Mungo Soggot
An extraordinary legal decision involving a controversial lawyer lies behind the case of acid- burn victim Bernadette Gibson, which has provoked an uproar over damages awards by the supreme court.
The attorney who represented Gibson, Peter Soller, is an unrehabilitated insolvent who specialises in championing the causes of victims of medical negligence. She has probably been landed with a R400 000 bill for costs as a result of what is regarded by some in legal circles as a reckless pursuit of a multi-million rand settlement.
Soller was also involved in the 1992 inquest into hospital drips which were alleged to have injured children. He represented the parents of several babies who were allegedly damaged by the drips at various clinics. At the inquest, Soller pitted himself against senior advocates representing the drip manufacturer, Sabex, and the clinics. He failed to establish they were liable.
The row over the Gibson case is particularly disturbing because it is an early instance of an attorney claiming a right of appearance before the supreme court. Some would see it as justification of warnings by some members of the Bar that attorneys are not equipped for advocacy.
Gibson, who suffered severe acid burns to her vagina at the hands of her negligent gynaecologist in September 1992, is now in danger of having to pay up to R500 000 to cover all the legal costs of a month- long trial — a far cry from the massive R3,2- million Soller was demanding.
It has emerged that she was offered an out-of-court settlement far higher than the R133 000 awarded to her by the supreme court, but she and Soller decided to turn it down. For legal reasons, the figure cannot be printed.
Gibson had no chance of being awarded substantial damages for loss of future earnings — the most important slice of any damages award —because she returned to work shortly after her ordeal. Her evidence that she was able to have sex a couple of months after the event also stymied her chances of getting a substantial damages award on those grounds.
Gibson’s only chance of a substantial award was for pain and suffering. But South African damages awards for pain and suffering rarely exceed R100 000 — and only then in such cases as those of paraplegics whose lives are ruined by their disabilities.
Gibson told the Mail & Guardian this week that she had expected to get at least R700 000. But even this figure would have catapulted her far from the world of South African case law.
Soller told the M&G that Judge J Claasens had not been obliged to stick to precedent and could have boldly awarded a heavier, United States-style damages award. He said that as doctors stuck together in South African medical malpractice cases the deck was heavily stacked against victims, so judges had to break new ground.
The supreme court will only decide on costs when Soller has finished preparing his appeal, but it is likely to award them against Gibson. Soller denied these would amount to as much as R500 000 as Gibson won the costs in the first phase of the battle when the doctor admitted negligence. But no evidence was led in that phase so Gibson is unlikely to get more than R12 000. Lawyers for the defendants estimate the costs for both sides for the rest of the trial will come to at least R400 000.
Half-way through the trial, Soller fired his advocate and took over the job of pleading himself. Shortly before this, he pocketed R100 000 of a R130 000 interim payment from the defendant, which had been earmarked for Gibson’s psychiatric expenses. At a meeting with the judge president, the defendant, gynaecologist Joshua Berkowitz — who had already admitted negligence — agreed to Soller’s request for the interim payment.
Under cross-examination during the case, Gibson confirmed she had been upset by Soller’s decision to take the lion’s share of her “interim payment”. Soller had told Gibson the meeting had taken place behind his back. But it emerged from evidence that Soller had in fact forgotten to go the meeting and had been telephoned with a reminder by the judge president half-way through it.
Berkowitz’s counsel, Martin Luitingh, also grilled Gibson over whether she knew that at an early stage in the trial Soller had decided to increase the damages claim to R3,2-million from R700 000. Gibson’s mother, Lorraine Zacki, had testified earlier that “we” had not known of Soller’s decision to increase the damages claim. Gibson denied that the “we” referred to her.
“I see, so when she said `we’, who do you think she was referring to?” Luitingh asked. “I do not know,” said Gibson.
Soller also took the unusual step of calling the defendant as a witness — a move which appeared to backfire. Berkowitz testified that, contrary to popular perceptions, he had not poured undiluted acid into Gibson’s vagina, but had applied it on a piece of cotton wool.
Another surprising aspect of Soller’s handling of the case was that he submitted Gibson’s medical bills to court at different stages of the trial, instead of assembling them beforehand. Once the bills had been sorted out – — they were found to include duplicates — they totalled R19 000, instead of R85 000 claimed by Soller.
Towards the end of the trial Soller asked the judge to award damages for stress headaches. The defendant objected, saying this was impossible as Soller had not called a neurologist to give the relevant evidence. It appears Soller had forgotten to do so, as both sides had previously agreed in principle that Gibson was entitled to damages for headaches.
At one stage, Soller tried to admit as evidence a video he himself had taken of Gibson’s genitals. The defendant objected, saying a doctor should have done this.
Soller has in the past been “blacklisted” by the Bar Council for not paying advocates. The blacklisting has been lifted, but he is now obliged to pay advocates in cash.