About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2023
>>
[2023] ZAFSHC 354
|
|
Nosana v Road Accident Fund (1092/2021) [2023] ZAFSHC 354 (8 September 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been redacted
from this document in compliance with the law and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no:
1092/2021
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
SONDIYAZI
KHANYISA NOSANA
and
ROAD
ACCIDENT FUND
PLAINTIFF
DEFENDANT
JUDGMENT
BY:
MOLITSOANE, J
HEARD
ON:
6 JUNE 2023
DELIVERED
ON:
The judgment was handed down electronically by
circulation to the parties’ legal representatives by email and
released to
SAFLII on 08 SEPTEMBER 2023. The date and time for
hand-down is deemed to be 08 SEPTEMBER 2023 at 14h30.
[1]
The Plaintiff instituted a claim for damages
arising out of injuries sustained from the negligent driving of a
motor vehicle. The
defendant conceded liability on the basis that it
shall pay 100% of the plaintiff’s proven or agreed damages. The
issues
of future medical expenses, future loss of earnings as well as
general damages were settled on the basis as set out in the order
below.
[2]
The past hospital and medical expenses remain unresolved. It needs to
be recorded that the plaintiff originally
claimed an amount of
R471 511-93. The defendant paid an amount of R409 714-17
leaving a balance of R61 797-76. It
is this balance which is the
subject of this dispute.
[3]
During the hearing of this matter, the parties agreed that the expert
reports of the plaintiff attached to
their respective affidavits be
handed in as evidence in terms of Rule 38(2). Counsel for the
Defendant also admitted on behalf
of the Defendant the correctness of
the contents of the reports aforesaid. No expert reports were handed
into evidence on behalf
of the Defendant. The Defendant also handed
into evidence the affidavit of Tanusha Tia Hoosen, an employee of
Discovery Medical
Aid Scheme in which she set out the expenses
incurred by her employer as past medical and hospital expenses. It is
undisputed that
the Plaintiff was a member of Discovery Medical Aid-
Scheme. The expenses incurred are also not in dispute.
[4]
The crisp issue for determination in this case is whether the
plaintiff is entitled to claim the expenses incurred
by the medical
aid on behalf of the Plaintiff.
[5]
The opposition to the payment of the balance of the past medical aid
was based on the Internal Communique from the
Acting Chief Claims
Officer of the defendant addressed to all regional managers of the
defendant. The said communique instructed
the regional managers as
follows:
“
All
Regional Managers must ensure that their teams implement the attached
process to assess claims for past medical expenses. All
RAF offices
are required to assess claims for past medical expenses and reject
the medical expenses claimed if the Medical Aid
has already paid for
the medical expenses. The regions must use the prepared template
rejection letter (see attached) to communicate
the rejection. The
reason to be provided for the repudiation will be that the claimant
has sustained no loss or incurred any expenses
relating to the past
medical expenses claimed. Therefore, there is no duty on the RAF to
reimburse the claimant. Also attached
is a list of Medical Schemes.
Required outcome: immediate implementation of the process and 100%
compliance to the process.’’
[6]
As a starting point, it appears that the defendant originally had no
problem in paying for past hospital and medical
expenses incurred by
Plaintiff which arose as a result of the injuries sustained and
ultimately settled by the Medical Aid Scheme.
The only reason that
the defendant now refuses to make a payment of the balance is as a
result of the communication as set out
above. During the hearing of
this matter, no submissions were made that the original payment for
past medical expenses were made
in error or were not due, or even
still that were not paid for by the medical aid scheme. Counsel for
the Defendant did not make
any submissions as to why the past medical
expenses paid, differed from the ones left for later adjudication. It
is also not the
case for the Defendant that the past medical expenses
were not incurred.
[7]
Section 17(1) of the Road Accident Act, 56 of 1996 obliges the RAF,
subject to certain exclusions and limitations, to compensate
any
person where injury has been sustained or death occurred as a result
of the negligent driving of a motor vehicle. It is important
to note
that the Defendant in this case seeks to escape liability on the
basis that the past medical expenses were paid for, by
the medical
aid scheme.
[8]
It is to be noted that the damages the plaintiff claims must be
assessed at the time the injury was sustained. It
is in my view
irrelevant if the medical aid undertook to pay for his medical
expenses or even indeed paid for them. The issue of
whether the
Plaintiff had a medical aid or not has nothing to do with the
defendant. The defendant, has a statutory duty to make
good the
damages suffered by the Plaintiff. I align myself with the sentiments
expressed in
Discovery
Health(Pty) Ltd v RAF and Another
[1]
in which the following was said:
“
[26]
Certain benefits are considered while others are not considered in
the calculation of the claimant’s claim for damages
against the
first respondent. It is trite that social security benefits a
claimant receives from the State are deductible from
compensation the
first respondent is liable for. The reason for this is founded on the
principle that delictual damages are meant
to restore the claimant to
the position he was in prior to the commission of the delict and that
he should not unduly benefit by
receiving double compensation for
his/her loss. (see
Syosset and others v Santa Ltd
above)
[27]
As can be noted from the above exclusions and limitations, the RAF
Act does not provide for the exclusion of benefits the victim
of a
motor vehicle accident has received from a private medical scheme for
past medical expenses. The principle was expressed by
the court in
the matter of
D’Ambrosini v Bane
2006 (5] SA 121
(C) in
the following words:
“
medical
aid scheme benefits which the plaintiff has received, or will receive
are not deductible from in determining his claim for
past and future
hospital and medical expenses
.’’
