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[2017] ZAWCHC 153
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Road Accident Fund v Chin (23037/2016) [2017] ZAWCHC 153; 2018 (3) SA 547 (WCC) (9 November 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case No.:
23037/2016
In
the matter between:
ROAD
ACCIDENT
FUND
Applicant
and
MARIA
DORETHEA
CHIN
Respondent
JUDGMENT: 9 NOVEMBER 2017
1.
On 18 March 2014, Maria Dorethea Chin
(“Chin”)
was a passenger in a taxi driven at the time by Unathi Kopman
(“Kopman”)
.
As a result of Kopman’s alleged negligence the taxi overturned
on Hospital Bend, N2, Observatory, Cape Town.
2.
Chin sustained various injuries in the accident, as a result whereof
she alleges that she suffered damages.
3.
Consequently, on or about 25 November 2016, Chin instituted action
proceedings against the applicant, the Road Accident Fund
(“RAF”)
wherein she claimed damages in the amount of R1 416 113.33, which
is constituted by the following heads of damages:
3.1 past medical
expenses in the amount of R1180.00;
3.2 estimated
future medical expenses in the amount of R421 093.33;
3.3 future
transport and carer costs in the amount of R68 840.00;
3.4 past loss of
earnings in the amount of R65 000.00;
3.5 future loss of
earnings in the amount of R410 000.00; and
3.6 general damages
in the amount of R450 000.00.
4.
The RAF duly entered an appearance to defend the matter and on 16
March 2017 it filed a notice in terms of Uniform Rule 36(2),
requesting Chin to submit to a medical examination by Dr. R K Marks
on 24 May 2017 at 10h00 at his rooms in Claremont. The
Uniform
Rule 36(2) notice also informed Chin that she could have her own
medical advisor present during the medical examination.
5.
On 17 March 2017, Chin filed a notice of objection in terms of
Uniform Rule 36(3). The notice read as follows:
“
BE
PLEASEED TO TAKE NOTICE
that the
Plaintiff hereby objects to Dr. R Marks as the person by whom the
examination is to be conducted in respect of Defendant
‘s
notice in terms of Rule 36(2) dated 14 March 2017 on the grounds set
out below:-
1.
He is biased against Plaintiff’s;
2.
He fails to listen to complaints by
Plaintiff’s;
3.
He makes uncalled comments in
respect of lawyers and the amount being claimed by Plaintiff’s;
4.
His attitude is one of patronizing
Plaintiff’s;
5.
He lacks empathy and care when
examining Plaintiff’s’
6.
He has already pre-judged a
Plaintiff’s conditions prior to examination of such Plaintiff.”
(sic)
6.
It is apparent from her notice of objection that while Chin was
prepared to subject herself to a medical examination, she was
not
prepared to submit to a medical examination conducted by Dr.
Marks.
[1]
7.
In this interlocutory application, the RAF seeks an order directing
Chin to submit to a medical examination by Dr. Marks.
8.
At this juncture, I set out the relevant provisions of Uniform Rule
36 which reads as follows:
“
36.1
Subject to the provisions of this rule 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 claiming such
damage or compensation, whose state of health is relevant
for the
determination thereof to submit to medical examination.
36.2 Any party requiring another
party to submit to such examination shall deliver a notice specifying
the nature of the examination
required, the person or persons by
whom, the place where and where and the date (being not less than
fifteen days from the date
of such notice) and time when it is
desired that such examination shall take place, and requiring such
other party to submit himself
for examination then and there.
Such notice shall state that such other party may have his own
medical advisor present at
such examination, and shall be accompanied
by a remittance in respect of the reasonable expense to be incurred
by such other party
in attending such examination. Such expense
shall be tendered on the scale as if such person were a witness in a
civil suit
before the court: Provided, however, that-
(a)
if such party is immobile, the amount to be paid to him shall include
the cost of his travelling by motor vehicle and, where
required, the
reasonable cost of a person attending upon him;
(b)
where such other party will actually lose his salary, wage or other
remuneration during the period of his absence from work,
he shall in
addition to the aforementioned expenses be entitled to receive an
amount not exceeding R75,00 per day in respect of
the salary, wage or
other remuneration which he will actually lose;
(c)
any amounts paid by a party as aforesaid shall be costs in the cause
unless the court otherwise directs.
