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[2010] ZAWCHC 479
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Road Accident Fund v Lechner (16972/1997) [2010] ZAWCHC 479 (21 September 2010)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE HIGH
COURT, CAPE TOWN)
CASE
NO:
16972/1997
DATE:
21
SEPTEMBER 2010
In the matter between:
ROAD
ACCIDENT FUND
…............................................................
Applicant
and
MAGDALENA LECHNER
….......................................................
Respondent
JUDGMENT
APPLICATION FOR LEAVE TO
APPEAL
KLOPPER,
AJ
:
This is an application
for leave to appeal, specifically to the Supreme Court of Appeal, the
judgment of this Court delivered on
12 August 2010 in which an order
comprising a number of substantial amounts was made against the
applicant in this application
ordering it to pay these amounts to the
respondent, who was, in fact, the plaintiff in the original matter.
I have taken cognizance
of the argument on both sides. Firstly that as far as the applicant
is concerned, it believes that after
a consideration of all the
evidence and all the relevant aspects in this particular matter, and
a proper consideration of the evidence
and the law, that the medical,
hospital and ancillary expenses which were paid by the institution,
the KKH and the PKKH, are indeed
collateral benefits and that they
should be deducted from the plaintiff's award of damages,
On the other side there
is the argument that this is not the case if the evidence is
considered and also the argument that the applicant
has not really
indicated with any amount of clarity where the criticism lies and
where the Court, in fact, erred in coming to its
conclusion.
I am acutely aware of the
approach in an instance where leave to appeal is sought. That at this
particular stage the Court is expected
to stand back and to once
again reconsider whether another Court or another forum in the iight
of the circumstances could come
to another conclusion and therefore
that the applicant has a reasonable prospect of success.
I don't think there can
be any dispute about the fact that if one considers the nature of the
proceedings in this particular matter
and the extent to which counsel
in this matter had to go in order to place the facts before the Court
and to argue the situation
in Germany, that it cannot be said that a
matter of this nature and this particular matter is a complex matter.
And it's not simply a
matter that can be concluded superficially. If one looks at the
arguments of counsel on both sides in this
regard, it is pretty
obvious that a number of factors and a number of issues have to be
considered before one can reach a conclusion.
At
the same time I'm not persuaded at this stage that my judgment was
incorrect and, of course, I abide by what I have said in my
judgment.
I think, I can summarise it to a great extent by referring to the
well-known case which I quote in my judgment of
Standard
General Insurance Company Limited v Dugmore
1997(1)
SA 33 (A) where the Court really in that particular case once again
indicates the complexity of a matter such as this and
the fact that
it is difficult to determine in the end what benefits should be
deducted and what benefits stand not to be deducted,
and that there
are really no hard or fast rules or principles that can be applied.
In that particular matter
at 41 and 42 the Court says, quoting Boberg:
"The existence of
the coiiateral source rule can therefore not be doubted; to what
benefits it applies is determined casuistically;
where the rule
itself is without logical foundation, it cannot be expected of logic
to circumscribe its ambit."
The Court goes on to say:
"It
now seems to be generally accepted that there is no single test to
determine which benefits are collateral and which are
deductable.
Both in our country and in England it is acknowledged that policy
considerations of fairness ultimately play a determinative
role."
I think that describes
basically the approach and the fact that the approach is often based
on the circumstances of each particular
case.
And
if I understand the applicant correctly, it is in applying these
principles that it believes that this Court has erred in reaching
its
conclusion, it is true perhaps that the applicant has not with any
particular clarity indicated what precisely it has in mind
when it
does criticise the Court on various issues. I accept that for
purposes of this application the applicant has decided not
to
comprehensively deal with these aspects and will at a later stage
probably deal with them.
I am, despite the strong
arguments by Mr Duminy that this Court should not merely grant leave
to appeal simply because a certain
issue has not been decided in a
higher court, of the view that if I consider all the aspects that
were argued in this particular
matter, there is in my view a
reasonable possibility, based on the principles that were dealt with
in this matter, that another
Court could reach a different conclusion
and therefore that there is, in my view, a reasonable possibility or
prospect of success.
Bearing
in mind the complexity of the matter and the importance for the
applicant in this matter (and also the fact that it would
seem that
there has been a difference of opinion in various matters which are
dealt with, both in argument and in the judgment)
I am also of the
view that the matter should be considered by the Supreme Court of
Appeal and not by a full bench of this court.
The end result is
therefore that I believe that leave to appeal to the SCA should be
granted, and I grant that order, and I also
order that the costs in
this application are to be costs in the appeal.
KLOPPER, AJ