed on the resources of insurers, plaintiffs may find themselves having to fight harder to obtain a settlement or a favourable outcome in court, and herein lies the crux of the matter. No one can prove a medical negligence case, although some certainly try to, without expert medical opinion. However, with the variety of fields that may confront a legal practitioner, he may find himself swimming upstream.

Doctors in South Africa, as in other parts of the world, are notoriously reluctant to testify against each other, and medico-legal experts often find themselves on the outside of the fraternity being reviled for what is essentially a necessary service to mankind.

The medical profession, like any other, should be subject to checks and balances, and without doctors willing to give opinions in legal matters the rights of parties may be severely prejudiced.

The most dangerous scenario for any doctor would be to come up against a plaintiff who is litigating for the sake of it, that is, with his heart and not his head.

It is essential for practitioners who plan on moving from motor vehicle accident (MVA) work to medical malpractice to realise that the database of experts they have built up over the years to assist them in fighting for justice may now need to be revised. They will need an expert in almost every field of practice and, as will be illustrated below, will require working doctors and not academics in most cases.

Trying to find a suitable expert a couple of months before trial will be fruitless as it will require much persuasion to convince a practising specialist to give up his time to testify against a colleague, especially in a field that may only have a handful of specialists.

It may be prudent to obtain not just the services of an expert in the particular field, but also an opinion at the onset of the matter as it may save everyone a lot of money.

Courts and expert opinion

South African courts apply a test identical to that applied in most other common law jurisdictions to determine the weight to be attached to expert evidence in cases involving medical negligence.

The test was formulated by the Supreme Court of Appeal (SCA) in Michael and Another v Linksfield Park Clinic (Pty) Ltd and Another 2001 (3) SA 1188 (SCA) at para 34. The court held:

‘In the course of the evidence counsel often asked the experts whether they thought this or that conduct was reasonable or unreasonable, or even negligent. The learned judge was not misled by this into abdicating his decision-making duty. Nor, we are sure, did counsel intend that that should happen. However, it is perhaps as well to re-emphasise that the question of reasonableness and negligence is one for the court itself to determine on the basis of the various, and often conflicting, expert opinions presented. As a rule, that determination will not involve considerations of credibility but rather the examination of the opinions and the analysis of their essential reasoning, preparatory to the court’s reaching its own conclusion on the issues raised.’

In this particular case the experts were not asked, nor purported, to express a collective or representative view of what was or was not accepted as reasonable in a South African specialist anesthetist practice in 1994. The court expressed its frustration that the experts called did not have a ‘collective or representative opinion’ to determine how a reasonable anesthetist would have reacted in the same circumstances. It also expressed concern that the primary function of the experts called was ‘to teach’.

It found that there was an ‘absence of evidence’ of what practice prevailed in the particular field and ‘[t]hat being so, what is required in the evaluation of such evidence is to determine whether and to what extent their opinions advanced are founded on logical reasoning’. The court also referred to the United Kingdom House of Lords decision in Bolitho v City and Hackney Health Authority [1998] AC 232, in which the court stated: ‘[T]he court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of opinion that the defendant’s treatment or diagnosis accorded with sound medical practice.’ The court further held that it must be satisfied that such opinion has a ‘logical basis’, in other words, that the expert has considered comparative risks and benefits and has reached ‘a defensible conclusion’ (at 241G-242B).

It further went on to state that even in cases where the professional opinion held that overlooking an obvious risk is not negligent, the defendant can still be held liable (at 242H). The court further stated that courts have to rely on expert opinion to make an assessment of medical risks and benefits and, as such, the court would not be capable of making clinical judgments without the assistance of medical experts. ‘It is only where a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide the benchmark by reference to which the defendant’s conduct falls to be assessed’ (at 243A – E).

This essential difference between the scientific and the judicial measure of proof was aptly highlighted by the House of Lords in the Scottish case of Dingley v The Chief Constable of Strathclyde Police 2000 SC (HL) 77, in which the following warning was given:

‘One cannot entirely discount the risk that by immersing himself in every detail and by looking deeply into the minds of the experts, a judge may be seduced into a position where he applies to the expert evidence the standards which the expert himself will apply to the question whether a particular thesis has been proved or disproved – instead of assessing, as a judge must do, where the balance of probabilities lies on a review of the whole of the evidence.’

The Western Cape High Court judgment in Kosana v MEC for Health (WCC) (unreported case no 9230/2005, 23-1-08) (Erasmus J) elaborated on this further. The court referred to a passage from the Appellate Division judgment in Van Wyk v Lewis 1924 AD 438 at 444 and stated at para 36:

‘In estimating the level of skill and diligence possessed and exercised at the time by members of the branch of the profession to which a specialist belongs (the responsible body of medical men skilled in the particular art), “the evidence of qualified surgeons or physicians is of the greatest assistance”.’

The court then quoted from the following passage in Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634 at 639:

‘I have to say that a judge’s “preference” for one body of distinguished professional opinion to another also professionally distinguished is not sufficient to establish negligence in a practitioner whose actions have received the seal of approval of those whose opinions, truthfully expressed, honestly held, were not preferred. … For in the realm of diagnosis and treatment negligence is not established by preferring one respectable body of professional opinion to another. Failure to exercise the ordinary skill of a doctor (in the appropriate speciality, if he be a specialist) is necessary.’