(3) The person receiving such
notice shall within five days after the service thereof notify the
person delivering it in writing
of the nature and grounds of any
objection which he may have in relation to-
(a)
the nature of the proposed examination;
(b) the person or persons by whom
the examination is to be conducted;
(c)
the place, date or time of the examination;
(d)
the amount of the expenses tendered to him and shall further-
(i) in the case of his objection
being to the place, date or time of the examination, furnish an
alternative date, time or place
as the case may be; and
(ii) in the case of the objection
being in the amount of the expenses tendered, furnish particulars of
such increased amount as
may be required.
Should the
person receiving the notice not deliver such objection within the
said period of five days, he shall be deemed to have
agreed to the
examination upon the terms set forth by the person giving the
notice. Should the person giving the notice regard
the
objection raised by the person receiving it as unfounded in whole or
in part he may on notice make application to a judge to
determine the
conditions upon which the examination, if any, is to be conducted
[2]
.
(4) …
(5) If it
appears from any medical examination carried out either by agreement
between the parties or pursuant to any notice given
in terms of this
rule, or by order of a judge, that any further medical examination by
any other person is necessary or desirable
for the purpose of giving
full information on matters relevant to the assessment of such
damages, any party may require a second
and final medical examination
in accordance with the provisions of this rule.
(5A) …
(6) ….
(7) …
(8) Any party causing an
examination to be made in terms of subrules (1) and (6) shall-
(a) cause the person making the
examination to give a full report in writing of the results of his
examination and the opinions
that he formed as a result thereof on
any relevant matter;
(b)
after receipt of such report and upon request furnish any other party
with a complete copy thereof; and
(c)
bear the expense of the carrying out of any such examination:
Provided that such expense shall form part of such party’s
costs.
(9) ….
(10) …”
9.
As seen from the provisions of Uniform Rule 36(3), if the applicant
was of the view that the objections raised were unfounded
either in
whole or in part, it should have made application to a judge in
chambers to determine the conditions upon which the examination,
if
any, was to be conducted. Instead the applicant opted to bring
an application to compel Chin to submit to an examination
by Dr.
Marks. No satisfactory explanation was given for the failure to
comply with the provisions of Uniform Rule 36(3).
10.
Be that as it may, I turn now to address the merits of this
application.
11.
Advocate Wynne for the RAF argued that there were only two grounds on
which Chin could object to submitting to a medical examination
conducted by Dr. Marks. These were that (i) he was not suitably
qualified and (ii) Chin had had a prior unpleasant experience
with
him. Advocate Wynne cited the case of
Durban
City Council v Mndovu
[3]
in support of this argument.
12.
The objection raised in this matter was not done on either of those
two grounds. Instead, the objection was that Dr. Marks
was not
going to be independent in conducting the examination.
13.
Consequently, Advocate Wynne sought to convince me to dismiss the
objection and to direct that Chin submits to a medical examination
to
be conducted by Dr. Marks.
14.
Advocate Roux, who represented Chin, argued that the legislator could
not have intended to limit the grounds on which an objection
could be
raised against a doctor nominated to conduct the medical
examination. He too relied upon the case of
Durban
City Council v Mndovu
in support of his
argument.
15.
The relevant passage from
Durban City Council v Mndovu
reads
as follows:
“
Rule 36
does not entitle the party sought to be examined to a say in the
choice of the medical expert. In term of Rule 36
(3) (b) he may
object to the person by whom the examination is to be conducted, but
he is not required to nominate someone else.
I
find it unnecessary to define the grounds upon which such objection
may be based.
A person might as well validly object to an examination by a man not
medically qualified, or to examination by a doctor with
whom the
person had unpleasant association in the past.”
[4]
(my
emphasis)
16.
Thus, it is clear from
Durban City
Council v Mndovu
that there are not
only two grounds on which objection may be raised against the doctor
nominated to carry out the medical examination.
17.
