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[2016] ZAWCHC 164
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City of Cape Town and Others v K (17436/09) [2016] ZAWCHC 164; 2017 (1) SA 593 (WCC) (1 June 2016)
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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
REPORTABLE
CASE
NO: 17436/09
In
the matter between:
THE
CITY OF CAPE
TOWN
First
Applicant/Defendant
TIMOTHY
VICTOR PAUL
FERUS
Second
Applicant/Defendant
MARIO
BRIAN
BATIST
Third
Applicant/Defendant
and
J
K
Respondent/Plaintiff
Heard: 19 May 2016
JUDGMENT
DELIVERED ON 1 JUNE 2016
SHER,
AJ:
[1] This is an
interlocutory application in terms of Rule 36 for an Order that the
respondent be directed to submit herself to a
further medical
examination before a psychiatrist, which examination is to take place
in three sessions of two hours each.
The applicants also seek
an Order that the psychiatrist be permitted to canvass the
circumstances of the events that transpired
on the date
of “the
incident”
with the respondent, during the course of such
examination.
[2] The reference to
“
the incident”
is a reference to the events which
occurred on the afternoon of 29 December 2006, almost 10 years ago.
At that time, the
respondent was a Captain in the SA Police Services
in Somerset West, where she was employed as an accountant.
[3] Whilst she was
in a motor vehicle at a red traffic light in Gordon’s Bay on
that day, she became involved in an altercation
with members of the
first applicant’s Metro Police Services, including second and
third applicants. She was arrested in front
of her two young
daughters, who were 3 and 1 years old at the time and who were in the
vehicle with her, and taken forcefully to
the police station.
She claimed that in the process she was abused and humiliated and was
physically manhandled, and sustained
certain bodily injuries,
including bruising to her wrists and contusions to her upper back.
According to a psychiatrist Dr
C George (who assessed the respondent
at the instance of the applicants), the arrest was severely traumatic
for the respondent,
the more so because she had her two young
children with her at the time and was concerned not only for her own
safety, but also
for theirs, as she became separated from them. The
respondent was also pregnant at the time and pursuant to this
incident she miscarried.
Dr George found that at the time respondent
experienced severe anxiety, panic, and ‘fearfulness’, and
subsequent thereto
she had ‘flash-backs’ and nightmares,
manifested phobic symptoms, became hyper-vigilant and lost all
interest in her
personal life.
[4] In March 2007,
some 3 months after the incident, she was formally diagnosed as
suffering from a post-traumatic stress disorder
as well as a major
depressive disorder, by psychiatrist Dr P Strong. This
diagnosis followed on several sessions which respondent
had with Ms E
Morkel, a clinical and counselling psychologist, and treatment and
medication she received at the hands of another
psychiatrist, Dr
Verster. Later in 2007 she also consulted another counselling
psychologist Mr A Pieterse, as well as psychiatrist
Dr F
Mohideen-Botes, and during 2008 she was also treated by psychiatrist
Dr White. She was unable to return to work as a police
officer due to
the persistence of these conditions and was medically boarded at the
end of 2008.
[5] During September
2009 respondent instituted an action against the applicants in which
she claimed damages in an aggregate amount
of R1 150 000.00.
Included in the heads of damages were claims for estimated past and
future medical expenses,
loss of earnings (both past and future) and
general damages. In December 2012 respondent filed amended
particulars of claim
in which she sought increased damages for loss
of earnings in an amount of R10.7 million, and increased amounts in
respect of all
the other heads of damages. A trial date has not yet
been allocated to the matter, and it is still subject to the
provisions of
Rule 37(8), in terms of which the pre-trial process is
being managed by a judge. The Registrar will consequently only
allocate
a date once all the directions of the court have been
complied with in regard to any outstanding procedural requirements
and the
matter has been certified trial-ready.
The various
assessments and the events leading up to the application:
[6] With a view to
becoming trial-ready and in accordance with common practice followed
in matters such as these, respondent has
been examined and assessed
by a number of medical practitioners and other professionals, both at
the instance of the defendants
(the applicants herein), as well as at
the instance of her own legal representatives.
[7] Apart from Dr C
George who assessed her and filed a report dated 18 June 2013,
respondent was also assessed at the applicants’
instance by a
clinical psychologist Mr L Loebenstein, who prepared a report dated
28 September 2013. In February 2014, clinical
psychologist Mr L
Awerbuck assessed her at the request of her own attorneys and filed a
report, and in July 2014 he filed a supplementary
report.
Subsequent thereto Mr Loebenstein conducted a follow-up assessment of
the respondent at the instance of the applicants,
and prepared a
supplementary report dated 14 September 2014.
[8] Curiously,
respondent did not get asked to return to Dr C George for a follow-up
assessment, which is the standard practice
that is adopted in these
matters. Instead, a notice in terms of Rule 36(2) was served on her
attorneys calling upon her to submit
to a medical examination before
another psychiatrist, Dr K Czech, on 21 September 2014.
According to a note filed by
Dr Czech, he performed a “
full”
psychiatric assessment of the respondent over a 2-hour period on that
day. However, Dr Czech did not file a report in the
matter and
withdrew therefrom. This followed after a letter was addressed
to the applicants’ attorneys by the respondent’s
attorneys, in which they expressed strong disapproval of what
allegedly occurred during the interview which Dr Czech had with
respondent. In this regard it was alleged that Dr Czech became
irritated with the respondent (when she was unable to name
all the
doctors and psychologists she had seen over the years, and in what
order, and all the medication she had been prescribed),
and when she
was unable to remember certain details of the incident which had
occurred some 7 years earlier. It was further alleged
that Dr Czech
‘cross-examined’ respondent in regard to her husband’s
circumstances, was discourteous to her and
otherwise acted in a
manner which was not objective and impartial. Respondent’s
attorneys said that respondent experienced
the interview as a
traumatic and stressful experience and by the end thereof she was
severely distressed, to the point that she
fled from the venue in a
hysterical state and would not communicate. They indicated
that, as a result, they had instructions
to lay a complaint of
professional misconduct against Dr Czech. Not surprisingly,
pursuant to this letter applicants’
attorney recommended to Dr
Czech that it would be in the best interests of all the parties
concerned if he withdrew from the matter,
which he duly did.
