About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Durban
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Durban
>>
2017
>>
[2017] ZAKZDHC 4
|
|
Genesis Medical Scheme v McCarthy Limited (17025/2009) [2017] ZAKZDHC 4 (15 February 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, DURBAN
NOT
REPORTABLE
Case
No: 17025/2009
In the
matter between:
GENESIS
MEDICAL
SCHEME PLAINTIFF
and
MCCARTHY
LIMITED DEFENDANT
Coram:
Kruger J
Heard
:
6 February 2017
Delivered:
15 February 2017
ORDER
1.
The Defendant’s special
plea is dismissed with costs.
JUDGMENT
KRUGER
J:
[1]
This matter serves
before me as a stated case in terms of the provisions of Rule 33,
relating to a special plea raised by the Defendant.
The history
of the matter has been abbreviated in the agreed statement of facts.
In order to fully comprehend the dispute,
I will reiterate the
background facts.
[2]
On the 13
th
January 2008 Ms Roxanne Joubert (“Joubert”) was injured
when a Yamaha Rhino 660 all-terrain utility motor vehicle (“Rhino
vehicle”) tipped and rolled over. At the time the Rhino
vehicle was driven by a Mr Lloyd Vercuil at the Springfield
racetrack.
[3]
Joubert sustained
serious injuries and underwent numerous operations in Durban and Cape
Town. Joubert was a member of the
Plaintiff and in terms of her
membership of the Plaintiff, the Plaintiff became liable to pay and
did pay medical expenses in the
sum of R435 802,93.
[4]
By letter dated 27
th
February 2008, Joubert consented and recorded that she would have no
objection to the Plaintiff instituting a third party claim
with the
purpose of recovering its medical expenses.
[5]
On or about 31
st
January 2009, Joubert instituted an action against the Defendant
under Case No. 11067/2009 for the recovery of damages arising
from
the injuries she suffered as a result of the incident hereinbefore
described. Of importance is paragraph 14.1.3 of her
amended
particulars of claim which reads as follows:
“
14.1.3 The Plaintiff abandons
her claim in respect of past medical expenses in the amount of
R313 707,89 as reflected in “PC2”
attached hereto,
as Genesis Medical Scheme is claiming these amounts from the
Defendant.”
[6]
Of importance too is the fact that the Defendant did not plead to the
aforesaid paragraph 14.1.3.
[7]
On or about 11
th
December 2009 the Plaintiff, under Case
No. 17025/2009 instituted the present action in respect of the
medical expenses hereinbefore
mentioned.
[8]
It appears from the documents and affidavits in the court file that
attempts were made to consolidate the two actions (Cases
11067/2009
and 17025/2009). This consolidation was not achieved for
various reasons,
inter alia
, that there were numerous delays
in respect of expert testimony and ultimately settlement
negotiations.
[9]
On or about 20
th
January 2015 Joubert and the Defendant
entered into a settlement agreement in terms of which the Defendant
agreed to pay Joubert
the sum of R727 967,16 “in full and
final settlement of the
Plaintiff’s claim
, interest and
costs”. (my emphasis). Thereafter Joubert, by notice
dated 18
th
February 2015 withdrew her action against the
Defendant.
[10]
In the present action the Plaintiff contends that arising from
Joubert’s express consent (Letter of the 27
th
February 2008) read with paragraph 14.1.3 of her amended particulars
of claim, her claim against the Defendant for the recovery
of the
said medical expenses has been subrogated and transferred to the
Plaintiff.
[11]
The Defendant, in a special plea, contends that by virtue of the
settlement agreement entered into between Joubert and the
Defendant,
the Plaintiff’s claim for past medical expenses has been
compromised, “thereby terminating any rights the
Plaintiff
might have had in respect of any future claim that arose from the
incident”.
[12]
The Defendant has further pleaded that the Plaintiff’s claim
and Joubert’s claim arose from a single cause of action.
A single cause of action remains incapable of sustaining a plurality
of claims. This is referred to as the ‘once and
for all”
rule.