[28]
In
Rayi NO v Road Accident Fund
(9343/2000)
[2010] ZAWCHC 30
(22 February 2010) the court stated the principle thus:
“
payment
by Bonitas of the plaintiff’s past medical expenses does not
relieve the defendant of its obligation to compensate
the plaintiff
for past medical expenses.’’
[29]
It is apparent from the above statements of the legal position that
the first respondent is not entitled to seek to free itself
of the
obligation to pay full compensation to victims of motor vehicle
accidents. Thus the directive challenged in the present
proceed is
outside the authority given by the enabling statute. More
specifically the directive is inconsistent with the express
provisions of section 17 and is, consequently, unlawful.”
[9]
It needs to be noted that the liability of the Defendant towards the
Plaintiff arises entirely from the liability
imposed by section 17(1)
of the Road Accident Fund Act and that cause of action is not at all
dependent on the contractual relationship
between the Plaintiff and
the medical aid scheme. The Defendant remains liable to the Plaintiff
for the past medical expenses notwithstanding
that the medical aid
scheme had paid the said expenses. The payment by the medical aid
scheme of the expenses of the Plaintiff,
is an issue between the
Plaintiff and Defendant and has nothing to do with the defendant. The
Defendant is thus liable for payment
of the past medical expenses.
With regard to costs, same follow the cause. I accordingly make the
following orders:
ORDER
1.
The Defendant shall pay to the Plaintiff the sum of
R2 061 630.53
(TWO MILLION SIXTY-ONE THOUSAND SIX HUNDRED AND THIRTY RAND AND
FIFTY-THREE CENTS)
within 180
(one hundred and eighty)
days hereof, in respect of the Plaintiff's claim against the
Defendant for the following heads of damages:
1.1
Past Hospital and Medical Expenses
R61 630.53
1.2
Past and Future Loss of Earnings
R1 300 000.00
1.3
General Damages
R700 000.00
2.
In the event of the aforesaid amount not being paid timeously, the
Defendant shall be liable for
interest on the amount at the
prevailing interest rate, calculated from the 15
th
calendar day after the date of this Order to date of payment.
3.
The Defendant shall furnish the Plaintiff with an unlimited
Undertaking in terms of Section 17(4)(a)
of Act 56 of 1996
for payment of
100%
of the costs of future
accommodation of the patient in a hospital or nursing home or
treatment of or rendering of a service or
supplying of goods to the
patient resulting from a motor vehicle accident on
2nd April
2019
, to compensate the patient in respect of the said costs
after the costs have been incurred and upon proof thereof.
4.
The Defendant shall pay the Plaintiff’s taxed or agreed party
and party costs on the High
Court scale in respect of both the merits
and quantum, up to and including
6
th
June
2023
, and notwithstanding, and over and above the costs referred
to in paragraph 5.2.1 below, subject thereto that:
4.1
In the event that the costs are not agreed:
4.1.1
The Plaintiff shall serve a Notice of Taxation on the Defendant’s
attorney of record;
4.1.2
The Plaintiff shall allow the Defendant 180
(one hundred and
eighty)
days from date of allocatur to make payment of the taxed
costs; and
4.1.3
Should payment not be effected timeously, the Plaintiff will be
entitled to recover interest at the
prevailing interest rate on the
taxed or agreed costs from 181
(one hundred and eighty-one)
days
from date of allocatur to date of final payment.
4.2
Such costs shall include, as allowed by the Taxing Master:
4.2.1
The costs incurred in obtaining payment of the amounts mentioned in
paragraphs 2 and 5 above;
4.2.2
The costs of and consequent to the appointment of counsel, including,
but not limited to the following:
for trial, including, but not
limited to counsel’s full fee for
6
th
June
2023
, and the preparation and reasonable attendance fee of
counsel for attending:
4.2.3
The reasonable and taxable preparation, qualifying and reservation
fees, if any, in such amount as
allowed by the Taxing Master, of the
below experts;
4.2.3.1
Dr D Hoffmann, Plastic, Reconstructive and cosmetic surgeon;
4.2.3.2
Dr MB Deacon, Orthopaedic surgeon;
4.2.3.3
Drs van Dyk and partners, Radiologists;
4.2.3.4
Dr D Boungou-Poati, Neurosurgeon;
4.2.3.5
Ms L Grootboom, Clinical psychologist;
4.2.3.6
Dr LS Leshilo, Psychiatrist;
4.2.3.7
Ms F Steyn, Occupational Therapist;
4.2.3.8
Ms C Steenkamp, Industrial psychologist;
4.2.3.9
Mr K Stemmet, Grid Forensics, Forensic auditors;
4.2.3.10
Mr R Immerman, GW Jacobson Consulting Actuaries.
5.
The amounts referred to in paragraphs 2 and 4 will be paid to the
Plaintiff’s attorneys,
A Wolmarans Incorporated, by direct
transfer into their trust account, details of which are the
following:
NAME OF ACCOUNT
HOLDER: A WOLMARANS INC
NAME OF BANK &
BRANCH: ABSA
BANK, NORTHCLIFF
ACCOUNT
NUMBER: [....]
BRANCH
CODE: 632 005
TYPE OF
ACCOUNT: CHEQUE
(TRUST)
REFERENCE:
[….]
P
E MOLITSOANE, J
On
behalf of the Plaintiff: Adv.
H.J, Cilliers
Instructed
by: A
WOLMARAANS INC
BLOEMFONTEIN
On
behalf of the Defendant: Ms.
K. Mkwanazi
Instructed
by: The
State Attorney
BLOEMFONTEIN
[1]
(2022/016179) [2022] ZAGPPHC 768(26 October- 2022).