[9] On 6 March 2015
applicants’ attorney addressed a further correspondence to the
respondent’s attorney in which he
indicated that in the light
of Dr Czech’s withdrawal, he had made arrangements that one Dr
P Cilliers, a psychiatrist in
practice in Cape Town, should examine
the respondent instead. Although it appears that respondent was
amenable to attending
upon Dr Cilliers for such further examination,
various appointments which were made with her had to be re-scheduled
on a number
of occasions.
[10] On 23 March
2015 applicants’ attorney received a letter from the
respondent’s attorney in which he was advised
that respondent
was no longer prepared to subject herself to any further medico-legal
examinations, given that she had already
been examined by two
psychiatrists and a clinical psychologist at the instance of the
defendant.
[11] Notwithstanding
respondent’s objections to the further proposed examination
before Dr Cilliers, applicants’ attorney
caused yet another
notice to be issued in terms of the provisions of Rule 36(2) formally
calling upon her to submit to such an
examination on 20 May 2015.
In response thereto respondent’s attorneys reiterated that
respondent refused to attend
on any further “
medico-legal
reports”
(sic) with a psychologist or a psychiatrist, and
they pointed out that it seemed as if the applicants were on a “
wild
goose chase”
to obtain a report from a specialist who would
‘assist’ them in their defence, rather than a report
which would assist
the court. Consequently, respondent’s
attorneys indicated that any application seeking to compel respondent
to undergo
any further examination would be opposed. Such an
application was duly launched by the applicants in June 2015.
[12] A few days
before the application was due to be heard the parties were summonsed
by the Judge-President and were urged to resolve
the impasse.
Although respondent was very reluctant to accede thereto she was
persuaded by her counsel to attend upon the
further psychiatric
examination with Dr Cilliers, on the understanding that this would be
the last such examination at the instance
of the applicants, in order
that the matter could be finalised. Given what had allegedly
transpired during the interview
with Dr Czech, respondent’s
attorney assured the respondent that he would be present at the
consultation with Dr Cilliers,
and that he would personally ensure
that Dr Cilliers was briefed with a full set of papers including
copies of the reports of all
the other experts, so that it would not
be necessary for Dr Cilliers to go into the detail of the events
pertaining to the incident
which occurred in December 2006.
Pursuant to this undertaking respondent’s attorney addressed a
letter directly to
Dr Cilliers whereby he enclosed a copy of all the
relevant medico-legal reports, as well as the papers in the
application to compel.
In his letter, respondent’s
attorney remarked as follows: “
U sal
aflei dat die hele aangeleentheid baie traumaties was en nog steeds
is vir ons kliënt en is dit ons kliënt se versoek
(indien
moontlik) om haar nie weer deur die hele traumatiese voorval te vat
nie”
.
[13] In the light of
the reassurances she received respondent duly consented to an Order
which was granted by agreement between
the parties on 26 October,
directing her to submit to a medical examination before Dr Cilliers.
[14] It is apparent
from an ordinary reading of the terms of the Order that it was
envisaged that respondent would be assessed
on one further
occasion by applicants’ psychiatrist.
[15] On 1 December
2015 respondent duly attended on Dr Cilliers’s rooms in the
company of her attorney. Dr Cilliers informed
them that he would not
allow respondent’s attorney to sit in on the consultation.
As a result respondent did not want
to proceed therewith, but after
her attorney contacted her counsel they managed to prevail upon her
to allow the examination to
proceed in his absence. It is also
apparent that Dr Cilliers did not read any of the medico-legal
reports which had been
sent to him by respondent’s attorney,
before the consultation, and it seems as if he treated this as an
instance where he
was to provide a general opinion which was not
confined to any specific issue.
[16] Some 45 minutes
into the consultation Dr Cilliers began examining respondent in
relation to the incident, and whilst she was
recounting the
circumstances thereof she ‘broke down’, and he was unable
to console her. He thought it was in
her best interests to stop
the assessment and to resume on another date. Later that day his
practice manager sent an e-mail to
applicants’ attorney in
which it was indicated that Dr Cilliers needed to see the respondent
for a further three sessions
of two hours each, which should take
place in the same week. Applicants’ attorney forwarded
this correspondence to
the respondent’s attorney and requested
that provisional arrangements be made for such further sessions.
Respondent was not
amenable to agreeing thereto.
[17] It is these
events which prompted the launching of the instant application.
Against this background, I turn to consider
the provisions of the
Rule that are of application in this matter.
The origins and
mechanism of the relevant provisions:
[18] Prior to the
enactment of the Uniform Rules in 1965, defendants in actions for
damages for compensation resulting from bodily
injuries had practical
difficulties in obtaining information pertaining to the assessment of
the plaintiff’s injuries and
damages claimed, from independent
sources. Aside from certain statutory exceptions, defendants
had no means whereby they
could demand that a plaintiff should submit
herself to a medical examination, and in practical terms the only way
of obtaining
some of the necessary information was limited to a
request for further particulars or discovery.
[1]
Rule 36 was consequently enacted to deal with these difficulties. In
Durban City Council v Mndovu
[2]
it was held that the purpose of the sub-rules pertaining to
examinations was to avoid a litigant being taken by surprise
(in
relation to matters in respect of which he would ordinarily be unable
to prepare his case effectively before trial), so that
he could meet
the case put up his opponent.
[19] Rule 36(1)
provides that any party to proceedings in which damages or
compensation in respect of alleged bodily injury is claimed,
shall
have the right to require any party so claiming (and whose state of
health may be relevant for the determination of such
damages or
compensation), to submit to medical examination. The machinery
for giving effect to such submission is set out
in sub-rules (2), (3)
and (5).
[3]
In broad terms, these sub-rules provide that any party desirous of
requiring another party to submit to a medical examination
is
required to deliver a notice specifying the nature of such
examination, the person or persons by or before whom, and the place
and date at which, such examination shall take place.
[4]
The party being examined is expressly allowed, in terms of the Rule,
to have his/her own medical advisor present during the
examination,
and the reasonable costs to be incurred in attending such examination
(including travelling costs and loss of salary,
wages or other
remuneration), must be tendered by the requesting party.
