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[2023] ZAECQBHC 5
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Van Der Westhuizen v Road Accident Fund (3806/2018) [2023] ZAECQBHC 5 (1 February 2023)
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Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE DIVISION,
GQEBERHA
CASE NO.: 3806/2018
In the matter between: -
KARLI VAN DER
WESTHUIZEN
PLAINTIFF
and
ROAD
ACCIDENT FUND
DEFENDANT
JUDGMENT
NORMAN
J:
[1].
The issue before me is a very narrow one. It
involves an enquiry into whether or not the defendant
is liable to
compensate the plaintiff for past medical and hospital expenses
incurred, where such expenses were paid on her behalf
by GEMS Emerald
Medical Aid (“GEMS”). The Defendant contends that
because the plaintiff did not pay for those
expenses, she did not
incur any loss to warrant compensation. All the other damages
relating to,
inter alia
,
general damages and future loss of earnings were settled on 24
November 2020. Mr Frost appeared for the plaintiff and Ms Phillips
for the defendant.
[2]
Prior to the commencement of the trial, plaintiff sought an amendment
to increase
the initial amount of R100 000.00 for past medical
and hospital expenses to R182 518.73. There was no objection to that
amendment
and it was accordingly granted.
[3]
The parties had also prepared a Rule 37 Minute which recorded certain
admissions as
follows:
‘
PAST
MEDICAL AND HOSPITAL EXPENSES
1.
The parties confirm that the only
outstanding issue is plaintiff’s claim for past medical and
hospital expenses in the sum
of R182 518.73.
2.
The parties record that on 24 November 2020
the above Honourable Court in the matter before the Honourable Deputy
Judge President
Van Zyl, issued an Order of Court and in respect of
paragraph 1 thereof, reads:
“
1.
That the Defendant pay Plaintiff 100% of her damages, as agreed upon
between the parties,
arising from the bodily injuries sustained by
Plaintiff in the motor vehicle accident which occurred on 30 July
2015, and at A[...]
Street, D[...], Eastern Cape.”
3.
Plaintiff records that she intends to amend
paragraph 10.4 of her Particulars of Claim dated 5 October 2020 to
read as follows:
“
10.4.
Past Medical and Hospital Expenses R182 518.73
10.4.1
Plaintiff provided Defendant with supporting vouchers for past
medical and hospital expenses paid by GEMS EMERALD Medical
Aid in
respect of Plaintiff.
10.4.2
Plaintiff incurred the aforesaid past medical and hospital expenses
arising out of the aforesaid collision.
10.4.3
The aforesaid past medical and hospital expenses were necessary and
have been reasonably incurred.”
4.
Defendant admits plaintiff is a member of
the GEMS EMERALD Medical Aid (the Scheme).
5.
Defendant
admits in terms of the policy provisions regulating Plaintiff’s
membership of the Scheme, the Medical Aid
was obliged to pay
the hospital expenses and medical treatment received by Plaintiff in
the consequence of her injuries.
6.
Defendant admits the past medical and
hospital expenses in the sum of R182 517.73 were incurred in
respect of Plaintiff who
received medical treatment and incurred
expenses in respect of hospitals and other service providers.
7.
Defendant admits that the sum of
R182 518.73 for past medical and hospital expenses have been
reasonable and necessary in the
treatment of Plaintiff injuries.
8.
Plaintiff submits that all the supporting
vouchers were paid by GEMS EMERALD Medical Aid in respect of
Plaintiff. Defendant has
requested a schedule from the medical aid.”
[4]
Defendant also sought an amendment to its plea as follows:
“
4
AD PARAGRAPH 10.4
4.1
Defendant has assessed the Plaintiff’s
claim for past medical and hospital expenses and established that the
fair and reasonable
accounts for treatment which is collision-related
amounts to R182 518.73.
4.2
The Defendant is not certain which accounts
assessed in the sum of R182 518.73 have been paid by the
Plaintiff’s medical
aid scheme, and which amounts Plaintiff has
paid and settled herself, as Defendant has been provided with medical
accounts, but
not a medical schedule to ascertain the correct sum
which was paid by the medical aid scheme.
4.3
Defendant is prepared to pay the Plaintiff
for any proven sum that the plaintiff incurred and directly paid
herself.
4.4
Defendant denies liability for any amount
paid by the Plaintiff’s medical aid scheme, as she has thus not
suffered any loss
for those accounts which in terms of her medical
scheme contract her medical scheme would have covered.”
[5]
Similarly, there was no objection to that request and the amendment
was granted.
