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[2012] ZAECPEHC 46
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Potgieter v Road Accident Fund (2416/2005) [2012] ZAECPEHC 46 (31 May 2012)
13
REPORTABLE
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE, PORT
ELIZABETH
Case no: 2416/2005
Date heard: 31.5.2012
Order granted:
31.5.2012
In the matter between:
FABIAN BRANDON THOMAS
POTGIETER
...........................................................
Plaintiff
vs
ROAD ACCIDENT FUND
….................................................................................
Defendant
REASONS FOR JUDGMENT
SUMMARY : Practice –
Rule 36(2) and (3) of the Rules of the Superior Court Practice.
In the main action,
plaintiff sues defendant in terms of section 17 of the Road Accident
Fund Act (the Act) for compensation for
injuries he sustained in a
motor collision in Port Elizabeth. When the case was ripe for trial,
defendant filed a notice in terms
of Rule 36(2) requiring plaintiff
to submit himself to a further examination by a clinical psychologist
of defendant’s choice.
Plaintiff objected to defendant’s
notice. The matter was subsequently and procedurally brought before
me for adjudication
in terms of Rule 36(3)(d))(ii).
Court rejected
plaintiff’s grounds of objection as having no merit and ordered
the examination to be conducted and awarded
costs of the application
against plaintiff. Principles enunciated in decided cases like
Durban
City Council v Mndovu
1996(2) SA 319 (D) and
Mgudlwa v
AA Mutual Insurance Association Ltd
1967(4) SA 721 (E)
restated and, where necessary, in line with the Constitution.
TSHIKI J:
A) INTRODUCTION
[1] In the main action
plaintiff herein is suing defendant in terms of section 17 of the
Road Accident Fund Act
1
(the Act) for
compensation for injuries which he sustained in a motor collision in
Port Elizabeth on or about 31 August 2002.
[2] The case is now ripe
for trial, however, defendant has since filed a notice in terms of
Rule 36(2) of the Rules of this Court
requiring plaintiff to submit
himself to a further examination by Larry Loebenstein a clinical
psychologist. Plaintiff has objected
to the defendant’s notice
aforesaid and has, in terms of Rule 36(3),
notified
the defendant of the nature and grounds of his objection.
[3] In response to the
objection by plaintiff defendant has filed an application in Court in
terms of Rule 36(3)(d)(ii) requiring
the Judge to determine the issue
on the grounds that the plaintiff’s objection is unfounded.
[4] On 31 May 2012, I was
called upon to adjudicate the issues in this application and this
resulted in my order issued on the following
terms:
“
[4.1] That Fabian
Brandon Thomas Potgieter (respondent) submit himself to a medical
examination by Mr Larry Loebenstein, a clinical
psychologist, at no
75 Second Avenue, Newton Park, Port Elizabeth, on a date and time to
be arranged and agreed to by the parties
in these proceedings.
[4.2] That respondent may
have his own medical adviser present at such medical examination.
[4.3] That the respondent
pay costs of this application.
[4.4] Reasons for
judgment to follow at a later stage.”
[5] In view of the fact
that the last reported case to deal with the merits of Rule 36(2) and
(3) in the country and which fortunately
was decided in this division
in 1967, I saw it necessary to prepare full reasons for my decision.
[6] At the time of the
argument Mr van der Linde SC appeared for the applicant and Mr
Niekerk represented the respondent.
B) NATURE OF THE
OBJECTIONS
[7] It is common cause
that the proposed examination of the plaintiff, which is the subject
of these proceedings, is the second
of such examination of the
plaintiff by a clinical psychologist, the first one having been
conducted in East London by Mr Pat Hill
on 3 and 4 February 2009 at
the instance of the defendant. Plaintiff objects to the proposed
examination on the following grounds:
[7.1] That the plaintiff
has, at defendant’s instance, been examined in the past by a
clinical psychologist Mr Pat Hill who
subsequently prepared a
medico-legal neuro-psychological report.
[7.2] That the plaintiff
has been examined by a clinical psychologist of his choice Mr Ian
Meyer, on two occasions.
[7.3] Defendant has, in
addition, caused the plaintiff to be examined by further experts of
its choice, a neuro surgeon Dr JA Azher
and Dr P Whitehead an
industrial psychologist.
[7.4] That the proposed
examination is pertinent to the plaintiff’s cognitive,
executive, socio-emotional and behavioral functioning,
and will be an
invasion on his constitutional rights; and
[7.5] That an examination
by a second psychologist without good reason will be unreasonable.