[5]
[20] Rule 36(5)
provides that if it appears from any medical examination which was
carried out, that any “
further”
medical
examination by “
any
other
person
is
necessary or desirable”
(my emphasis), for the purpose of
obtaining “
full”
information on matters relevant
to the assessment of the damages claimed, “
any
”
party may require “
a second and final”
medical
examination to be carried out. Sub-rule (8) in turn
provides that any party so causing any examination to be
made shall
cause the person “
making”
the examination to
provide a full report, in writing, of the results thereof and the
opinions that he/she formed as a result thereof
[6]
and is obliged to furnish any other party with a complete copy of
such report, upon request.
[7]
[21] Rule 36(9)
provides that no party shall
[8]
be entitled to call as a witness any person to give evidence as an
expert unless he shall have delivered notice of intention to
do so
within the prescribed period,
[9]
and has delivered a summary of such expert’s opinion and his
reasons therefor, no less than 10 days before the trial.
[10]
In the light of this sub-rule it has become standard practice for the
full report which is obtained from any medical expert commissioned
by
a party, to be annexed as is, to any notice which is given in terms
of Rule 36(9)(b), instead of just a summary. Because of
the
peremptory terms in which the Rule is phrased ie that the evidence of
any
expert which a party wishes to call shall not be allowed
unless a summary thereof is provided, in practice the provisions of
sub-rule
(5) are ignored, and parties commonly call upon claimants to
undergo repeated follow-up assessments, even by experts who are not
medical practitioners and even where the assessments involve
examinations which are not ‘medical’.
[22] There are a
number of anomalies evident in the Rule. In the first place,
although the Rule is titled “
Inspections, Examinations and
Expert Testimony
” as far as the examination of persons is
concerned it only deals with “
medical
”
examinations, and it is only in respect of such examinations that a
party may be required to submit. Unlike the wording
of the
equivalent Rule in the Magistrate’s Court,
[11]
such an examination need not be carried out by a registered medical
practitioner, and it is the nature of the examination that
determines
whether it falls within the ambit of the Rule. On the face of
it the Rule would not apply in regard to examinations
to be carried
out by a whole host of experts who are frequently commissioned to
draw up ‘medico-legal’ reports in claims
for damages
arising from bodily injuries, such as occupational therapists,
remunerations experts, mobility experts, industrial
psychologists,
accountants and actuaries. However, as I have pointed out
because the provisions of sub-rule 36(9) provide
that no party shall
be entitled to call as a witness any person to give evidence as an
expert unless it has delivered notice of
its intention to do so, and
has filed a summary of such expert’s opinions and his reasons
therefor, reports from these and
other professionals are regularly
obtained and filed, even though on the wording of the Rule as it
stands, there is no duty on
the part of the party who is subject to
examination before such professionals, to submit thereto. There
is however no question
that the examination and interrogation to
which a party can be subjected by such other ‘non-medical’
experts would
in many instances constitute the self-same sort of
examination or interrogation (if not a more rigorous one at times),
than that
to which the party may be subjected to in a ‘medical’
examination in terms of the Rule.
[23] In the second
place, whilst provision is made expressly for a judge to determine
the conditions upon which any initial proposed
examination is
contested, there is no similar provision allowing for intervention by
a court in regard to any subsequent examination
that may take place.
In this regard, sub-rule (5) simply provides that a “
second
and final
” medical examination may be carried out at the
instance of a party, provided the requirements of the Rule are met.
Given the inexorably slow process of litigation from issue of summons
to the hearing of a matter before a court, in numerous instances
involving many years, it is common practice for parties to obtain
so-called follow-up or supplementary reports from their experts
on
more than one occasion. Were a party that is to be examined to
elect to refuse to submit to any such examinations beyond
the second
one however, it appears that on the strict wording of sub-Rule (5) he
or she would be entitled to adopt such a stance.
The provisions
and the parties’ rights:
[24] It was
recognised as early as 1967 that the provisions of the Rule under
discussion constitute a “
drastic invasion”
of a
party’s rights.
[12]
In
Goldberg v Union and South West Africa Insurance Co Ltd
,
[13]
Howie J (as he then was) held that it was not only a party’s
right to bodily privacy which was intruded upon, but also his/her
right as a party to pending litigation, to decline to divulge
evidence to anyone but his legal representatives and the Court which
was trying his action. What the Rule in effect obliged a party
to do was to subject himself, in advance, not only to a physical
examination, but also to questioning about medical issues which would
be canvassed at the trial. Howie J pointed out that
whereas the
doctor conducting the examination would have to question the examinee
in order to apprise himself of the relevant issues
including the
patient’s medical history, the injuries sustained and the
symptoms of which the claimant suffered, unless the
questioning was
fair an unrepresented claimant could well be prejudiced and there was
little, if anything, that he could do to
avoid such questioning and
his answers could be freely used against him should his testimony at
the trial be at variance with what
he had said during the
examination. Consequently, he held that a claimant should enjoy
the same protection which he would
enjoy in a court by having the
right to have his legal representative present during the
examination, in order to ensure that the
extra-curial questioning to
which he was subjected was fair and just.
[14]
He remarked further that although medical practitioners could
generally be relied on to perform an examination objectively
there
could be unfortunate instances of deviations from that standard and
in addition, it was “
distinctly possible for honest and
objective questioning unintentionally to develop from examination
into cross-examination whilst
in zealous pursuit of an appealing
point”
. In addition, unless controlled within the
appropriate spheres of enquiry, the questioning could also “
stray
onto the circumstances of the accident itself or economic
considerations not germane to the medical issues”
.
Should such questioning transgress the limits of what was proper or
relevant, it was “
not difficult to imagine an unrepresented
claimant….making unwarranted and ostensibly damaging
concessions which, had they
been made in the course of the trial,
could have been satisfactorily explained away or at least cast in
proper perspective”
.
[15]
[25] Given the
invasive effect which the provisions of the Rules thus have on a
party’s rights it has been held that they
must be interpreted
strictly,
[16]
and in giving effect to such a strict interpretation it must be
presumed that the legislature intended there to be “
as
little interference”
with a claimant’s rights as
possible.