[6]
Plaintiff testified that she had flown from Cape Town in order to
attend trial and she was returning
in the evening at 19H00. She
confirmed that the amount of R182 518.73 was for past medical
and hospital expenses which she
incurred as a result of the accident.
She further confirmed that, that amount was paid by the medical aid
GEMS. She testified that
her mother was registered as the main member
on the medical aid. Her mother had attended court in the morning but
was later excused
by both parties. She was not cross – examined
by the defendant. Plaintiff closed her case. Defendant indicated that
it had
no witnesses to call, and it closed its case.
[7]
During Mr Frost’s argument, he made a submission that made it
necessary to establish
certain facts from the plaintiff.
She was recalled to clarify one aspect that related to the person who
was a main member who paid GEMS premiums. Her evidence was
that at
the time of the accident
her mother
paid GEMS and she started paying premiums from February 2022. There
were no questions posed to her on behalf of the defendant
in relation
to this aspect.
[8]
Mr Frost relied on two judgments of this Division, one penned by the
Deputy Judge
President Van Zyl in the matter of
Noxolo
Lynette Malgas v Road Accident Fund
[1]
.
He also referred the Court to another decision of this Division in
the matter of
Morne
van Heerden v Road Accident Fund
by Rugunanan J
[2]
. In both cases
the defendant had raised defences similar to the one raised in this
case, and they were rejected. The defendant
was, in both cases,
found liable to pay the plaintiff for past medical and hospital
expenses either as proven or agreed.
[9]
He submitted that the plaintiff’s evidence is clear and she had
proved that
the medical expenses in the amount of R182 518.73
had been incurred. Those expenses were admitted by the defendant.
The
fact that the defendant was seeking a schedule to indicate
the costs that were paid by the plaintiff and those paid by the
medical
aid, is irrelevant, because the fact of the matter is that
they were all incurred in relation to the injuries sustained by the
plaintiff. He further submitted that the burden of proof was on the
defendant because it was not for the plaintiff to prove that
those
costs were justified for the medical aid to pay them. It was for the
defendant to lead evidence to deal with that aspect.
[10]
Ms Phillips, on the other hand, submitted that the defendant’s
position is that the plaintiff
says the defendant must pay
R182 518.73 for past medical and hospital costs incurred as a
result of the injuries sustained
by her and she wants that money paid
back to her. She submitted that the defendant’s attitude is
that if the plaintiff incurred
those costs personally then she would
be entitled to payment, but if it was the medical aid then she is not
entitled to payment
because nothing was paid out of her pocket.
[11]
She could not refer this court to any authority or legal instrument
that supports her submissions
in this regard.
Discussion
[12]
It is common cause that the plaintiff was born on 30 April 1998 and
when she sustained injuries
in a motor collision on 30 July 2015, she
was 17 years old.
She
was a child in terms of section 1 of the Children’s Act.
[3]
[13]
In the amended plea, the defendant admits that the issue of liability
was settled between the
parties in terms of a court order that was
granted on 24 November 2020. It is in that Order that general
damages and costs
relating to experts were settled between the
parties. The Order in paragraph 1 reads:
“
1.
That the Defendant pay Plaintiff
100% of her damages, as agreed upon between the parties,
arising from
the bodily injuries sustained by Plaintiff in the motor vehicle
accident which occurred on 30 July 2015, and at A[...]
Street,
D[...], Eastern Cape. . . .”
[14]
Defendant agreed with the plaintiff on the amount of the medical
expenses incurred. It further admitted that those expenses
were
related to the injuries sustained by the plaintiff as a result of the
accident. Furthermore, it admitted that those medical
expenses were
reasonable and necessary. This means that in the defendant’s
eyes those expenses were justifiable. That, in
my view, ought to have
been the end of the matter, however, the defendant persisted in the
issue set out in the first paragraph.
[15]
The defendant is a
creature
of statute.
Whatever
defense it puts up must, at the very least, be located within the
empowering provisions or the limitations and/or exclusions
provided
for either in sections 17 or 18 or 19 of the Road Accident Fund Act
[4]
. Ms Phillips could not
direct the Court to any provision in support of the defendant’s
contention.
That,
in my view, failed to meet the threshold set out in
Prinsloo
v Woolbrokers
Federation
Ltd
[5]
where the Court found that while a pleader’s first duty is to
allege the facts upon which he relies, his second duty is to
set out
the conclusions of law which, he claims, follow from the pleaded
facts. Facts and conclusion of law must, however, be kept
separate.
[6]
As aforementioned,
the defendant did not advance any conclusions of law upon which its
amended plea was premised.