[8] Before dealing with
the nature of the objections it would be apposite for me to state the
relevant provisions of Rule 36 which
read:
“
36 INSPECTIONS, EXAMINATIONS
AND EXPERT TESTIMONY
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.
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 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 …
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 –
the nature of the proposed
examination;
the person or persons by whom the
examination is to be conducted;
the place, date or time of the
examination;
the amount of the expenses tendered
to him …
…
...
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.
…
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 examination in accordance with
the provisions of this rule.
” (My emphasis)
[9] Relative to the
issues herein, section 19 of the Road Accident Fund Act
2
provides:
“
19 Liability excluded in
certain case
The Fund or an agent shall not be
obliged to compensate any person in terms of section 17 for any loss
or damage –
…
…
…
…
suffered as a result of bodily injury
to any person who -
unreasonably refuses or fails to
subject himself or herself,
at the request and cost of the Fund or
such agent, to any medical examination or examinations by medical
practitioners designed
by the Fund or agent.”
[10] Some of the
plaintiff’s objections to the proposed examinations do not
appear to be in accordance with Rule 36(3) and
cannot assist the
plaintiff in his objection. For instance, the fact that defendant has
instructed attorneys in Cape Town, as it
has been raised by plaintiff
as an objection, is not relevant to the issues under discussion. Such
is a matter which can be dealt
with when the Court considers the
question of costs on the merits of the case or when the taxing master
deals with taxation of
the bill of costs of the defendant should that
be the case. I say so because the costs of the application in terms
of Rule 36(3)
should be dealt with at the stage when it deals with
such application and therefore such costs cannot include the costs of
the
merits of the case and are provided for in terms of provisions of
Rule 36(2) which provides that “such notice
shall
be
accompanied by a remittance in respect of the reasonable expense to
be incurred by such other party in attending such examination.”
[My emphasis]
[11] It seems to me that
plaintiff herein sustained multiple injuries which resulted in him
having to be compensated in respect
of various heads which include,
inter alia
, loss of earnings, loss of earning capacity,
general damages including disfigurement, significant short term
memory problems, severe
neuropsychological impairment and others. For
the above reasons plaintiff would have to be examined by numerous and
different experts
in order to be able to calculate, with the required
exactitude, the actual damages he has sustained. In respect of each
head of
damages a plaintiff is entitled to be examined by an expert
in that particular field. In respect of each field of examination
plaintiff
is entitled to be examined at the instance of the defendant
not more than two occasions, the second being the final examination
in terms of Rule 36(5). It appears from the evidence before me that
plaintiff was only examined once at the instance of the defendant
in
this particular field of expertise and the proposed examination would
be the second and final examination by the clinical psychologist.
In
calculating the number of occasions of examination at the defendant’s
instance, plaintiff cannot include those instances
where the
examination was at plaintiff’s own instance. In my view, this
could not have been the intention of the Rules board
in the
circumstances. Therefore, for the purposes of this application and in
terms of Rule 36(2), plaintiff has been examined once
at the
defendant’s instance. He cannot, therefore, refuse to be
further examined at defendant’s instance.
[12] Furthermore,
plaintiff’s averment in his affidavit in support of his
objection to the proposed amendment that his own
medico-legal
neuropsychological expert has already examined him and prepared a
medico-legal neuropsychological report does not
bar defendant from
invoking the provisions of Rule 36(2). As has been alluded to above,
in calculating the number of instances
of examination the Rule does
not include instances where the examination was done at plaintiff’s
instance. Rule 36(2) and
(3) are clear in this regard. Defendant is
entitled to have plaintiff examined by its own expert in that
particular field notwithstanding
the fact that plaintiff’s
expert has done so at the plaintiff’s instance. This is so for
many reasons, which,
inter alia
, include the fact that experts
may differ in their conclusions and opinions. My experience also
taught me that it would be advisable
for each party to the
proceedings to have a report of an expert of the party’s choice
especially when the other party does
not agree with the opponent’s
expert opinion as detailed in his or her report.
[13] Plaintiff’s
averment in paragraph 15.2 of his answering affidavit on page 63 of
the record that plaintiff has to be examined
again for the
convenience of Messrs Hindly or Hill does not make sense. In fact
that conclusion is not supported by proved facts
and therefore cannot
be used to support the allegation that the proposed examination is
unreasonable.