[17]
[26] I have, in the
time at my disposal, not been able to locate a single reported
judgment in which the ambit of the Rule and how
it affects a party’s
rights in the post-constitutional era has been considered. The
provisions in question clearly
impact upon a number of fundamental
rights in the Bill of Rights, including the right to freedom and
security of the person (in
terms of s 12) and subsumed therein,
the right to bodily and psychological integrity,
[18]
which includes the right to security and control over one’s
body.
[19]
So too, the right to privacy,
[20]
which includes the right not to have one’s person “
searched”
[21]
and the right not to have the privacy of one’s confidential
communications infringed,
[22]
are also implicated, as is the right to dignity.
Human
dignity is listed as a primary foundational value in the
Constitution,
[23]
and the Bill of Rights provides that everyone has
the right to have their dignity respected and protected.
[24]
These rights all inter-link with one another. As Bishop and
Woolman point out
[25]
the right to bodily and psychological integrity often overlaps with
rights to dignity and privacy, and an invasion of a person’s
privacy has often been regarded
per se
as an impairment of a person’s
dignity.
[26]
The scope of the right to privacy is also closely linked to the
concept of personal identity.
[27]
At common law it is well established that a person’s right to
bodily integrity and autonomy entitles him to refuse
medical
treatment or assessment,
[28]
and subjecting a person to unauthorised medical procedures to which
he or she has not consented has been held to constitute an
invasion
of privacy.
[29]
[27] In
D v K
[30]
it was held that the constitutional right to privacy precluded a
court from invoking its inherent jurisdiction to order a person
to
undergo a blood test, against his will, in a paternity dispute.
[28] It is also
well-established in common law that the unauthorised disclosure of
private information about a person contrary to
a confidential
relationship (eg the relationship between doctor and patient) would
ordinarily also constitute a breach of privacy.
[31]
All of these rights are effected by the provisions of Rule 36(1) and
(5).
[29] The personal
rights referred to must be juxtaposed against s 34 of the
Constitution which provides that everyone has the
right to have any
dispute that can be resolved by the application of law decided in a
fair hearing before a court. In
DF Scott (EP) (Pty) Ltd v
Golden Valley Supermarket
,
[32]
the Supreme Court of Appeal held that the Rules of court are designed
to ensure a fair hearing, and as such they should be interpreted
in
such a way as to advance, and not reduce, the scope of the right to a
fair trial in terms of s 34. In
De Beer NO v
North-Central Local Council and South-Central Local Council and
Ors
,
[33]
the Constitutional Court remarked that:
“
The right to a fair hearing before a court lies at the
heart of the rule of law … Courts in our country are
obliged
to ensure that the proceedings before them are always fair.
Since procedures that would render the hearing unfair are
inconsistent
with the Constitution courts must interpret legislation
and Rules of Court, where it is reasonably possible to do so, in a
way
that would render the proceedings fair”
.
[34]
[30] Insofar as the
relationship between the Rules of Court and any limitations on
fundamental rights which are contained therein
is concerned, the
Constitutional Court has remarked that:
“
For courts to function fairly, they must have Rules that
regulate their proceedings … Of course, all these Rules must
be
compliant with the Constitution. To the extent that they do
constitute a limitation on a right of access to court, that
limitation
must be justifiable in terms of s 36 of the
Constitution. If the limitation claimed is justifiable, then as
long as
the Rules are properly applied there can be no cause for
constitutional complaint. The Rules may well contemplate that
at
times the right of access to a court will be limited. A
challenge to the legitimacy of that effect however, would require
a
challenge to the Rule itself. In the absence of such a
challenge the litigant’s only complaint can be that the Rule
was not properly applied by the court. Very often the
interpretation and application of the Rule will require consideration
of the provisions of the Constitution, as s 39(2) of the Constitution
instructs. A court that fails to adequately consider
the
relevant constitutional provisions will not have properly applied the
Rules at all”
.
[35]
[31] I am enjoined
when interpreting the provisions of the Rule in question, in the
context of the fundamental rights referred to,
to do so in a way that
promotes the values that underlie a society based on human
dignity,
[36]
and in a way which promotes the spirit, purport and objects of the
Bill of Rights.
[37]
[32] Neither of the
parties contended that the provisions of the Rule under discussion
were
per se
unconstitutional, but they were agreed that they
constituted material limitations of the fundamental rights I have
referred to.
Ms
Witten
, who appeared for the applicants,
drew my attention to the unreported decision of Tshiki J in the
matter of
Fabian Potgieter v The Road Accident Fund (ECD Case No
2416/05)
, in which, in a similar application to this, it was
contended that a notice which called upon the plaintiff to undergo an
examination
before a second psychologist commissioned by the
defendant was “
pertinent to the plaintiff’s cognitive,
executive, socio-economic and behavioural functioning”
[38]
and constituted an invasion of his constitutional rights, in
particular, his right to privacy. With reference to the
decision
in
Bernstein and Ors v Bester NO and Ors
,
[39]
Tshiki J pointed out that the right to privacy lay along a continuum
and the more a person inter-related socially with those around
him,
the more the amplitude of this right was reduced. As such, a
court was justified in applicable circumstances to limit
a claim to
such right in accordance with the interests of both the holder
thereof and those with whom the holder of such right
interacted.
Tshiki J was of the view that such an invasion of the right to
privacy “
is exactly what is contemplated by the wording of
Rule 36”
[40]
and he held that the provisions of the Rule could thus not be
‘avoided’ on the basis that they had the effect of
‘invading’
a claimant’s constitutional rights.
Consequently, he was of the view that it was imperative that an
examination be
conducted “
regardless of its
consequences,”
[41]
if to do so would be in the interests of justice.
[33] In my view, the
provisions of the Rule under discussion (at least those pertaining to
the compulsion of a party to submit to
medical examination), are
essential and necessary for the achievement of important public
policy objectives, in the interests of
the administration of
justice. In this regard, both the public at large and litigants
in a particular suit have an interest
in the resolution of disputes
before courts in a fair, expedient and cost-efficient manner.
