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[2018] ZAGPPHC 149
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Selfmed Medical Scheme v Langeveldt & Nel Attorneys Inc and Another (768/2013) [2018] ZAGPPHC 149 (12 February 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION,PRETORIA
CASE
NO:768/2013
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
SELFMED
MEDICAL SCHEME
PLAINTIFF
LANGEVELDT
& NEL ATTORNEYS INC
FIRST
DEFENDANT
MARINA
MONS N.O.
SECOND DEFENDANT
JUDGMENT
RANCHODJ:
[1]
The plaintiff, a
medical aid scheme, claims as against the first
defendant damages of R1 772 014.62 arising from its alleged
professional negligence
as attorneys in not prosecuting a claim for
recovery of past hospital, medical and related expenses against the
Road Accident Fund,
arising from the death of the second defendant's
husband and as a result the claim prescribed.
[2]
In the alternative, the plaintiff claims the damages from the second
defendant in her capacity as executrix
in
the estate of her
late husband, who
was
a member of the plaintiff and on whose behalf the plaintiff alleges
it disbursed the hospital, medical and other expenses.
[3]
It is
common cause between the parties that the second defendant's
late husband, Christiaan Anton Mons (the deceased) was involved in
a
motor vehicle collision on 1 September 2006 because of which he died
on 10 February 2007. The deceased was the driver of one
(with
registration letters and numbers DOR 970 MP) of the three motor
vehicles involved in the collision.
[4]
Plaintiff alleges
that the accident was caused by the sole negligence
of a De Neycker who was the driver of a motor vehicle with
registration letters
and numbers MKZ 583 GP.
[5]
It is also common cause
or not in dispute that-
-
the deceased was at all relevant times and in particular during the
period 1 September 2006 to 1O February 2007 a member of the
plaintiff
medical aid scheme.
[6]
During the period between the date of the accident and the date of
death of the deceased, hospital, medical and other expenses
were
incurred by him or on his behalf. (For the sake of convenience, I
will refer to all these expenses as 'the medical expenses'
and to the
second defendant as 'the executrix'.)The plaintiff says it paid most
of the medical expense on behalf of the deceased.
As the deceased was
its member and beneficiary, he was entitled to payment by the
plaintiff of the medical expenses he incurred.
However, in terms of
Act No 56 of 1996 (the Act) the Road Accident Fund (the RAF) is
liable to pay damages (including,
inter alia,
medical
expenses) for personal injuries sustained by a claimant because of
the negligent driving of the driver (the insured driver)
of a motor
vehicle.
[7]
The second
defendant instructed the first defendant in August 2007 to
lodge claims for personal injury and for loss of support on behalf of
herself and her minor children against the RAF due to the death of
the deceased in the motor vehicle collision on 1 September 2006.
The
first defendant duly did so, and the claims were.settled by the RAF
in March 2010.
[8]
The plaintiff says
that as a member of the plaintiff medical scheme
the deceased was bound by its rules. Its case is that in terms of
rule 17 of the
scheme the deceased, and after his death the executrix
of his estate, were obliged to pursue the claim against the RAF and
reimburse
the plaintiff those amounts which it had paid on behalf of
the deceased that may be recovered from the RAF. Rule 17 provides as
follows:-
.
'17.
Costs recoverable from other parties
17.1
Costs incurred by a Beneficiary for which another
party may be
legally responsible, including a Service Provider, do not qualify for
Benefits - unless the Scheme is satisfied that
it is unlikely that
the Beneficiary will receive sufficient compensation from the other
party, or recover it in terms of legislation
covering that situation.
17.2
However, The Scheme may in its discretion advance
amounts to, or for
the benefit of, the Beneficiary to the extent that they do not exceed
Benefits which normally would have been
payable.
17.3
The Member must inform the Scheme in the manner,
and within the
period, applicable to qualifying claims of the possible claim and the
costs involved. The Beneficiary must lodge
a claim against the
relevant party for the relevant costs within the prescribed period
and in the prescribed manner - and keep
the Scheme informed of
developments.
17.4
If the Beneficiary does not prosecute the claim to the
satisfaction
of the Scheme, the Beneficiary must cede the claim to the Scheme at
its request - and thereafter provide such assistance
as may be
reasonably expected by the Scheme.
17.5
The Beneficiary must repay from the compensation received
from such
other party, the advanced amounts to the Scheme. Any deficit between
the amounts advanced by the Scheme and that repaid
to the Scheme must
be paid to the Scheme by the Member upon request.'