Given the inherent invasive nature of the provisions of Uniform Rule
36(2) and the impact it could have upon a number of fundamental
rights such as the right to privacy, the right to bodily and
psychological integrity
[5]
,
I am in agreement that the legislator could not have intended to
limit the grounds on which an objection could be raised against
a
doctor nominated to carry out the medical examination.
18.
While there is no closed list of objections which could possibly be
raised against submitting to an examination by a medical
practitioner
nominated by the defendant, the objection raised will have to be
reasonable, material and substantial.
19.
This follows from the fact that Uniform Rule 36 strives to give
effect to the right to a fair trial which is inimical to the
rule of
law.
[6]
20.
In
Starr
v National Coal Board
[7]
the court examined the reasonableness of the plaintiff’s
refusal to submit to a medical examination by the defendant’s
chosen practitioner. As in this case, the plaintiff was
prepared to submit to a medical examination but was not prepared
to
submit to a medical examination conducted by the defendant’s
nominated practitioner. The court found that the plaintiff’s
refusal would be unreasonable if such refusal would prevent a just
determination of the cause.
21.
The objection to the doctor nominated was based on an apprehension
that the doctor would produce a misleading report as he had
acted
unprofessionally when examining and reporting on other plaintiffs in
the past. It was also suggested that the doctor
was a hostile
examiner of plaintiffs.
22.
The court in
Starr
held
that only the interests of justice could require one or other of the
parties to accept an infringement of a fundamental right.
The
plaintiff could only be compelled to an infringement of his/her
personal liberty if justice required it. Similarly, the
defendant could only be compelled to forgo the expert witness of
his/her choice if justice requires it.
[8]
23.
Lord Justice Lane reasoned that if the nominated doctor produced an
unfavourable report, it could be dealt with at the hearing
during
cross-examination and comment. This could result in
discrediting the doctor, rendering his report useless to the
defendant.
[9]
The objection in the
Starr
case was held to be unreasonable and was not upheld.
24.
In determining whether the grounds of objection raised in this matter
are reasonable, material and substantial, regard must
be had to the
facts or averments on which the objections are based.
25.
Advocate Roux sought to introduce affidavits deposed to by Jonathan
James Firth
(“Firth”)
and
Odette Adams
(“Adams”).
Both Firth and Adams had
previously instituted claims against the RAF and had been examined by
Dr. Marks pursuant to a notice
issued in terms of Uniform Rule 36(2).
26.
Advocate Roux argued that as the affidavits constituted similar fact
evidence, it was admissible. Furthermore, he argued
that if the
evidence is relevant then it should be admitted.
27.
This is an overly simplistic and incorrect statement regarding the
admissibility of similar fact evidence.
28.
Similar fact evidence is only admitted in exceptional circumstances
and will only be received as evidence if it is sufficiently
relevant
to warrant its reception. Furthermore, the relevance of similar
fact evidence should pertain to relevance other
than that based
solely on character.
[10]
29.
Before the affidavits of Firth and Adams can be admitted as similar
fact evidence, it has to be shown that the same conditions
would be
present during the examination of Chin as that which existed during
the examination of Firth and Adams. Furthermore,
it has to be
shown that the similarity of conditions will likely to produce the
same result. This follows from the rationale
for admitting
similar fact evidence- the same conditions are likely to produce the
same results.
30.
Advocate Roux argued that the similarity of conditions were found in
that Chin was to be examined by Dr. Marks after she instituted
a
claim against the RAF, and that both Firth and Adams were examined by
Dr. Marks as the medical practitioner appointed by the
RAF after they
instituted claims against it. I am not convinced. It does
not appear from the record whether Firth or
Adams had their own
medical practitioner present during their examination by Dr. Marks.
Therefore, the past experiences of
Firth and Adams could provide no
reasonable indication of the results that may follow should Chin
elect to have her own medical
practitioner present during her
examination, as she was invited to.
31.
If the similarity of conditions is not established then the similar
fact evidence cannot be admissible.
[11]
32.
Furthermore, when determining whether similar fact evidence should be
admitted, consideration should be given as to whether
the value of
admitting it as proof warrants its reception in the interests of
justice and whether the admission thereof will not
operate unfairly
against the other party.