[16]
Of importance herein
is that the issue of liability was admitted and therefore all that
the plaintiff needed to do at this point
was to prove that the costs
in relation to past medical and hospital expenses were indeed
incurred. The plaintiff succeeded in
doing so. As aforementioned the plaintiff was a minor
when she sustained the injuries.
Her mother deemed it fit to be a
member of a medical aid scheme to take care of her daughter when in
need. The submission that
the plaintiff must have paid out of her own
pocket to qualify for compensation, is with respect,
unsound.
It loses sight of the fact that the
plaintiff was a minor at the time and was dependent on her mother.
Her mother had a right
to do whatever she deemed appropriate to
ensure that, upon her injury, she received adequate medical care and
treatment.
[17]
I accordingly find that the payment made by the medical aid towards
the plaintiff’s past
medical and hospital expenses does not
excuse the defendant from its obligation to compensate the plaintiff
for those expenses.
Secondly, the defendant had been ordered to
pay 100% of plaintiff’s damages as agreed between the parties
as aforementioned.
The concessions made by the defendant as recorded
in the minute, lead me to conclude that, the defendant by pursuing
the defense
recorded in its amended plea seeks to render those
concessions nugatory.
[18]
Erasmus
Superior Court Practice
[7]
when dealing with offers of settlement of offers to settle litigation
in its commentary states the following:
‘
The
present procedure is less cumbersome, involves less bureaucratic
complexity, than its predecessor. If the defendant fail to
perform in
terms of an offer or tender which has been accepted the plaintiff is
entitled to apply for judgment. The rule is, therefore,
designed, to
enable a defendant to avoid further litigation, and failing that to
avoid liability for the costs of such litigation.
The rule is there
not only to benefit a particular defendant, but for the public good,
generally, as well.
[8]
Courts
should
take account
of
the purpose behind the rule and not give orders which undermine
it
[9]
.’
[19]
In
Gusha
v Road Accident Fund
[10]
the
Supreme Court of Appeal stated the following in paragraphs 14 to 15 F
-H:
‘
[14]
In these circumstances the respondent, by conceding the ‘merits’
and accepting liability
for the damages still to be proven, which the
(appellant) has suffered as a result of the bodily injuries he
sustained in the accident
accepted liability without qualification
for whatever damages the appellant had suffered as a result of his
injuries, subject of
cause to proof of those injuries and the damages
that ought to be awarded. There is in my view, no room for the
respondent’s
argument that its acceptance of liability was
limited and did not relate to the full extent of the appellant’s
loss. There
can also be no question of the respondent having sought
to limit its liability by reserving the right to raise an
apportionment
which it had not considered and on which it did not
intend to rely.
[15]
The respondent’s unqualified concession of liability renders it
both impermissible and
opportunistic for it
now
to attempt to introduce the
appellant’s alleged contributory negligence in order to seek a
reduction in the extent of its
liability….’
[20]
In
Road
Accident Fund v Krawa
[11]
a
Full Bench decision, Van Zyl J (as he then was) at paragraph 41
stated the following:
‘
[41]
By way of an example, in a claim for damages for personal injury,
where damage or loss is claimed under
the head past medical expenses,
is entitled to recover compensation in respect of such expenses which
have been reasonable incurred
by him or her and are fairly
attributable to the bodily injuries sustained in the accident.
Whether or not the expenses were in
fact incurred, thereby reducing
the economic value of the plaintiff’s estate rendering him or
her poorer, is to be established
first before the amount to be
awarded as compensation is calculated.’
[21]
In this case, it is not in issue that the expenses for past medical
and hospital expenses were
incurred. The amount to be awarded
as compensation in that regard is actually admitted by the defendant.
There is accordingly
no basis for me to support the contention by the
defendant where it disclaims its liability to compensate the
plaintiff for past
medical expenses where the medical aid paid for
such expenses. In
Discovery Health ( Pty
) Ltd v Road Accident Fund and Another , Case No. 2022/ 016179,
Mbongwe J
at para [21] relying on the
Zysset and Others v Santam Ltd
1996(1)SA273 ( C) at 277 H – 279 C ,
stated:
“
In
terms of our law , benefits received by a claimant from the
benevolence of a third party or a private insurance policy
are not
considered for purposes of determining the quantum of a claimant’s
damages against the first respondent. The
reason for this is
merely because a benefit that accrues or is received from a private
insurance policy origin from a contract
between the insured and the
insurance company for the explicit benefit of the claimant and its
receipt does not exonerate the first
respondent from liability to
discharge its obligations in terms of the RAF Act.
[22]
It appears to me that by insisting that it must be the plaintiff who
must have paid for past
medical and hospital expenses, the defendant
expects a minor child to be able to produce proof that she actually
incurred those
costs. Were that to be expected of child claimants, it
would certainly place a heavy financial burden on claimants.
