About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Gqeberha
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Gqeberha
>>
2022
>>
[2022] ZAECQBHC 50
|
|
Malgas v Road Accident Fund (126/2020) [2022] ZAECQBHC 50 (1 December 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, GQEBERHA
Case
no: 126/2020
In
the matter between:
NOXOLO
LYNETTE MALGAS
Appellant
AND
THE
ROAD ACCIDENT FUND
Respondent
Coram:
D van Zyl DJP
Heard:
25 November 2022
Delivered:
1 December 2022
JUDGMENT
D
VAN ZYL DJP:
[1]
The plaintiff was injured in a motor vehicle collision. The defendant
(the Fund) was
found to be liable for such damages as the plaintiff
may have suffered in consequence of the collision. The only
outstanding claim
in dispute between the parties is the plaintiff’s
claim for past hospital and medical expenses, the quantum of which
has
been admitted in the amount of R245 166.32 (two hundred and forty
five thousand, one hundred and sixty six rand and thirty two cents).
[2]
The Fund has denied liability for the plaintiff’s past hospital
and medical
expenses. The basis of its denial has been formulated as
follows is its plea:
“
Defendant
pleads that it has assessed the claim for past medical expenses. The
Defendant takes note of the fact that the past medical
expenses
claimed 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 denies the claim for the past medical expenses.”
[3]
The facts relevant to the determination of the outstanding issue are
common cause.
Those are that the plaintiff was a member of the
Discovery Health Medical Scheme (the medical aid). In terms of the
policy provisions
regulating the plaintiff’s membership, of the
scheme (i) the medical aid was obliged to pay the hospital and
medical treatment
received by the plaintiff in consequence of her
injuries; and (ii) the plaintiff was obliged, in the event of there
being a successful
recovery from the Fund of such amounts as were
paid on her behalf by the medical aid, to reimburse the medical aid
for all such
recovered amounts.
[4]
Following the collision, the plaintiff received medical treatment and
incurred expenses
in the amount claimed. In compliance with its
contractual obligations, the medical aid paid the expenses to the
hospital and the
other medical service providers. The expenses were
admitted by the Fund to have been reasonable and necessary in the
treatment
of the plaintiff’s injuries.
[5]
The Fund’s obligation to compensate the plaintiff for her
patrimonial loss arises
from the provisions of the Road Accident Fund
Act 56 of 1996 (the RAF Act). The Fund’s liability is delictual
and is founded
in the common law. At common law the patrimonial
delictual damages suffered by a plaintiff is the difference between
his patrimony
before and after the commission of the delict
[1]
.
[6]
An Aquilian claim for patrimonial loss for bodily injury is
compensatory in nature.
It does not embody a punitive element
[2]
.
This principle is embodied in the RAF Act. In section 17 it obliges
the Fund to “
compensate”
any person for any loss or damage suffered as a result of bodily
injury caused by or arising from the driving of a motor vehicle.
A
plaintiff is accordingly only entitled to compensation to the extent
of the reduction of his patrimony caused by the wrongful
and
negligent act of the wrongdoer.
[7]
As a damage causing event may also result in a plaintiff receiving
some advantage
or benefit (also referred to as collateral benefits)
that may increase his patrimony, such benefit or advantage must be
taken into
account in determining the amount of compensation that
must be awarded. A benefit or advantage that reduces a plaintiff’s
loss should therefore result in a corresponding reduction in the
amount of compensation awarded. “
It
is not uncommon, however, for a plaintiff by reason of his injuries
to receive from a third party some monetary or compensatory
benefit
to which he would not otherwise have been entitled. Logically and
because of the compensatory nature of the action, any
advantage or
benefit by which the plaintiff’s loss is reduced should result
in a corresponding reduction in the damages awarded
to him. Failure
to deduct such a benefit would result in the plaintiff recovering
double compensation which, of course, is inconsistent
with the
fundamental nature of the action
[3]
.”
[8]
A plaintiff’ is accordingly in principle not entitled to
receive, what may conveniently
be referred to as, double
compensation. The question when a benefit would amount to double
compensation is informed by “
considerations
of public policy reasonableness and justice
[4]
.”
What is considered fair and just in the circumstances of a case is
determined on the basis of two opposing considerations. The
one is
that the plaintiff should not receive double compensation. The other
is that the wrongdoer ought not to be relieved of liability
on
account of some gratuitous event. Benefits which has in our law been
accepted over time should be excluded in determining the
damages to
which a plaintiff is entitled, are “
(a)
benefits received by the plaintiff under ordinary contracts of
insurance for which he has paid the premiums and (b) moneys and
other
benefits received by a plaintiff from the benevolence of third
parties motivated by sympathy. It is said that the law baulks
at
allowing the wrongdoer to benefit from the plaintiff’s own
prudence in insuring himself or from a third party’s
benevolence or compassion in coming to the assistance of the
plaintiff
[5]
.”