Experience has shown that generally
(provided they are not abused),
the sub-rules allow for independent experts with the necessary skill,
experience and expertise
to report on the medical status of a party
and thereby inform not only the opposing party but the court as well,
of the nature,
ambit and extent of any bodily or mental injury which
a party may have suffered, to provide a diagnosis of any medical
condition
or ailment which may be found, and to venture an opinion in
regard to the prognosis of future recovery, if any, and the effects
of the injury, overall, on the body and psyche of the party
examined. The findings and opinions set out in these reports
impact directly on the quantification of the various heads of damages
claimed and are of immeasurable value in setting out, objectively,
those factors which may be relevant in regard to an assessment of the
general damages which are to be awarded for pain, suffering,
disability and such loss of the amenities of life as may have been
suffered. In addition, without the expert opinions of
the
relevant medical professionals in relation to issues of functional
impairment and permanent disability, it would not be possible
for
other experts such as industrial psychologists and actuaries to
compute the value of any claim for past and future loss of
earnings.
In order to obtain these opinions in the form of written reports it
is obviously necessary for the party in question
to be examined by
the practitioner or medical health professional concerned, and
without the necessary machinery to compel a party
to undergo such
examination and assessment, the underlying substratum of the Rule
would fall away, and the provisions of sub-rule
36(9)(a) and (b)
would be rendered nugatory. Experience has taught that the more
extensive and thorough the reports are,
the less likely it is that a
court will be required to make its own determination in respect of
medically related issues, including
issues such as what future
medical treatment and medication may be appropriate, and the costs
thereof, which are aspects in respect
of which a court does not have
the necessary knowledge and expertise. Without such
examinations and reports subsequent thereto,
the necessary
commonality between the parties in respect of such issues would not
be able to be defined, and opposing experts would
not be able to
apply their minds to whittling down the issues in dispute and
arriving at an agreement in respect of the impact
of an incident
which has caused injury or damage to a party’s body and/or
psyche, thereby limiting the length and breadth
of any trial which
may eventutate, and the parties would not be in a position to
evaluate the strengths and weaknesses of their
respective cases and,
based on these, to negotiate a fair settlement.
[34] In the
circumstances, in my view such limitations of a party’s rights
to bodily integrity, privacy and dignity as are
occasioned by the
application and enforcement of these Rules are thus clearly
reasonable and justifiable limitations in an open
and democratic
society based on freedom and equality, provided that a court is alive
to, and effectively regulates any abuses of
the Rule.
[35] In this regard,
as the court did in
Potgieter
, I too have had recourse to the
decision in
Bernstein,
[42]
albeit for different purposes. In that matter, the Constitutional
Court was faced with a challenge to the provisions of ss 417
and
418 of the (then) Companies Act
[43]
which allowed for any director or officer of a company that has been
wound up to be summonsed to appear at an enquiry before the
Master,
or a Commissioner appointed for this purpose by the court, to be
interrogated and to provide information concerning the
trade,
dealings, affairs or property of the company. It is trite that
the purpose of these provisions is to allow the liquidators
to
determine what the circumstances were which led to a company’s
demise, whether any mismanagement or depredations on the
company
occurred, and what the assets and liabilities of the company are, in
order that such assets may be recovered and the liabilities
discharged in the best interests of the creditors. A challenge
to these provisions on the basis that they violated a cluster
of
constitutional rights including the right to freedom and security of
the person, and the right to privacy, was unsuccessful.
Ackerman J pointed out that both in the United Kingdom and
jurisdictions such as Australia, which share a common ancestry with
South African companies’ legislation, courts have exercised
control over the machinery of the provisions in question by
intervening in instances where an application for the examination of
a person ought not to be granted if it would be oppressive,
vexatious
or unfair; or to prevent any oppressive or unfair conduct from taking
place during the course of any inquiry which had
been previously
authorised.
[44]
[36] Amongst the
numerous authorities the court referred to was the matter of
Clover
Bay Ltd (Joint Administrators) v Bank of Credit and Commerce
International SA
,
[45]
where the Court of Appeal set out the criteria which applied to the
exercise of the court’s discretion to order an examination,
and
which are instructive for the purposes of considering the exercise of
discretion in this matter:
“
It is clear that in exercising the discretion the court has
to balance the requirements of the liquidator against any possible
oppression
to the person to be examined. Such balancing depends on
the relationship between the importance to the liquidator of
obtaining
information on the one hand and the degree of oppression to
the person sought to be examined on the other. If the
information
required is fundamental to any assessment … and
the degree of oppression is small … the balance will
manifestly come
down in favour of making the order. Conversely,
if the liquidator is seeking merely to dot the i’s and cross
the t’s
of a fairly clear claim by examining a proposed
defendant to discover his defence, the balance would come down
against making the
order. Of course, few cases will be so
clear: it will be for the Judge in each case to reach his own
conclusion”
.
[46]
[37] In my view,
given this Court’s inherent power to regulate its Rules and
procedures (both in terms of common law and in
terms of s173 of the
Constitution),
[47]
it should adopt a similar approach in regard to applications for the
submission of a party to undergo a medical examination.
In
considering whether to allow such an application, the court should
strive to balance the aims and objectives of affording a
party an
opportunity to obtain such information (pertaining to the state of
health of any party in regard to matters which may
relate to the
assessment of a claim for damages pursuant to an alleged bodily
injury), as may be necessary in order to enable it
to prepare for
trial, on the one hand; with the nature of the examination which is
sought to be performed and the effect it may
have on the party to be
examined, on the other. In carrying out such a balancing
exercise, and without seeking in any way
to be definitive or
prescriptive, the following considerations would play a part:
(a) The importance of, and the need for obtaining the information
sought: This, in turn, will depend on the nature of the
information and what evidentiary value it may have in regard to the
issues in the matter which is before the court, whether it
is of a
general or specialized nature, and whether or not it is already
established in, or has been obtained by way of other reports,
or is
otherwise common cause;
(b) Is it about obtaining further medical information which can
assist the parties and/or the court at arriving at a resolution
of
the dispute or is it about seeking to obtain a tactical, forensic
advantage over a party which one would not ordinarily obtain
(eg to
obtain material from which to cross-examine a party or to use as
‘ammunition’ against such party);
[48]
(c) Is the examination which is proposed sought on the basis of a
medically justifiable rationale or reason relevant to the issues
in
dispute (eg if there is no suggestion of any psychological impact
being suffered as a result of a bodily injury, a party would
not
ordinarily be expected to subject themselves to a psychological
assessment);
(d) What will be the effect of the proposed examination on the party
that is to be examined? Will it result in an unnecessary
invasion of the party’s personal privacy and bodily integrity
in circumstances where this is not necessary and the information
can
be obtained in another manner? Will it cause the party to
suffer undue hardship or inconvenience, or emotional or psychological
distress or pain, and thereby add insult to injury?