[14] In my view, there
are no convincing grounds upon which plaintiff can rely in his
objection to the proposed examination. The
notice in terms of Rule
36(2) indicates clearly that the proposed examination would be
conducted in Port Elizabeth and not in Cape
Town as plaintiff has
suggested. Therefore, there would have been no inconvenience to the
plaintiff if the examination is conducted
in Port Elizabeth.
[15] Mr Van der Linde has
pertinently submitted that the last report made on behalf of the
plaintiff was compiled in 2009 by one
Pat Hill. The condition of the
plaintiff is likely to have changed and improved since then. I agree
with Mr Van der Linde in this
regard. It is not the defendant’s
fault that the case has not proceeded till to date. I say so,
because,
in
every case the plaintiff is
dominis
litis
and
should determine and take a leading role in the speedy finalisation
of his or her case. In circumstances where there are delays
in the
speedy finalisation of the case by the time of the trial there is
likely to be new developments and or changes in the condition
of the
plaintiff regarding his or her recovery from the injuries sustained
during the accident. For that reason a defendant in
the shoes of the
Road Accident Fund in this case would be perfectly correct in seeking
a further examination of the condition of
the plaintiff since the
last examination which was done about three years ago. The purpose of
the assessment is to assist the legal
advisers of the parties and or
the Court to be able to assess the damages for the purpose of
adequate compensation. It therefore
follows that the rule under
discussion “is mainly designed to avoid a litigant being taken
by surprise in relation to matters
with respect to which he would in
the normal course of events be unable, before the trial, to prepare
his case effectively so as
to meet that of his opponent
3
.
Moreover, it is not the
intention of Rule 36 to give the party sought to be examined a leeway
to choose the medical expert who should
examine him or her. In terms
of rule 36(3)(b) he or she may object to the person by whom the
examination is to be conducted, but
he or she is not required to
nominate someone else
4
.
[16] The final contention
by plaintiff is that the proposed examination is pertinent to the
plaintiff’s cognitive, executive,
socio-economic and behavioral
functioning, and will be an invasion of his constitutional rights. It
is quite correct that the obligation
of a plaintiff to submit to
medical examination is a drastic invasion of his or her rights to
privacy which includes bodily integrity.
Our constitution
5
defines the right to
privacy as follows:
“
Everyone has the right to
privacy, which includes the right not to have –
their person or home searched;
their property searched;
their possessions seized; or
the privacy of their communications
infringed.”
[17] It should also be
noted that the protection of this right can be limited by the manner
in which the individual interacts with
other people to which he or
she communicates about his own private life matters. In
Bernstein
and Others v Bester NO and Others
6
Ackerman J characterised
the right to privacy as lying along a continuum where the more a
person interrelates with the world, the
more the amplitude of the
right is reduced. At page 489 para 77 the learned Judge has this to
say about the limitation of this
right:
“
A very high level of protection
is given to the individual’s intimate personal sphere of life
and the maintenance of its basic
preconditions and there is a final
untouchable sphere of human freedom that is beyond interference from
any public authority. So
much so that, in regard to this most
intimate core of privacy, no justifiable limitation thereof can take
place. But this most
intimate core is narrowly construed. This
inviolable core is left behind once an individual enters into
relationships with persons
outside this closest intimate sphere; the
individual’s activities then acquire a social dimension and the
right of privacy
in this context becomes subject to limitation.”
[18] Although the right
to privacy is distinguishable from the right to dignity there is
close connection between the two rights
the former (privacy)
consisting essentially in the right to live one’s life with
minimum of interference unless the individual
extends his or her
intimate sphere of individual activities by acquiring a social
dimension with other people. In that case there
will be a
justification for the Courts, where applicable, to limit the claim of
the right in accordance with the interests of both
the holder of the
right to privacy and those with which the holder interacts. In such
circumstances there will be a justification
for the resultant
invasion of the right to privacy.