[12]
33.
Although the affidavits contain very serious allegations against Dr.
Marks (in fact it could even be said to be defamatory)
it is unknown
whether Dr. Marks was given an opportunity to respond or answer to
the allegations made against him. To admit
the affidavits in
circumstances where Dr. Marks was not afforded an opportunity to
reply thereto would be highly prejudicial to
him. As stated in
the
Starr
judgment:
“
If, on
the other hand, the objection is to the doctor’s skill or his
probity or his anticipated behavior at the examination,
then a
finding adverse to him might constitute in effect a bar to his
examining any other person for the purpose of litigation.
That
sort of possibility would act as a serious disincentive to any doctor
minded to undertake this sort of work, and would militate
against the
candour and forthrightness in reporting which are so valuable to any
judge who has the difficult task of evaluating
medical evidence at
the hearing. Such allegations should be approached with great
care.”
[13]
34.
To admit the affidavits and to uphold the objections on the averments
set out therein would have a serious detrimental effect
on Dr. Marks.
As held by the Constitutional Court, it is a fundamental
principle of our law that no one should be condemned
without a
hearing. This is part of the rule of law which is foundational
to our constitutional order.
[14]
35.
Advocate Roux also argued for the admission of the affidavits on the
basis that past facts are the best indicator of future
facts.
Therefore, he argued, it follows that prior prejudicial
experiences would suffice as a vital ground of objection.
If
this was indeed the case and if Dr. Marks had the propensity to be
biased against plaintiffs and to pre-judge their conditions,
I would
have expected more numerous and more recent complaints than two
affidavits deposed to in 2012.
36.
In the circumstances, I find that the affidavits deposed to by Firth
and Adams have not been shown to be sufficient relevant
for it to be
admitted as similar fact evidence nor that it would be in the
interests of justice to do so.
37.
In the absence of the affidavits deposed to by Firth and Adams, there
is no factual basis to the objections raised to Dr. Marks
examining
Chin. In the circumstances the objections cannot be said to be
reasonable.
38.
However, can it still be said that the objections are either material
or substantial? In determining this, I turn to the
grounds of
objections raised.
39.
The first ground of objection raised against Dr. Marks was that he
was biased against plaintiffs. It appears from the
answering
affidavit deposed to by Chin’s attorney, Halliday, that he has
a reasonable apprehension of bias and that he lacks
confidence in Dr.
Marks’ ability to provide an objective and neutral assessment.
40.
While there may be circumstances in which bias could result in the
exclusion of a medical practitioner from examining the plaintiff
in
terms of Uniform Rule 36(2)
[15]
,
a strong enough case has not been made out in the present matter.
41.
Given that the prerogative to elect your own expert is part of the
right to a fair trial, a higher standard than a reasonable
apprehension of bias should be applied when objecting to a medical
practitioner nominated to conduct the medical examination in
terms of
Uniform Rule 36(2). At a minimum, the apprehension of bias
would have to be objectively established.
42.
As Chin will also be aided with the expertise and assistance of her
own expert which will enable her to fully interrogate the
opinion and
report of Dr. Marks, it has not been shown what prejudice she would
suffer, should Dr. Marks be allowed to conduct
the medical
examination. Furthermore, bias is best tested through
cross-examination.
[16]
43.
Should it transpire that the trial court, having had the benefit of
observing Dr. Marks’ demeanour when giving evidence
as well as
the benefit of cross examination find that he is biased and/or
inaccurate then it may make an appropriate finding in
this regard and
can reject the evidence and opinion of Dr. Marks.
44.
Should the opinion of Dr. Marks be rejected by the trial court then
Chin will suffer no prejudice as a result hereof.
On the
contrary, it may even be to her benefit as this may result in the
court accepting the evidence and opinion of her expert
witness.
45.
In light of the above, Chin has not demonstrated that her objection
to Dr. Marks on the basis of a reasonable apprehension of
bias is
material and substantial.
46.
The objection that Dr. Marks has pre-judged a plaintiff’s
condition prior to examining such plaintiff is a complaint of
bias
restated differently. Therefore, the same considerations set
out above would be applicable.