[13]
Corbett JA, described the once and for all rule as:
“
The “once and for all”
rule applies especially to common law actions for damages in delict,
though it has also been
applied to claims for damages for breach of
contract. …… Expressed in relation to delictual claims,
the rule is to
the effect that in general a Plaintiff must claim in
one action all damages, both already sustained and prospective,
flowing from
one cause of action.”
Evins
v Shield Insurance Company Ltd
1980(2)
SA814(AD) at 835 B-D
He
further held that the purpose of the once and for all rule is to
“prevent a multiplicity of actions based upon a single
cause of
action and to ensure that there is an end to litigation” (
Evins
v Shield Insurance Company Ltd
–
supra at 835 E
)
[14]
Mr Eia, on behalf of the Plaintiff, has submitted that the once and
for all concept is based on the doctrine of
res judicata
.
As there was no judgment granted against Joubert, he has submitted
that
res judicata
does not apply and the Plaintiff is
accordingly not precluded from proceeding with the current action.
Mr Eia’s submission
is, with respect, based upon an incorrect
reading and interpretation of Corbet JA’s judgment in
Evins
v Shield Insurance Company Ltd
(supra). In the
judgment, particularly at page 835 – F, the learned Judge
commented that the once and for all rule
is similar and “closely
allied” to the principle of
res judicata
. He did
not find that
res judicata
was an element of the once and for
all rule as I understood Mr Eia’s submission to be.
[15]
In the agreed statement of facts in terms of Rule 33, the parties are
ad idem
that both the Joubert action and the present claim
arise from a single cause of action.
[16]
Given this concession by the Plaintiff, coupled with the authorities
referred to earlier in this judgment, it appears that
the Defendant’s
special plea is a sound one. However, there is another aspect
that warrants further consideration.
[17]
As stated earlier in this judgment, the Defendant was at all times
aware that the claim for past medical expenses had been
transferred
to the Plaintiff. Paragraph 14.1.3 of Joubert’s
particulars of claim is proof of this. By failing
to plead to
the said paragraph 14.1.3 of Joubert’s particulars of claim,
the Defendant agreed to what was pleaded.
The Defendant agreed
or admitted this fact. (See Rule 22(3)). Absent the consent of
the Defendant, Joubert was not entitled
to divide or separate or
split her right of action against the Defendant.
Spies v
Hansford and Hansford Ltd
1940 TPD 1
;
Lief,
NO
v Dettmann
1964(2) SA252(AD) at 275 F
;
Evins v
Shield Insurance Company Ltd
(supra)
at 827B
.
[18]
There is no indication on the papers before me (prior to the filing
of the amended plea which contained the said special plea)
that the
Defendant, when notified of Joubert’s transfer of the
right to claim past medical expenses to the Plaintiff,
objected to or
opposed such transfer. The Defendant accepted that another
action would be instituted for the recovery of
past medical expenses
and proceeded with the litigation/action instituted by Joubert on
this basis. When the Defendant entered
into the settlement
agreement with Joubert, it did so on two bases – viz (a) that
there was another action pending against
it for past medical expenses
(indeed it had already received the summons and had defended the
action) and (b) it settled the action
with Joubert based on her claim
as is set out in the Particulars of Claim. As stated earlier,
this claim excluded past medical
expenses.
[19]
I am accordingly satisfied that the Defendant consented either
expressly or tacitly, or both, to the separation or splitting
of the
right of action. As such the Defendant cannot now object to the
Plaintiff’s action which has been instituted
against it.
[20]
I accordingly make the following order:
1.
The Defendant’s
special plea is dismissed with costs.
________________
KRUGER
J
DATE
OF HEARING:
6 February 2017
DATE
OF JUDGMENT:
15
February 2017
FOR
THE PLAINTIFF:
P Eia instructed by KSS Keller Snyman Schelhase
FOR
THE
DEFENDANT:
Callum SC instructed by Woodhead
Bigby Inc.