The court went on to quote from the judgment in the Bolitho case, where it was held that:

‘The assessment of medical risks and benefits is a matter of clinical judgment which a judge would not normally be able to make without expert evidence. As the quotation from Lord Scarman makes clear, it would be wrong to allow such assessment to deteriorate into seeking to persuade the judge to prefer the one of two views, both of which is capable of being logically supported. It is only where a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide the benchmark by reference to which the defendant’s conduct falls to be assessed.’

In Honisz v Lothian Health Board [2006] CSOH 24, at para 39, the Scottish court explained, relying on the judgment in the Bolitho case, that:

‘[As] a general rule, where there are two opposing schools of thought among the relevant group of responsible medical practitioners as to the appropriateness of a particular practice, it is not the function of the court to prefer one school over the other (Maynard v West Midlands Regional Health Authority, Lord Scarman, p 639F-G). Secondly, however, the court does not defer to the opinion of the relevant professionals to the extent that, if a defender led evidence that other responsible professionals among the relevant group of medical practitioners would have done what the impugned medical practitioner did, the judge must in all cases conclude that there has been no negligence. This is because, thirdly, in exceptional cases the court may conclude that a practice which responsible medical practitioners have perpetuated does not stand up to rational analysis (Bolitho v City and Hackney Health Authority, Lord Browne-Wilkinson, pp 241G-242F, 243A-E). Where the judge is satisfied that the body of professional opinion, on which a defender relies, is not reasonable or responsible he may find the medical practitioner guilty of negligence, despite that body of opinion sanctioning his conduct.’

Similarly, the Supreme Court of Singapore stated in JSI Shipping (S) Pte Ltd v Teofoongwonglcloong (a firm) [2007] SGCA 40 at paras 51-53 that:

‘The Bolitho addendum merely affirms the supervisory judicial responsibility to ensure, at a minimum, that the expert opinion is defensible and grounded in logic and plain common sense. This non-delegable adjudicatory mandate to assess the appropriate standard of care cannot be seriously denied. In this context, we also find the observations of Moffitt J in Pacific Acceptance Corporation Ltd v Forsyth (1970) 92 WN (NSW) 29 (Pacific Acceptance) at 75, cited by Ang J in Gaelic Inns ([34] supra ) at [11], particularly pertinent:

“When the conduct of an auditor is in question in legal proceedings it is not the province of the auditing profession itself to determine what is the legal duty of auditors or to determine what reasonable skill and care requires to be done in a particular case, although what others do or what is usually done is relevant to the question of whether there had been a breach of duty.

It follows, if the auditing profession or most of them fail to adopt some step, which despite their practice was reasonably required of them, such failure does not cease to be a breach of duty because all or most of them did the same.”

When assessing whether a professional has been negligent, courts will normally use as their benchmark the common practice within the relevant profession. However, notwithstanding that an expert witness may have considerable professional experience and knowledge about the reasonableness of prevailing standards, the court retains the supervisory responsibility to condemn an unjustifiably lax, albeit common, practice as negligent: See Edward Wong Finance Co Ltd v Johnson Stokes & Master [1984] AC 296.

In the light of the foregoing, even if the respondent’s expert’s evidence of the respondent’s expert about prevailing standards is accepted, a pertinent consideration is whether these standards fail the Bolitho addendum.’

In short, a faithful application of the Bolitho test, which has been endorsed by the SCA, as well as courts in other jurisdictions, would mean that a court must usually accept the views of a respected body of experts in cases involving medical negligence. The House of Lords, in the Bolitho decision, explained that there are only rare cases, that would be ‘very seldom’, where a judge should reach a conclusion that the views genuinely held by a competent expert are unreasonable and should be rejected.

Conclusion

The question for legal practitioners remains: How do you ensure that the opinion of your expert is favourably considered? If one looks at the cases above, it seems that legal practitioners may find themselves in an untenable situation if their expert’s opinion is not seen to carry much weight and the defendant, or the plaintiff for that matter, can be unsuccessful as a result.

It is thus imperative that medical experts are evaluated not just for their theoretical knowledge in a particular area of speciality but also for any hands-on experience they may have in practice.

It will be dangerous to use one expert for all matters. If a particular situation requires knowledge of practice rather than theory, then using an academic may prove fatal to the case.

Personal injury attorneys specialising in MVA matters have over the years become well acquainted with experts in their field of speciality and would be able to choose an expert in the particular area according to their needs.

Medical negligence is a whole new ball game as it deals with numerous specialities and attorneys may find themselves confronted with the great unknown when it comes to experts in a particular field.

If an attorney is serious about practising in this very challenging field then he must make sure that his database of experts gets attention early on. Attorneys should ensure that the nature of their relationships with their experts is such that they will be willing and able to assist them should the need arise.

Above all, attorneys should evaluate their claims early on to ensure that only the most meritorious matters proceed to trial.

 Maud Letzler LLB (Unisa) is an advocate in Johannesburg.

 This article was first published in De Rebus in 2012 (March) DR 34.