47.
The remainder of the grounds of objection raised against Dr. Marks
pertain to his conduct during the medical examination.
[17]
During oral argument, Advocate Roux advised that there were no
objections to the manner in which Dr. Marks testified. Rather,
the objection was to the manner in which he carried out the medical
examination. He intimated that this was as a result of
the fact
that the court room was a controlled environment whilst there was no
such controlled environment when the medical examination
was
conducted, where Dr. Marks was solely in charge.
48.
The relationship between Dr. Marks and Chin cannot be equated to the
ordinary doctor-patient relationship. In an ordinary
doctor-client relationship it is implicit that a long-term
relationship is envisaged, where the patient pays for ongoing medical
care and advice and the doctor is invested in the medical health of
the patient. The relationship between Dr. Marks and Chin,
as
with any plaintiff examined in terms of Uniform Rule 36(2) and the
medical practitioner nominated by the defendant to conduct
the
medical examination, cannot be equated with a normal doctor patient
relationship as it is far more fleeting than that.
In most
circumstances, the doctor would only exam and thus interact with the
plaintiff on a single occasion. Furthermore,
this singular
interaction takes place within the adversarial context. Thus,
plaintiffs examined by medical practitioners in terms
if Uniform Rule
36(2) cannot expect the same bedside manner and empathy as they would
in an ordinary doctor patient relationship.
However, this does
not mean that unprofessional conduct should be accepted or tolerated.
49.
In determining whether or not the objections raised are material and
substantial consideration should also be given to whether
the grounds
of objection would be addressed by the imposition of certain
conditions during the medical examination.
50.
In this matter Chin has been invited to have her own medical
practitioner present during the medical examination.
Furthermore,
she may also have her legal representative present
during the medical examination.
[18]
51.
Advocate Roux was doubtful that the presence of either an own medical
practitioner or legal representative would act to create
a controlled
environment and thus prevent any misconduct on the part of Dr. Marks
during the examination. He expressed the
concern of who would
entertain and rule on any objections made during the medical
examination.
52.
Advocate Roux failed to appreciate that the very presence of a legal
representative during the conduct of the medical examination
could
possibly act to prevent any uncalled comments and improper
questioning by Dr. Marks.
[19]
Furthermore, the presence of an own medical practitioner would also
act to ensure that Dr. Marks correctly records any answers
or
complaints provided and that the examination is conducted in
accordance with the standards and practice applicable to the medical
profession. Should Dr. Marks fall short in this regard, not
only will it provide the legal representatives with ammunition
with
which to attack the credibility of Dr. Marks during cross-examination
but it may also form the basis of a formal complaint
to the Health
Professional Council of South Africa.
53.
The objections could further be addressed by an audio recording of
the examination which would ensure that there is an unbiased
and
objective recording of what was done and said.
[20]
An audio recording of the examination will also prevent anyone
from taking any words or actions out of context.
54.
Therefore, by providing for the presence of an own medical
practitioner, legal representative and the possible audio recording
of the examination, all the grounds of objections are addressed.
55.
It was argued that the RAF is a public body and that any
administrative action which it takes has to be reasonable and lawful
in terms of the Promotion of Administrative Justice Act, Act 3 of
2000
(“PAJA”)
.
56.
It was argued that it could not be reasonable or lawful for the RAF
to appoint Dr. Marks as a result of the objections of bias
raised
against him. It was also argued that it could not be lawful or
reasonable to appoint Dr. Marks who intentionally inaccurately
records the symptoms reported to him.
[21]
The remedies provided for in PAJA would not be of assistance as
it would not be able to remedy the examination itself, against
which
the complaint is directed. However, it is remains open to Chin
to review the RAF’s decision to appoint Dr. Marks
to conduct
the medical examination in terms of PAJA.
57.
Argument was also presented on the vital role played by an expert and
the assistance he or she can render to a court.
It was argued
that as Dr. Marks was biased, there would be no point to appoint him
as an expert. It was also argued that
Dr. Marks should not be
appointed as an expert because his expertise together with his bias
could result in him misleading the
court instead of assisting it.
58.