(e) At what stage in the litigation is the examination being sought?
Is the information being sought in the form of a supplementary
report
for the purposes of updating the results of previous examinations or
is it a completely new inquiry which is to be launched
on the eve of
the trial?
(f) How many other examinations has the party been subjected to,
either at the instance of the party seeking the further examination
or at its own instance?
[38] Where a court
is of the view that a medical examination is likely to result in an
invasion of a party’s personal
privacy and bodily integrity in
circumstances where this is not necessary and the information can be
obtained in another manner,
or it will cause the party to suffer
undue hardship or inconvenience, or physical, emotional or
psychological distress or pain,
it should not allow the examination
to go ahead, or should put conditions in place to safeguard the
examinee’s rights.
I point out that when it comes to an
examination of any property (either movable or immovable) in terms of
the Rule,
[49]
a party is not bound to subject itself thereto if such examination
will “
materially prejudice”
it, by reason of the
effect the proposed examination will have on such property. I
can see no reason why, if an examinee
is likely to be materially
prejudiced in the sense I have outlined in regard to any bodily or
mental examination, he or she should
not similarly be entitled to
refuse to submit thereto.
The parties’
submissions:
[39] Respondent
adopts the attitude that the reference in the Rule to “
any
further medical examination by any other person”
cannot be
understood to afford the applicants in this matter a right to have
her examined in order to obtain a second opinion on
an issue or
aspect that has previously been examined by an expert commissioned at
their instance. Respondent points out that
usually, in matters
such as these, follow-up or supplementary reports are obtained by a
party from the experts it originally commissioned
as they are
familiar with the patient’s circumstances and medical history
and have already expressed an opinion in regard
thereto. As
such, this would usually be the most cost-effective and expedient way
of dealing with the need to obtain further
information. As I
have previously pointed out applicants initially commissioned their
own psychiatrist, Dr George, to examine
and assess the respondent,
but for some reason which has not been disclosed in the papers,
elected not to request the respondent
to submit herself to a
follow-up examination before Dr George, and now seek to have her
examined by another psychiatrist.
Respondent’s counsel
conceded however that on an ordinary reading of the Rule there was no
prohibition on a party, either
expressly or impliedly, which
disallowed it from obtaining a second opinion for any good reason eg
if it had lost confidence in
the expert it had originally employed,
or no longer made use of his or her services because the working
relationship between them
had come to an end.
[40] Respondent
contended further that the applicants could not show from the report
of Dr George or any other practitioner who
had examined her that it
was “
necessary or desirable
” for her to be
examined by another person, and a second opinion on the same issue
was thus not theirs for the asking.
[41] Finally,
respondent contended that in any event, if the applicant’s
request properly fell within the ambit of the requirements
of
sub-rule (5) then it had been complied with when she attended upon Dr
Czech, at which time a second examination was conducted
at the
instance of the applicants, and the fact that Dr Czech disqualified
himself from reporting on his assessment should not
be laid at her
door.
[42] On the other
hand, applicants adopt the attitude that inasmuch as respondent
consented to a further examination which was incorporated
into an
order of court and Dr Czech was unable to complete his examination
and did not render a report, the examination which they
now seek to
be performed by Dr Cilliers (or rather to be completed by Dr
Cilliers), constitutes the “
second”
and final
medical examination which they are entitled to request the respondent
to undergo.
[43] In
Potgieter
,
Tshiki J interpreted the provisions of sub-rule (5) to mean that as a
plaintiff in matters such as these would have to be examined
by
numerous experts in respect of various heads of damages, which
included loss of earnings and general damages, he/she was entitled
to
be examined at his own instance by an expert in each particular
‘field’ pertaining to such head of damages and,
in
response, defendant was entitled to require the plaintiff to be
examined at its instance in respect of each ‘field’
of
examination, on no more than two occasions.
[50]
[44] I am, with
respect, not convinced that the interpretation which was adopted in
Potgieter
was correct. In the first place, I do not believe
that it would always be possible to categorise an expert’s
function or
his report as pertaining to an assessment in a clearly
defined ‘field’ which is linked to a particular head of
damages.
In my experience, experts frequently report on aspects which
may serve to traverse more than a single ‘field’ and
which
often pertain to more than one head of damages. In this regard
it is not unusual for a single medical practitioner to comment not
only on an injury and the pain and suffering it may have caused,
which would relate to the claim for general damages, as well as
the
costs of future medical treatment, but also in regard to its affect
on functionality and whether it has resulted in physical
impairment
or disability, which would impact upon the loss of earnings component
of the claim. However, in the view I take of the
matter it is not
necessary for me to pronounce on this issue because I will assume, in
favour of the applicants, that inasmuch
as Dr Czech did not provide a
report, even though he carried out a ‘full’ assessment,
there was no true ‘second’
examination within the meaning
of the Rule as a whole, and applicants are thus entitled to have
respondent re-assessed by Dr Cilliers,
provided of course that they
can show that they fall within the requirements of the Rule in regard
to ‘necessity’ or
‘desirability’.
[45] In his
affidavit in support of the original application for an Order that
the respondent submit to a medical examination by
Dr Cilliers,
applicants’ attorney said that such proposed further medical
examination was necessary or desirable if regard
be had to the views
expressed by Dr George and Messrs Loebenstein and Awerbuck, and the
allegations contained at paragraphs 9.4
and 9.5 of the respondent’s
amended particulars of claim. In these paragraphs it was simply
averred that as a result
of the incident, respondent would require
further consultations in the future, with a psychologist and/or a
psychiatrist, and medication.
