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[2022] ZAECQBHC 37
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Van Heerden v Road Accident Fund (845/2021) [2022] ZAECQBHC 37 (4 October 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, GQEBERHA
CASE
NO. 845/2021
In
the matter between:
MORNÉ
VAN HEERDEN
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
RUGUNANAN
J
[1]
The plaintiff’s claim arises from bodily injuries sustained in
a
motor cycle collision on 3 May 2019. The defendant conceded
liability on the merits on 10 February 2022. The matter served before
me on 5 September 2022 on the civil trial roll. Essentially, all
heads of damages claimed by the plaintiff barring the claim for
past
medical expenses were settled. In terms of an order of 5 September
2022 that claim was, by agreement, postponed for trial
to 8 September
2022. On that day the defendant moved for an amendment to its plea.
The amendment was allowed without objection.
It was introduced
without any prior indication being given to the plaintiff during the
case flow management and roll call processes,
nor through the
mechanism of a rule 37 conference, much less by way of a formal
notice of intention to amend delivered in accordance
the uniform
rules of court.
[2]
The amendment reads as follows:
‘
7.1
Defendant denies being liable for Plaintiff’s claim for past
hospital and medical expenses, and puts the Plaintiff
to the proof
thereof.
7.2 In
amplification, Defendant pleads that it has assessed the claim for
past medical expenses. Defendant takes
note of the fact that the past
medical expenses were paid by the Discovery Health medical scheme. As
a consequence, the Plaintiff
has not sustained any loss or incurred
any expenses in respect of the past medical expenses claimed and
there is therefore no duty
on the Defendant to reimburse the claimant
and Defendant hereby repudiates the claim for past medical expenses.’
[3]
Arising from the amendment, the issue for determination is whether
the
defendant is liable for payment of past medical expenses in light
of the fact that the plaintiff’s medical aid scheme had
already
paid expenses on behalf of the plaintiff. In accordance with uniform
rule 33(4), I directed that the issue be determined
precedent to the
quantification of the claim which presently is for the amount of
R1 036 513.01 pending further amendment
for a higher
amount.
[4]
It is common cause that the plaintiff’s expenses (to date) have
been paid by his medical scheme.
[5]
Save for the above, no evidence was tendered by either of the parties
at the hearing of the matter.
[6]
The plaintiff did not replicate to the amended plea, nor was a copy
of
his contract with his medical scheme placed before me.
[7]
It will, however, and for present purposes, be assumed that:
(a)
The
payments by the plaintiff’s medical scheme constituted the
discharge by the scheme of a contractual obligation flowing
from a
contract concluded between it and the plaintiff;
[1]
(b)
In
return the plaintiff undertook, in the event of there being a
successful recovery from the defendant, to reimburse the scheme
for
all medical expenses incurred by the scheme on his behalf;
[2]
(c)
The
scheme provides for the principle of subrogation which means that it
may sue the defendant in its own name or in the name of
the
plaintiff.
[3]
[8]
Referring to the authorities cited below, plaintiff’s counsel
addressed
me in argument.
[9]
The defendant’s legal representative made no submissions.
[10]
I am thus constrained to decide the matter on the basis of the
arguments advanced on behalf
of the plaintiff.
[11]
The effect
of payments by a medical scheme for medical expenses incurred by a
member was made plain by the Supreme Court of Appeal
in
Bane
and Others v D’Ambrosi
[4]
where the following was said:
‘
[P]ayments which
the medical aid was and is obliged to make to the respondent
constitute the discharge by the respondent of contractual
obligations
flowing from the contract concluded between it and the respondent. As
such they constitute res
inter alios acta
and the appellants
cannot claim the benefit of them.’
[12]
An undertaking creates a contingent right of recourse by a scheme
against its member for
reimbursement. In this case the plaintiff’s
obligation to reimburse his medical scheme in terms of his
undertaking is prompted
once he receives payment from the defendant
for past medical expenses and the medical scheme may sue the
plaintiff for reimbursement
should he fail to reimburse it.
[13]
This was
explained in
Rayi
N.O. v Road Accident Fund
[5]
in which the Western Cape High Court quoted
Ackerman
v Loubser
[6]
where the principle was laid down as follows:
‘
A plaintiff,
however, who has received full indemnity for his loss under a
contract of insurance, and has afterwards recovered compensation
in
an action for damages against the wrongdoer, is not entitled to a
double satisfaction; but, as soon as he has received from
the
underwriter or insurer the amount for which he is insured, he becomes
a trustee for the latter in respect of any compensation
paid or
payable by the wrongdoer, and is bound to hand over to the insurer
whatever money he receives from the wrongdoer over and
above the
actual loss he has sustained, after taking into account the amount he
has received under the contract of insurance.’
[14]
Adverting
to the present matter, it follows that the plaintiff’s medical
scheme has an election. It may elect to proceed against
either the
plaintiff in terms of the undertaking should the plaintiff have
received compensation from the defendant, or the defendant
on the
basis of the doctrine of subrogation. In
Rand
Mutual Assurance Company Ltd v Road Accident Fund
[7]
the Supreme Court of Appeal recognised it to be the prevailing
practice that insurers litigate in the name of the insured.
[8]
The court acknowledged that the practice creates confusion over the
identity of the real plaintiff, and while the practice may
be less
than desirable it would be wrong to abolish it by judicial fiat.
[15]
Subrogation
is nothing more than a procedural device
[9]
and where, as in the present case, the defendant did not specifically
claim to be prejudiced
[10]
I
am of the view that the plaintiff cannot be non-suited by litigating
in his own name.
[11]
[16]
In the circumstances, I hold that payment by the plaintiff’s
medical scheme of his
past medical expenses does not relieve the
defendant of its obligation to compensate the plaintiff for such
expenses.
[17]
Accordingly, the following order issues:
(i)
The defendant is liable to pay the plaintiff for past medical
expenses either
as proven or agreed.
(ii)
The defendant shall pay the plaintiff’s costs of suit.
M.
S. RUGUNANAN
JUDGE
OF THE HIGH COURT
APPEARANCES:
For
the Plaintiff:
D. Niekerk
Instructed
by Jock Walter Inc.
Plaintiff’s
Attorneys
Walmer
Gqeberha
(Ref:
A. J. Walter/M7839)
Tel:
041 363 5501
For
the Defendant:
J. Jantjies
The
Office of the State Attorney
Defendant’s
Attorneys
Central
Gqeberha
Tel:
041 585 7921
Date
heard:
08 September 2022
Date
delivered:
04 October
2022
[1]
Compare
Bane
and Others v D’Ambrosi
2010
(2) SA 539
(SCA) at paragraph [19]
[2]
Compare
Rayi
N.O. v Road Accident Fund
[2010] JOL 25238
(WC) at paragraph [7]
[3]
Compare
ibid
at paragraph [13]
[4]
2010
(2) SA 539
(SCA) at paragraph [19]
[5]
[2010]
JOL 25238
(WC) at paragraph [18]
[6]
1918
OPD 31
at 36
[7]
2008
(6) SA 511 (SCA)
[8]
At
521E
[9]
Rand
mutual Assurance Company Ltd v Road Accident Fund
[2008] ZASCA 114
;
2008 (6) SA 511
(SCA) at 521B
[10]
Compare
ibid
at 522A
[11]
Ibid
at 522A