[9]
Alexander Forbes
Accident Compensation Technologies (Pty) Ltd
(Alexander Forbes), as its agent, represented the plaintiff in its
dealings with the
defendants. Alexander Forbes had instructed the
first defendant to·contact the executrix and lodge a claim for
the medical
expenses with the RAF.
[10]
The Plaintiff says Alexander Forbes found
out on or about 16 April
2010 that the first defendant had settled the personal injury and
loss of support claims of the executrix
in her personal capacity and
of her minor children with the RAF and that no claim was instituted
for the medical expenses incurred
by the deceased and which were paid
for by the plaintiff.
[11]
As I said, the plaintiff's claim against the executrix
is in the
alternative to that against the first defendant. The basis for
the alternative claim is that as executrix of the
deceased estate
second defendant was under a duty to institute action for the medical
expenses paid by the plaintiff but, in breach
of her duty, failed to
do so. Alternatively, she failed to cede the claim to the plaintiff,
to enable it to pursue its claim independently,
despite demand by the
plaintiff.
[12]
The
defendants deny having been instructed by the plaintiff to lodge any
claim against the RAF for the medical expenses or that
they were
obliged to do so and also raised several other defences.
They deny that the deceased's estate would have
been entitled to
recover the medical expenses from the RAF. It is averred that the
plaintiff has not pleaded any facts to show
that the RAF would have
been legally responsible to pay all the deceased's medical expenses
or any portion thereof nor the amount
that would have been
recoverable from the RAF. They also deny that the medical expenses
were necessary expenses or were reasonably
incurred or
that they were reasonable amounts. The defendants also
deny that the collision was caused solely
by De Neycker, the driver
of motor vehicle with registration MKZ 583 GP. They aver that the
deceased was also negligent, which
negligence contributed to the
collision. The claim would therefore have been subject to
apportionment in terms of the Apportionment
of Damages Act No. 34 of
1956. The defendants also aver that the executrix of the estate was
not bound by the rules of the plaintiffs
medical aid scheme. Even if
she was, on a proper interpretation of rule 17 there was no
obligation on her to claim from the RAF
particularlybecause
plaintiff alleges in its particulars of
claim
[1]
that the deceased, as a
beneficiary, was entitled to the payment of medical expenses on his
behalf by the plaintiff. Accordingly,
the plaintiff has not disclosed
any cause of action that the executrix had any duty to claim any
amount from the RAF and repay
it to the plaintiff. Finally, the
executrix denies that she was ever requested to cede any claim to the
plaintiff.
[13]
The second defendant also raised a
special plea of prescription. She
pleaded that in accordance with rule 17 of plaintiff's rules the
medical expenses for which the
RAF was legally liable were not
medical benefits to which the deceased was legally entitled. The
medical expenses were paid by
the plaintiff in the exercise of its
discretion in terms of rule 17. It was in fact a loan to the deceased
and was therefore claimable
from the deceased's estate within a
period of three years from his date of death on 1O February 2007.
More than three years had
elapsed when summons was issued in the
present action for recovery of the loan hence the claim has
prescribed.
[14]
The plaintiff replicated to the special
plea. It said it obtained
knowledge of the first defendant's failure, alternatively the
executrix's failure to recover the medical
costs from the RAF only
after the loss of support claims of the executrix and her children
were finalised on or about 3 March 2010.
Accordingly, says plaintiff,
since summons was issued in this matter on 15 January 2013 the claim
has not prescribed.
[15]
In what follows it will become apparent that the
plaintiff had been
led to believe by attorney LC Nel of the first defendant that he had
in fact lodged a claim with the RAF for
the medical expenses and that
he was ready to issue summons to pursue the claim further.
Thereafter, he informed Mr Harry Nel,
an accountant who had
apparently assisted the second defendant to wind.up the deceased's
estate that pleadings in the matt r had
closed and he was awaiting a
trial date. It appears from the evidence that the loss of support
claims were finalised in March 2010
and that it was in fact at that
time that Alexander Forbes became aware that the claim for medical
expenses of the deceased had
not been lodged. Accordingly, the
special plea of prescription of the claim should in the normal course
fail.