As far as this issue goes, both
Dr George and Mr Loebenstein were
ad idem
that a course of
cognitive behavioural therapy was indicated in respect of future
treatment and Loebenstein pointed out that outcome
studies with
regard to the disorders of which the respondent suffered from
generally supported the view that such therapy should
be combined
with psychopharmacological intervention. In the circumstances,
the averment that the allegations contained in
paragraphs 9.4 and 9.5
of the respondent’s amended particulars of claim made it
necessary and/or desirable to obtain the
opinion of yet another
psychiatrist at the instance of the applicants is not justified.
[46] In his report
dated 13 February 2014 Awerbuck confirmed the diagnosis made by
numerous other mental health professionals and
concurred with them
that the incident had a severely traumatic influence on the
psychological make-up and quality of life of the
respondent. He
pointed out that his findings were in line with those of all the
other clinical psychologists and psychiatrists
who had treated or
assessed the respondent, save for Loebenstein, who only differed
slightly in regard to the severity of the diagnosis
and who was more
sanguine about the prospects of respondent being able to work in the
future. He pointed out that all of
the (six) other mental
health professionals who had assessed the respondent had labelled her
condition as “
intense”
or “
severe”
and had used phrases such as “
severely emotionally
incapacitated”
, “
unable to function in any areas
of daily living”
, “
her impaired state is having a
profoundly detrimental effect on her children and her husband”
,
and “
she remains severely ill”
. His own
assessment confirmed a poor prognosis for complete recovery due to
the severity and recurring length of the conditions
from which
respondent was suffering, a finding which was similarly supported by
all of the other mental health professionals (including
Dr George),
save for Loebenstein who was somewhat more optimistic that with
cognitive behavioural therapy the respondent would
benefit
substantially. Dr George was of the view that cognitive
behavioural therapy would only have a limited benefit and
would not
significantly improve respondent’s employment prognosis.
[47] Given the
overwhelming concurrence in the opinions of all the various mental
health professionals that have assessed the respondent
over some 8
years, one must but wonder what the purpose of yet another assessment
some 10 years after the incident in question,
would serve. In
the report of the very latest assessment of the respondent which was
carried out by Loebenstein in September
2014, it was noted that she
presented in a more distressed manner than when she was first
examined and that she appeared to have
deteriorated in regard to her
previous functioning. Her husband considered her to be very
depressed and withdrawn and confirmed
there was a deterioration in
her condition. He attributed this to her having been exposed to
repeated medical examinations,
and said her symptoms had been
exacerbated because of this. Given her husband’s view
that her condition had worsened
after being examined repeatedly
Loebenstein recommended that the cognitive behavioural therapy she
should undergo should be of
a more generalised nature, and should not
include the specific trauma-based therapy he had intinially proposed,
and he also was
of the opinion that the respondent should be treated
“
robustly”
with anti-depressant medication.
Notwithstanding the deterioration in respondent’s functioning,
he remained of the
view that with the necessary treatment and
medication, she would be able to make some recovery and re-integrate
herself “
into some form of work”
.
[48] In July 2013
respondent was assessed at the instance of the applicants by an
industrial psychologist Mr H Swart, who also prepared
a report. A
supplementary report was obtained from him in January 2014. It is
important to mention that in neither report did Swart
suggest that he
was unable to opine on respondent’s probable career path and
earnings had the incident not happened and had
she remained in the
SAPS, or in regard to her future earning capacity, if any, subsequent
thereto, because of any uncertainty or
difference relating to her
diagnosis, or her prognosis. For the sake of completeness I point out
that a report from an industrial
psychologist which respondent’s
attorneys commissioned, Mr P Crous, was filed as early as October
2012. He too had no difficulty
in this regard. Swart allowed for the
possibility that with the necessary psychotherapy and psychotropic
intervention, respondent
would possibly be able to return to work.
He postulated that, provided she made the necessary recovery she
could obtain employment
as a junior bookkeeper in the non-corporate
sector and he set out what he believed she could realistically hope
to earn by way
of remuneration in this regard. In the
circumstances there appears to be no reason why the applicants should
not be able
to compute, with the assistance of an actuary, the value
of respondent’s claim for past and future loss of earnings.
[49] To my mind it
would appear that the real motivation behind the wish to submit
respondent to yet another psychiatric examination
at the instance of
the applicants, is for them to obtain a better opinion than the one
given by Dr George in regard to the respondent’s
future
prognosis, which would be more in line with the views expressed by Mr
Loebenstein. That this is indeed the motivation
behind the
application is apparent if one considers paragraphs 76 and 78 of the
affidavit of the applicants’ attorney in
the original
application which was launched. In my view, this does not constitute
the necessary grounds for a further examination
as required within
the meaning of the Rule, in the sense that it is neither necessary
nor desirable in order to obtain “
full information”
in respect of an assessment of the respondent’s damages.
[50]. In contrast to
the stated basis for the application as formulated originally, in his
supporting affidavit in regard to the
instant application applicants’
attorney said that he was advised by Dr Cilliers that the further 6
hour examination proposed
was necessary in order that Dr Cilliers
could “
understand”
respondent’s experience
of the events to “
determine whether or not the
alleged
post-traumatic stress disorder and depression were caused by the
circumstances of the event”
(my emphasis) and in the light
thereof, what her prospects of recovery were.
[51] Given the
consistency in the diagnosis made by each of the various
psychologists and psychiatrists who assessed respondent
since 2007,
including the applicants’ own experts, it is disconcerting, to
say the least, that Dr Cilliers still needs to
determine whether or
not the respondent suffers from post-traumatic stress disorder and
depression and if so, whether it was caused
by the circumstances of
the event to which she was subjected. In my view, given the
concurrence by the applicants’
own psychologist and original
psychiatrist in the diagnosis made by all the previous health
professionals who assessed the respondent
it is neither necessary nor
desirable for respondent to be subjected to any further examination
or assessment in regard thereto,
and given the opinion of the
applicants’ own psychologist, Loebenstein, in which its
industrial psychologist, Swart, concurs,
to the effect that
respondent will, with the necessary cognitive behavioural therapy and
pharmacological intervention be able to
reintegrate herself into
“
some form of work”
of a nature and kind that will
afford her a calculable remuneration, it does not appear to me to be
either necessary or desirable
for first respondent to be subjected to
yet another psychiatric assessment at the instance of the
applicants. In the circumstances
I am of the view that
applicants have not made out a case, as required, within the meaning
of the sub-rule in question.