[9]
There are other instances where legislation expressly provides that a
benefit received
by a plaintiff must be disregarded in the
determination of compensation for patrimonial loss.
Section 1
of the
Assessment of Damages Act 9 of 1969
provides by way of example that
“
When in any action, the cause of which arose after the
commencement of this Act, damages are assessed for loss of support as
a result
of a person’s death, no insurance money, pension or
benefit which has been or will or may be paid as a result of the
death,
shall be taken into account.”
The RAF Act on the
other hand expressly provides in section 18 that any amount to which
a plaintiff is entitled to by way of compensation
in terms of that
Act, must be reduced to the extent of any compensation received by
the plaintiff under the Compensation for Occupational
Injuries and
Diseases Act 130 of 1993, the Defence Act of 1957, or any other Act
of Parliament governing the South African National
Defence Force.
[10]
The question raised by the plea is whether the payment of the
plaintiff’s medical expenses
by the medical aid relieved the
Fund from paying compensation to the plaintiff in respect of her past
medical expenses. There exists
no reason to make any distinction
between an ordinary insurance contract, and the contract which exists
between a medical scheme
and its members. A medical aid is in essence
simply another form of insurance. In
D’Ambrosi
v Bane and Others
[6]
(D’Ambrosi)
the court rejected the argument that payments received from a medical
aid scheme should be treated as a benefit
that must be deducted from
the plaintiff’s claim for compensation for future medical
expenses. It found that a medical aid
scheme, like the one the
plaintiff in that case was a member of, was in substance a form of
insurance. The court quoted with approval
the following passage in
Thomson
v Thomson
[7]
:
“
A
medical aid scheme is, if not in law then in substance, a form of
insurance. One pays a premium against which there may be no
claim, or
claims less than the value of the premiums, or claims which far
exceed the value of the premiums. Were this a claim for
damages,
whether in delict or in contract, there is little doubt that the
defendant would not have been entitled to rely on the
payments
received from the medical aid scheme
[8]
.”
[11]
I pause here to mention that a benefit, which is found must be
excluded from the compensation
to be awarded to a plaintiff, is in
the case law referred to as
res
inter alios acta
.
The description of the result of the finding as
res
inter alios acta
should preferably be avoided as it does not accurately reflect the
reason for the finding. The maxim, fully expressed, is
res
inter alios acta alteri nocere non debet
.
It literally means “
things
done between strangers ought not to prejudice those who are not
parties thereto
[9]
.”
This
maxim, Trollip JA said in
Beyleveldt
,
is “
a
slippery one, difficult to grasp firmly and to apply with any
certainty or confidence in assessing claims for bodily injuries
(cf.
too the remarks in British Transport Commission v Gourley,
[1955] UKHL 4
;
1956 A.C.
185
at pp. 199, 206-7). The reason is that many of the
res
actae
of a plaintiff relating to his injuries (e.g., contracts with others
for medical treatment) do have a direct and manifest bearing
on the
assessment of his economic loss, and although they are
inter
alios
,
they must be admissible in evidence and taken into account
inter
partes
,
if justice is to be done between them
[10]
.”
The issue raised by a plaintiff having received a financial benefit
payable as a consequence of the damage-causing event, is not
determined solely with reference to the fact that the benefit is
received from a source other than the wrongdoer, or the fact that
it
is arising from an obligation outside of the wrongdoer’s
delictual liability. It is, as stated by Rumpff JA in
Beyleveldt
,
ultimately a question of legal policy, answered with reference to
considerations aimed at doing justice between the parties
[11]
.
“
In
light of the aforegoing I agree with Neethling, Potgieter &
Visser Law of delict
[12]
that
‘(q)uestions regarding collateral benefits are normative in
nature; they have to be approached and solved in terms of
policy
principles and equity’, and that in doing so ‘there
should always be a weighing-up of the interests of the plaintiff,
the
defendant, the source of the benefit as well as the community in
establishing how benefits resulting from a damage-causing
event
should be treated
[13]
.’”
[12]
In
Bane
and Others v D’Ambrosi
[14]
(Bane) the Supreme Court of Appeal upheld the decision of the court
in
D’Ambrosi.
The findings in
Bane
and
D’Ambrosi
are in my view correct. Being in the nature of insurance, a member of
a medical aid secures a benefit for himself at his own expense.
As
stated in
Zysset
,
the wrongdoer or his insurer should in principle not be relieved of
liability by reason of some fortuitous event such the prudence
of a
plaintiff to have insured himself
[15]
.