[16]
However,
from the evidence it is clear that Alexander Forbes was aware that it
was the executrix who had to instruct the first defendant
to lodge a
claim with the RAF on behalf of the deceased estate. That is why it
told Mr L C Nel that he should obtain instructions
from the executrix
to do so. In a letter
[2]
dated
26 June 2008 addressed to the first defendant Ms Monice Roodt of
Alexander Forbes wrote-
'Dear
Sir
THIRD
PARTY CLAIM: EXECUTOR 080 CA MONS: 49027732
Your
reference is LC Nel/GN/1313/M77.
With
reference to our telephonic conversation earlier today, it is
confirmed that you will make contact with the executor of the
estate
and proceed with
a
claim obo the executor
against the
RAF. [My emphasis.]
The
executor of the estate is Mr Harry Nel, contact number (017) 712
1301. We also confirm that our client, Selfmed Medical Scheme,
will
be responsible for the legal fees in recovering the medical expenses
from the RAF. They however requested that the fees be
recovered from
the proceeds received from the RAF. Once the matter has been
finalised, you are requested to provide us with a bill
of costs.
Attached
hereto the most recent schedule, listing all the accounts paid by the
scheme. We are also in possession of most of the
accounts, and will
provide them to you on request.'
The
letter is signed by Ms Monice Roodt who testified during the trial
and confirmed the contents of the various letters and emails
she
wrote to the first defendant and its correspondent in Pretoria as
well as to the plaintiff.
[17]
In a file
note dated 'September 2008' which was discovered by the
first defendant and referred to in evidence during the trial when Ms
Roodt
confirmed the correctness of the note the author (apparently a
staff member of the first defendant) made,
viz-
.,
I
received a call from Monice of Alexander Forbes.
She
wanted to know if we have filed a claim with the RAF,
using the
Executor of the deceased.
She
says she has sent us a letter but have had no response from us. Her
phone nr is . . . .' (My italics.)
[18]
On 9 September 2008 LC Nel wrote to Alexander Forbes and said
'RE:
CA MONS// THIRD PARTY CLAIM
We
have now completed our investigation into the accident in which Mr
Mons was killed.
We
acted on behalf of the wife of the late Mr Mons whose child also
injured
(sic)
during the accident.'
[19]
On 30 September 2008 LC Nel again wrote to Alexander Forbes and
said-
'RE:
C A MONS //THIRD PARTY CLAIM
We
refer to the above-mentioned
instruction.
We
are ready to proceed with
a
Summons
in the matter against
the RAF. Our attorneys in Pretoria however insist that we work on a
contingency basis.
The
normal fee structure is that they will retain 30% of all the monies
that they recover on behalf of Alexander Forbes.
Should
the firm be unsuccessful they will not charge any fees.
Kindly
confirm that this arrangement is in order so that we can proceed.'
(My italics.)
[20]
Alexander Forbes responded in a letter dated 6 November 2008 that
first
defendant share the contingency fee with itself equally as
plaintiff was only prepared to pay an all-inclusive contingency fee
of 30% on the basis that it includes Alexander Forbes' fees. Monice
Roodt wrote-
'We
are of the opinion that, as we have already quantified the claim and
obtained copies of the necessary accounts for submission
to the RAF,
you should consider sharing the proposed contingency fee of 30% with
Alexander Forbes.
We
would propose that you retain 15% and we retain 15% for our services
rendered. We await your response as a matter of urgency,
to avoid any
further delays in this matter.'
[21]
The first defendant did not revert to Alexander Forbes about this
proposal.
[22]
It is apparent that in the letter of 26 June 2008 Mrs Roodt tells the
first
defendant to contact the 'executor'- not that the plaintiff is
acting on behalf of the executrix of the deceased estate. In this
regard Mrs Roodt, who represented Alexander Forbes conceded whilst
testifying under cross examination that no agreement was
concluded between either the plaintiff or Alexander Forbes and the
first defendant. She also conceded that she did not appoint
Mr L C
Nel or the first defendant on behalf of the plaintiff.
[23]
On 20 April 2009 Harry Nel of Chartered Accountants Nel, Prenzler
&
Potgieterwrote to the first defendant (marked for the attention of Mr
LC Nel) -
'BOEDEL WYLE
CA MONS
Ons
verneeem graag van u hoe ver die derdeparty eis in bogenoemde boedel
gevorder het.' (Loosely translated: 'ESTATE LATE CA MONS.
We enquire
from you how far the third party claim in the abovementioned estate
has proceeded.')