[23]
Here is another issue, the defendant by raising the issue places
before this court indirectly
an agreement between GEMS and
plaintiff’s mother and also that which exists between the
plaintiff and GEMS, when it is not
privy to it.
[24]
I am of the view that, in determining whether or
not the expenses were in fact incurred, thereby reducing
the economic
value of the plaintiff’s estate rendering him or her poorer,
cannot be viewed with a jaundiced eye, because
to do so, would be to
generalize claims for past medical expenses and thus miss the unique
circumstances pertaining to each plaintiff
in each case.
[25]
In the circumstances, the plaintiff has succeeded in proving that she
incurred the past medical expenses as claimed. I accordingly
find
that the defendant is liable to compensate the plaintiff for the past
medical expenses.
ORDER
[26]
I accordingly grant judgment in favour of the Plaintiff as follows:
26.1
Defendant is ordered to pay to the Plaintiff the agreed sum
of R182 518.73. in respect of Plaintiff’s
claim for
past medical and hospital expenses.
26.2
Payment of the aforesaid amount in
paragraph 1 above shall be made directly to plaintiff’s
attorney of record, Labuschagne
van der Walt Inc., trust account,
details of which are as follows:
Account
Holder:
Labuschagne
van de Walt Inc.
Bank:
Absa
Branch
Code:
6[…]
Account
Number:
4[…]
Reference:
V[…]
26.3
The defendant shall pay interest of the aforesaid amount in paragraph
1 above at the prevailing prescribed
interest rate calculated from a
date 14 days after the granting of this Order, in accordance with
Section 17(3)(a) of the Road
Accident Fund Act, Act 56 of 1996, as
amended.
26.4
Defendant shall pay plaintiff’s costs of suit, in respect of
plaintiff’s claim for past medical
and hospital expenses up to
and including 31 January 2023, as taxed or agreed, such costs are to
include:
26.5
The costs of consultations between plaintiff’s counsel,
plaintiff’s attorney, plaintiff and witnesses
in preparation
for the trial on the issue of past medical and hospital expenses.
26.6
The costs of attendances at case management and Roll Call proceedings
as well as the costs of trial preparation
checklists, in respect of
plaintiff’s claim, for past medical and hospital expenses.
26.7
The costs in respect of the previous orders of Court which were costs
in the cause in respect of the issue
of past medical and hospital
expenses.
26.8
The costs of bundles and copies in respect of plaintiff’s claim
for past medical and hospital expenses.
26.9
The travelling costs of air tickets and the accommodation costs and
expenses, if any, incurred by or on behalf
of plaintiff in respect of
the attendances at trial in respect of plaintiff for the hearing of
the issue of past medical and hospital
expenses for 31 January 2023.
26.10
The costs of the trial for 31 January 2023.
26.11
The costs of plaintiff’s Counsel.
26.12
Declaring Mrs Esme van der Westhuizen a necessary witness.
26.13 Defendant is
directed to pay interest on plaintiff’s said taxed or agreed
costs at the prevailing prescribed interest
rate per annum calculated
from a date 14 days after
allocator
or written agreement to
date of payment.’
T.V.
NORMAN
JUDGE
OF THE HIGH COURT
APPEARANCES:
For the
PLAINTIFF:
ADV FROST
Instructed
by: KITCHINGS INC
48
Canon Street
UITENHAGE
REF:
AVS Kitching/sc/MAT15020
For the
DEFENDANT: MS PHILLIPS
ROAD
ACCIDENT FUND
4
th
Floor, Metropolitan Life
Building
Corner
Druly Lane & Caxton Street
EAST
LONDON
Link Number:
4058651
Claim
Number:
505/12485846/1003/0
Heard
on :
31 January
2023
Delivered
on:
01 February
2023
[1]
Case
No. 126/2020 (ECG)Heard 25 November 2022 Delivered 1 December 2022.
[2]
Case
No. 845/2021 (ECG)Heard 08 September 2022 Delivered 04 October 2022.
[3]
Children’s
Act No.38 of 2005
[4]
Act
56 of 1996.
[5]
1955
(2) SA 298
(N) at 299E.
[6]
Erasmus
page B1-130A under Rule18
[7]
At
page B1 2239.
[8]
Naylor
v Jansen
2007 (1) SA 16
(SCA) at 23A-B.
[9]
Naylor
(supra) at pages 23 B-C.
[10]
2012
(2) SA 371
(SCA) at 376 H-377A and 377C-E.
[11]
2012
(2) SA 346
at page 346.