Further, the plaintiff will not receive double compensation by reason
of the insurer’s right of subrogation that can generally
be
expected to form part of the rules of a Medical Scheme
[16]
.
This may entitle the medical aid to recover from a plaintiff what it
paid on his behalf when the plaintiff is compensated by the
Fund.
[17]
Also, the effect of refusing to allow a plaintiff to recover in full
his medical expenses from the Fund, may, as in this matter,
have the
effect of depriving the medical aid of its contractual right to be
reimbursed directly by the plaintiff.
[13]
A last consideration that militates against the defence raised by the
Fund is, as it was pointed
out by the Constitutional Court in
Coughlan
v The Road Accident Fund
[18]
,
the fact that the legislature chose to expressly provide that
payments received by the categories of persons in section 18 of
the
RAF must be deducted from compensation paid by the Fund. There is no
equivalent reference to any other from benefit which may
be
considered to be double compensation. On a reading of section 18 of
the RAF Act, it does therefore not expressly, or by implication,
provide for the exclusion of benefits a plaintiff for compensation in
terms of the RAF Act had received from a Medical Aid Scheme
for past
medical and hospital expenses.
[14]
The finding in
Bane
(supra) and the considerations discussed
above equally find application on the facts of this matter. A
consideration that takes
on particular importance is that upon
payment of the costs of the hospital and medical treatment, the
medical aid acquired the
right to recover the costs of what it paid
from the plaintiff’s in terms of her obligation to reimburse
the medical aid arising
from the express terms of the contract
regulating their relationship. This is therefore not an instance
where the plaintiff stands
to unduly benefit from the recovery of
full compensation for her medical expenses from the Fund. It would
accordingly in my view
not be in the interests of justice to bring
into account in the calculation of the amount of compensation to be
awarded to the
plaintiff the benefit she received in terms of her
contractual relationship with the medical aid.
[15]
For these reasons, I conclude that payment by the medical aid of the
plaintiff’s past hospital
and medical expenses did not relieve
the defendant of its obligation to compensate the plaintiff for such
expenses. The defendant
is accordingly, on the facts placed before
me, liable to pay the plaintiff the sum claimed, and there is no
reason not to award
the plaintiff her legal costs.
[16]
In the result, an order is issued in the terms of the draft order
presented by the plaintiff
at the hearing of the matter, marked “VZ”.
SIGNED
D
VAN ZYL
DEPUTY
JUDGE PRESIDENT OF THE HIGH COURT
Appearances:
For
Appellants:
Adv N Patterson
Instructed
by:
Jaco Hattingh Attorneys
28 – 7
th
Avenue
Newton
Park
GQEBERHA
For the
Respondents:
Ms C Jantjes
Instructed
by:
State Attorney
29 Western Road
Central
GQEBERHA
[1]
Dippenaar
v Shield Insurance Co Ltd
1979
(2) SA 904
(A) at 917 B; Santamversekerings Maatskappy v Byleveldt
1973 (2) SA 146
(A) at 150 B – C; (Beyleveldt); and
Zysset
and Others v Santam Ltd
1996 (1) SA 273
(C) at 277 H – 278 B (Zysset).
[2]
Union
Government v Warneke
1911
AD 567
at 662 and 665 – 667
[3]
Zysset
supra
at 277 J – 278 B.
[4]
Standard
General Insurance Co Ltd v Dugmore NO
1997
(1) SA 33
SA (SCA) at 42 B. See also
Beyleveldt
supra at 150 E – F and 153 B – C;
Zysset
supra
at 279 A – B; and Minister van Veiligheid en Sekuriteit v
Japmoco BK.
2002 (5) SA 649
(SCA) at 666 F and 668 D.
[5]
Zysset
supra
at 278 C, quoted with approval in
Makhuvela
v Road Accident Fund
2010
(1) SA 29
(GSJ) at para [4].
[6]
2006
(5) SA 121 (C)
[7]
(2002
(5) SA 541 (W)
[8]
At
547 H – I
[9]
Hiemstra
and Conin
Trilingual
Dictionary
3
rd
ed at page 279.
[10]
Supra
at
172 C – E
[11]
Supra
at
153 B – C.
[12]
5
ed (2006) at p 215 – 16
[13]
Cachalia
JA in Erasmus Ferreira and Ackermann v Francis
2010 (2) SA 228
(SCA)
at para [17].
[14]
[2009]
JOL 24237
(SCA)
[15]
Zysset
supra
at 278 C – D
[16]
Bane
supra at para [19]
[17]
Rand
Mutual Assurance Co Ltd v Road Accident Fund 2008 (6) SA 511 (SCA)
[18]
2015
(4) SA 1
(CC) at para [59]