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2023
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[2023] ZAECMKHC 58
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Els v Road Accident Fund (1554/2021) [2023] ZAECMKHC 58 (9 May 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION – MAKHANDA)
CASE
NO.: 1554/2021
Matter
heard on: 26 April 2023
Judgement
delivered on: 9 May 2023
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: YES
REVISED
In
the matter between: -
MARIANA
ELS
Plaintiff
And
THE
ROAD ACCIDENT FUND
Defendant
JUDGMENT
SMITH J:
[1]
On 10 November 2022, Rugananan J ordered the defendant to pay to the
plaintiff general damages
in the sum of R799 020, arising from
injuries suffered by the latter in a motor vehicle collision that
occurred on 12 April
2019. The issue of the defendant’s
liability in respect of past medical expenses was separated and
postponed
sine die
.
[2]
That issue came before me on 26 April 2023, when the plaintiff sought
judgment in the sum of R786 802.04
and ancillary relief. It was
common cause that the sum of R782 724.19 had been paid by the
plaintiff’s medical aid,
Discovery Health, and she had
personally settled the balance, being the sum of R4 077.85. The
plaintiff has also accepted
that expenses covered by the medical aid
and recovered from the defendant must be repaid to the former.
[3]
Ms
Jerram
, who appeared for the defendant, argued that the
plaintiff is only entitled to be indemnified in respect of the amount
paid by
her personally and not for payments made by her medical aid.
She submitted that the plaintiff did not suffer any pecuniary loss
in
respect of medical expenses covered by her medical aid and does
consequently not have
locus standi
in respect thereof.
[4]
The defendant had also raised this defence in
Morne van Heerden v
Road Accident Fund
(Case no. 845/2020, Gqeberha High Court,
delivered on 8 September 2022). In that matter, Rugunanan J, in a
well-reasoned judgment,
held that payments which a medical aid is
contractually obliged to make on behalf its insured are
res inter
alios acta
and the defendant could consequently not claim any
benefit of them. He consequently found that ‘payments by the
plaintiff’s
medical aid does not relieve the defendant of its
obligation to compensate the plaintiff for such expenses’. (See
also:
Bane and Others v D’ Ambrosi
2010 (2) SA 539
(SAC), at para 19)
[5]
In terms of the principle of
stare decisis
, I am constrained
to follow that decision unless I am persuaded that it is wrong. I can
find no fault with Rugunanan J’s
reasoning and, on the
contrary, consider it to be sound and compelling.
[6]
I can, in any event, not understand why the defendant has raised this
objection to the plaintiff’s
claim. It has accepted that it
would also have been liable to indemnify the plaintiff’s
medical aid for expenses covered
by it. And by paying that sum to the
plaintiff it would, in terms of the principle of subrogation, have
discharged that liability.
It can accordingly not claim any
conceivable prejudice.
[7]
I am therefore of the view that the plaintiff is entitled to judgment
compelling the defendant
to reimburse her for past medical expenses,
including those covered by her medical aid.
[8]
In the result there is judgment for the plaintiff in the following
terms:
1.
Payment of the sum of
R786 579.04 for past medical expenses.
2.
Interest on the
aforesaid amount at the legal rate from 11 November 2022 until the
date of payment.
3.
Costs of suit and
interest thereon, at the legal rate, from 14 days after
allocatur
to date of payment.
JE SMITH
JUDGE OF THE HIGH
COURT
Appearances:
Attorney
for the Plaintiff:
Mr.
McCallum
McCallum
Attorneys
High
Street
MAKHANDA
(Ref.:
Mr. McCallum)
Attorney
for the Defendant:
Ms.
Jeram
State
Attorneys
C/o
Yokwana Attorneys
10
New Street
MAKHANDA
(Ref.:
Ms. Jeram)