These concerns go to Dr. Marks’ credibility. It is not
for Chin to usurp the court’s function and to determine
whether
or not Dr. Marks is credible and of assistance to the court.
This is the court’s function. As stated
earlier, the
court would be in a better position to make this determination as it
would have had the benefit of observing Dr. Marks
during the giving
of his evidence and the benefit of cross examination.
59.
The objections to Dr. Marks were seemingly not raised by Chin herself
but by her attorney. There is no indication that
Chin herself
objected to Dr. Marks carrying out the medical examination. The
answering affidavit is deposed to by her attorney.
Uniform Rule
36(3) makes provision for the person who is to be examined to raise
the objection. This person is Chin and not
her attorney or
legal representative. The practice of attorneys raising
objections of this nature on behalf of their clients
should be
discouraged. At the very least there should have been some
indication that Chin was in agreement and supportive
of the
objections raised. This could easily have been done by way of a
confirmatory affidavit. No adequate explanation
was provided
why this was not done.
59.
In light of the above, I find that the objections raised against Dr.
Marks carrying out the medical examination on Chin are
not
reasonable, material or substantial.
60.
In the circumstances, I make the following order:
(1)
the respondent, Ms Dorethea Chin is
directed to submit to a medical examination by Dr. Marks at his rooms
at Bowwood, Claremont
on a date mutually agreed to between the
parties but which has to be within one month of the date of
this order.
(2)
in addition to having her own medical
practitioner and legal representative present, Ms Chin, may, should
she so chose, audially
record the examination.
(3)
the costs of this application shall be
costs in the main action.
H
SLINGERS
ACTING JUDGE OF THE HIGH COURT
Counsel
for Applicant: Adv. R D WYNNE
Instructed
by: Rahman Inc. ref Mr A Mohamed.
Counsel
for Respondent Adv.H J O ROUX.
Instructed
by: A Batchelor & Associates ref: P R Halliday
Court
resumed Thursday, 19 October 2017.
Date
of Judgment: 09 November 2017.
[1]
The
applicant questioned whether the objection was raised by Chin or
whether it was raised by her legal representatives.
[2]
Rule 1
defines a judge as “
a
judge sitting otherwise than in open court.”
[3]
1966 (2) SA 319(D).
[4]
1966 (2) SA
319
(D) at 325 H
[5]
Cape Town
City and Other v Kotzé
2017
(1) SA 593
(WCC) at paras 24 to 28
[6]
MEC for
Health, Gauteng v Lushaba
2017 (1) SA 106
(CC) at para 20
[7]
[1977] 1
All ER 243
[8]
Starr v
National Coal Board
[1977] 1 All ER 243
at pg 250 at b-c
[9]
ibid, at
254 j to 255 i
[10]
The South
African Law of Evidence, 2
nd
Edition by D T Zeffert + A P Paizes, page 271 onwards.
[11]
Laubscher v
National Foods Ltd 1986 (1) SA 553 (ZS)
[12]
Mood Music
Publishing Co Ltd v De Wolfe Ltd [1976] 1 All ER 763 (CA)
[13]
Starr v The
National Coal Board
[1977] 1 All ER 243
at 254 f-g
[14]
MEC for
Health, Gauteng v Lushaba
2017 (1) SA 106
(CC) at para 18
[15]
Daggit
v Campbell, 2016 ONSG (CanLII) http:// canlii.ca/t/gpqm3 retrieved
on 2017 – 11 - 06
[16]
Court of
Appeals of Ohio, 10
th
District, Franklin County. Vetter et al., Appellants v
Twesigye, Appellees, et al. No 04AP- 673 (decided on 20
January 2005)
[17]
The grounds
of objection are set out in paragraph 5 above.
[18]
Feros and
Another v Rondalia Assurance Corporation of SA Ltd 1970 (4) SA 393
(E).
[19]
Sharff v
Superior Court (1955) 44 C2d 508, 510
[20]
The Journal
of the Virginia Trial Lawyers Association, vol 25 no 1, 2014
[21]
During the
hearing of the matter it was argued that Dr. Marks intentionally
inaccurately records the symptoms reported to him.