[52] In addition, I
do not believe that it would be in the interests of justice for me to
order that respondent submit herself to
yet another examination, and
that to do so so would be unduly oppressive and unfair to her.
I point out that when Dr George
saw her in June 2013 he found that
getting her to relive the events in question was painful and
stressful for her and she became
overly anxious and emotional at
times. When Loebenstein saw her in August 2014 he found her to
be more distressed than on
the previous examination a year earlier.
She appeared agitated when having to describe her current functioning
and as I have
pointed out her husband reported that part of her
decline was attributable to her exposure to repeated examinations,
and having
to rehash and relive the circumstances of the incident
time and time again. Already on his initial assessment
Loebenstein
noted that when respondent was taken to address the
incident she was brought to tears, before she even related any of the
circumstances
of the arrest and detention. In a supplementary
report which Awerbuck filed on 7 July 2014 he pointed out that
unnecessary
delays in the legal process had been severely detrimental
to the respondent’s mental health, and in his view any further
reassessment would only serve to traumatise respondent even more,
which in his opinion would be unfair to her given the severity
of her
diagnosis. This is exactly what appears to have occurred when
respondent was subjected to the further assessments
of Dr Czech and
Dr Cilliers.
Conclusion:
[53] In the
circumstances I am of the view that the time has come to draw a
line. I agree with respondent’s counsel
that the proper
course for the matter to now follow is for the parties to call for
their experts to meet with a view to formalising
joint minutes.
On the papers before me I can see no reason why this should not be
possible given the position adopted by
the applicants’ own
experts. I am not disposed to subjecting respondent to yet another
psychiatric examination which, to
my mind, is neither necessary nor
desirable and which would in all likelihood only serve to cause her
futher psychological and
emotional distress. In my view applicants
have substantially all the necessary information they require in
order to enable them
to prepare for trial and to meet the case which
will be put up by the respondent, in the event that the matter cannot
be settled.
[54] In the result,
the application is dismissed with costs.
________
M
SHER, AJ
Appearances
:
For the Applicants
(Defendants): Adv S Witten
Instructed by:
Fairbridges, Cape Town
For the Respondent
(Plaintiff): Adv TD Potgieter SC
Instructed by: Faure
& Faure, Paarl
[1]
Durban City Council v Mndovu
1966
(2) SA 319
(D) 324A.
[2]
Id
at 324D-F.
[3]
Rule 36(5)(A) provides that where any party
claims damages as a result of the death of another person, he or she
shall also undergo
a medical examination as prescribed in the Rule
if so requested and his/her own state of health is relevant in
determining the
damages or compensation.
[4]
This shall be not less than 15 days from the date
of the notice in terms of Rule 36(2).
[5]
Rule 36(2)(a)-(d).
[6]
Rule 36(8)(a).
[7]
Rule 36(8)(b).
[8]
Save with the leave of the Court or the consent
of all parties.
[9]
Fifteen days before the hearing.
[10]
Rule 36(9)(b).
[11]
Rule 24(1).
[12]
Mgudlwa v AA Mutual Insurance Association
Limited
1967 (4) SA 721
(ECD)
722I-723A.
[13]
1980 (1) SA 160 (E).
[14]
165B-C.
[15]
164H-165A.
[16]
Mgudlwa
n 11 at
723A, relying on
Dadoo Ltd v
Krugersdorp Municipal Council
1920
(AD) 530-552.
[17]
Goldberg
n 12 at
165C-D.
[18]
S 12(2).
[19]
S 12(2)(b).
[20]
In terms of s 14.
[21]
S 14(1)(a).
[22]
S 14(1)(d).
[23]
S 1.
[24]
S 10.
[25]
‘
Freedom and Security of the Person’
in
Constitutional Law of South Africa
(2
nd
ed) at 40-78.
[26]
McQuoid-Mason ‘Privacy’ in
Constitutional Law of SA
(2
nd
ed), 38-6;
National Coalition for Gay
and Lesbian Equality v Minister of Justice
1999
(1) SA 6
(CC) at para [30].
[27]
Bernstein and Ors v Bester and Ors NNO
1996 (2) SA 751 (CC).
[28]
Castell v De Greeff
1994
(4) SA 408 (C).
[29]
In a number of cases it was held that the
performance of blood tests without authorisation or consent was
wrongful
vide Seetal v Pravitha and Ano
NO
1983 (3) SA 827
(D) 861C;
M
v R
1989 (1) SA 416
(O) 426J;
Nell
v Nell
1990 (3) SA 889
(T) 895H;
C
v Minister of Correctional Services
1996
(4) SA 292
(T) 300F-301B.
[30]
1997 (2) BCLR 209
(N)
contra
S v Huma
1996 (1) SA 232
(W) 236H-237B
where it was held that taking a person’s fingerprints
constituted a trivial infringement rights to bodily
integrity.
See further Bishop and Woolman n 24 at 40-87.
[31]
Financial Mail (Pty) Ltd and Ors v Sage
Holdings Ltd and Ano
1993 (2) 451 (A)
462F.
[32]
2002 (6) SA 297
(SCA) 301G-H.
[33]
[2001] ZACC 9
;
2002 (1) SA 429
(CC) 439
.
[34]
439G-440A.
[35]
Giddey NO v JC Barnard and Partners
[2006] ZACC 13
;
2007 (2) BCLR 125
(CC) at
para
[16]
.
[36]
S 39(1)(a) of the Constitution.
[37]
S 39(2).
[38]
At para [7.4].
[39]
Note 26 .
[40]
At para [19].
[41]
Id.
[42]
Note 26.
[43]
Act
61 of 1973.
[44]
Paras [17], [35] – [37].
[45]
[1991] 1 All ER 894
(CA) at 900B-D.
[46]
900B-D.
[47]
S173 provides that the High Court has the inherent power to protect
and regulate its own process, and to develop the common law,
having
regard for the interests of justice.
[48]
See
James v Magistrate, Wynberg and Ors
1995 (1) SA 1
(C)
16C.
[49]
Rule 36(7).
[50]
Para [11].