[19] In my view, this
invasion of the claimant’s rights aforesaid is exactly what is
contemplated by the wording of Rule 36
which is plain and unambiguous
and should be given its literal interpretation. The provisions of the
Rule cannot be avoided for
the reason that they have the effect of
invading the claimant’s constitutional rights. In my view, it
is also imperative
that the examination be conducted regardless of
its consequences if to do so would be in the interest of justice. If
to do so would
be in compliance with the correct interpretation of
Rule 36(2) the logical consequences thereof are unfortunate as the
provisions
of the Rule 36(2) should be given its effect. The effect
of the invasion has also been ameliorated by the fact that defendant
who
seeks to traverse the plaintiff’s rights should be
responsible for the costs of the examination. It is also in the
interests
of the plaintiff to conduct the examination in order to be
as accurate as possible in the calculation of the damages due to the
plaintiff more so when the amount to be paid in compensating
plaintiffs in such claims is paid from the public coffers. Our law,
though,
requires
a strict construction to be placed upon the provision in question not
only in interpreting the relevant provisions but
also in ascertaining
the intent thereof. In
Mgudlwa
v AA Mutual Insurance Association Ltd
7
Kotze J writing judgment
for the full bench of this division stated:
“
In such a case our law requires
a strict construction to be placed upon the provision in question not
only in interpreting the provision
but also in ascertaining the
intent thereof (
Dadoo Ltd
v Krugersdorp Municipality Council
1920 AD 530
at p 552). Having regard to this principle it seems to me
that the Rule of Court should be fairly applied so as to adjust
between
two conflicting interests. On the one hand, the party
requiring the examination should not be hampered in preparing for
trial or
estimating the amount of any sum which he might wish to
offer by way of settlement. On the other hand, the person required to
be
examined should be subjected to the least possible degree of
inconvenience, regard being had to the relevant circumstances. I
consider
that as a general rule it would be wise to apply Rule of
Court 36 in such a way as not to require a plaintiff to travel a long
distance in order to be examined on behalf of the defendant if this
can be reasonably obviated …”
[20] In my order I have
left it to the parties to arrange a venue which will be convenient to
both parties obviously after having
regard to the interests of the
plaintiff who has already suffered disfigurement as a consequence of
the injuries he sustained during
the accident under discussion.
D) COSTS
[21] The costs of this
application are not part of the expense of carrying out the
examination referred to in Rule 36(8)(c) and
do not therefore
automatically form part of the party and party costs of the applicant
herein
8
.
The Court is therefore entitled to consider the costs of this
application in the normal method of dealing with any costs of the
litigation before it
9
.
A party who defends a case brought to Court does so at his or her
peril and would consequently take the risk of losing his or
her
opposition of the case in which case, unless there are justifications
for any deviation from the norm, the costs will follow
the event.
Having had regard to all the circumstances of the case, I am of the
view that the plaintiff’s objection to the
examination together
with his grounds thereof were unreasonable.
For
that reason plaintiff could not escape payment of the costs as an
obvious consequence of his failure to successfully object
to the
proposed examination which is to be conducted to him. In the present
circumstances, defendant could also have elected not
to proceed with
the application in terms of section 36(3) but invoke the provisions
of section 19 of the Road Accident Fund Act
10
which provides that the
fund or agent shall not be obliged to compensate any person in terms
of section 17 of the Act
11
,
for any loss or damage suffered as a result of bodily injury to any
person who unreasonably refuses or fails to subject himself
or
herself at the request and cost of the fund or agent, to any medical
practitioners designed by the fund or agent.
[22] I came to the
conclusion that plaintiff’s objection to the proposed
examination did not have merit and should be rejected
in its
entirety. It is for the above reasons that I granted the order on 31
May 2012 and the above reasons constitute my reasons
for that order.
__________
P.W. TSHIKI
JUDGE OF THE HIGH COURT
Counsel for the applicant
: Adv H Van der Linde SC
Instructed by :
McWilliams & Elliot
PORT ELIZABETH
Counsel for the
respondent : Adv D Niekerk
Instructed by : Friedman
& Scheckter
PORT ELIZABETH
1
Act
56 of 1996
2
the
Act (for citation see fn 1)
3
Durban
City Council v Mndovu
1966 (2) SA 319
(D) at 324 D-E
4
Durban
City Council v Mndovu fn 3
supra
at 325 H
5
Section
14 of the Constitution of the Republic of South Africa, 1996 (the
constitution)
6
1996(4)
BCLR 449 (CC)
7
1967(4)
SA 721 (E) at 723 A
8
See
Erasmus on Superior Court Practice [Service 37, 2011] –
B1 262-267. See also Durban City Council v Mndovu fn 3
supra
9
Mgudlwa
v AA Mutual Insurance Association Ltd fn 5
supra
10
Act
56 of 1996
11
See
fn 10
supra