[24]
Mr LC Nel replied on 11 May 2009-
'
RE
: BOEDEL WYLE CA MONS
Die
Pleitstukke in bovermelde saak is gesluit. Ons het aansoek gedoen vir
'n verhoor datum.
.
. . .' ('The pleadings in the abovementioned matter are closed. We
have applied for a trial date.')
[25]
Mr Harry Nel assisted the executrix in the administration of the
estate and no doubt for this reason enquired from L C Nel
about
progress of the claim for the medical expenses.
[26]
It is clear from the correspondence between both Alexander Forbes and
Mr Harry Nel and the first defendant that Mr LC Nel gave the distinct
impression that he had lodged a claim for the medical expenses,
thereafter had issued summons and that pleadings had closed and he
was awaiting a trial date. This implies that he had obtained
the
necessary mandate from the executrix to pursue the claim for the
medical expenses.
[27]
The question that arises is whether the executrix had in fact
instructed
the first defendant to pursue the claim for medical
expenses. Mrs Mons testified at the behest of the plaintiff after she
was made
available by the defendants although she has been cited as
the second defendant in her capacity as the executrix of her
husband's
estate. She testified under cross examination that she
did not claim for her late husband's medical expenses but only for
herself and her children. She also said she had no contact with the
plaintiff after the accident. No one asked her to claim for
the
medical expenses paid by the plaintiff and she did not even know that
she could do so. As far as Mrs Mons was concerned, the
plaintiff paid
the expenses and that was it. No one had told her that she should
cede the claim to the plaintiff. She testified
that the estate has
already been wound up.
[28]
There is nothing to gainsay Mrs Mons' evidence. The plaintiff dealt
with
the first defendant without a clear mandate from the executrix
to do so. Furthermore, an attorney cannot institute an action without
a mandate from the proper plaintiff, i.e. the executrix
in casu.
The fact that the plaintiff undertook to pay the first
defendant's fees does not take the matter further insofar as its
claim against
it is concerned.
[29]
It is possible (I put it no higher than that) that the
first
defendant did obtain instructions from either Mrs Mons as executrix
or from her agent Mr Harry Nel, else why would Mr LC
Nel say he had
instituted action and was awaiting a trial date unless he was being
untruthful. But then it is the executrix who
may have a claim against
the first defendant for not carrying out her instructions or letting
the claim prescribe. There is no
nexus between the plaintiff and the
first defendant and the claim against the first defendant must
accordingly fail.
[30]
In my view, the plaintiff should have submitted a claim against
the
deceased estate. It did not do so. The estate has been wound up and
more than three years elapsed from the date of death of
the deceased
when it instituted the present claim against the second defendant. It
does not avail the plaintiff to say it only
became aware that first
defendant did not lodge a claim when the loss of support claims were
finalised in March 2010 and that the
three year prescription period
began to run from that date hence the issuing of summons in January
2013 interrupted the running
of prescription. It was aware, by its
own admission, with reference to Rule 17 of its rules that the
deceased estate was liable
to it for the expenses it paid on its
behalf.
[31]
Mr Becker, the principal officer of the plaintiff, conceded under
cross
examination that he did not have any knowledge of the
events which occurred long before his appointment in September 2014.
However,
he was in a position to explain the plaintiffs rules and to
interpret them. He readily conceded that there was no obligation, in
Rule 17.3 or anywhere else, on the executrix to institute action
against the RAF. In my view, the concession was properly made.
As I
said, the proper course would have been for the plaintiff to submit a
claim against the estate.
[32]
The plaintiff also alleged that it had demanded cession of the claim
from the executrix but she had failed to do so 'despite demand'.
During her testimony, the executrix denied having been asked to
cede
the claim to the plaintiff. No evidence was led by the plaintiff as
to the manner in which and when the demand was made. The
claim
against the second defendant on that basis must therefore also fail.
[33]
In light of the conclusions I have come to it is not necessary for me
to deal with the other defences raised by the defendants.
[34]
The plaintiff's claim against both defendants is dismissed with
costs.
RANCHOD
J
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
on behalf of Plaintiff : Adv. J.F Grobler
Instructed
by: FJ Jordaan Inc.
Counsel
on behalf of Defendant: Adv. F.H Terblanche (SC
Instructed
by : Savage Jooste & Adams
Date
heard: 1 June 2017
Date
delivered: 12 February 2018
[1]
Para 5.1 of the particulars of claim
[2]
Annexure "C" to the particulars of claim .