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[2014] ZAGPPHC 271
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Labuschagne v Road Accident Fund (39872/2012) [2014] ZAGPPHC 271 (15 May 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO:39872/2012
IN THE MATTER
BETWEEN:-
C
LABUSCHAGNE
...............................................................................................................
PLAINTIFF
and
THE ROAD ACCIDENT
FUND
......................................................................................
DEFENDANT
JUDGMENT
KUBUSHI, J
[1] The plaintiff
was injured in a motor vehicle collision. The matter was settled
between the parties and on 25 November 2008 the
court granted an
order against the defendant wherein an undertaking in terms of s 17
(4) of the Road Accident Fund Act 56 of 1996
(the Act), was granted
to the plaintiff.
[2] In terms of the
medico legal report of the occupational therapist, which formed part
of the record in the main case, it was
recommended that the plaintiff
attend Pilates training sessions using a rehabilitative approach.
Such exercises would facilitate
strengthening of postural muscles
known as core stabilisers. This would affect an improvement in
strength, flexibility and posture,
an improvement in postural
endurance, and relief of pain and discomfort. The plaintiff was
referred to a certified Pilate's instructor
using the Body Control
Pilates Method and/or the Pilates Conditioning Method (Top Condition
SA).
[3]Consequent to the
said undertaking and the recommendation of the occupational
therapist, the plaintiff went for and received
treatment from Kristen
Capazorio, a pilates' instructor. Capazorio, who gave evidence on
behalf of the plaintiff, is a certified
pilates' instructor. She has
the following qualifications: a degree in BA in Human Movement and
BASI - an international certification
in Pilates. She belongs to an
organisation called the South African Pilates Association which
certifies people giving Pilates.
[4] Capazario's
account for the services amounted to R17 960. She confirmed in her
evidence in court, which evidence was not challenged,
that the
plaintiff paid for the services in monthly instalments out of own
pocket. The defendant is refusing to pay the plaintiff
this amount on
the basis that Capazario is not registered with the Health
Professional Council of South Africa (HPCSA). The contention
is that
if the service provider does not belong to the HPCSA he or she will
not be able to do a proper diagnosis and as such the
service rendered
is not covered by the Act.
[5]
S 17 (4)
(o)
of
the Act provides
"(4) Where a
claim for compensation under subsection (1) -
(a)
includes
a claim for the costs of the future
accommodation
of any person in a hospital or nursing home or treatment of or
rendering of a service
or
supplying of goods to
him or her,
the
Fund or an agent shall be entitled, after furnishing the third party
concerned with an undertaking to that effect or a competent
court has
directed the Fund or the agent to furnish such undertaking to
compensate -..(My emphasis.)
[6] It is indeed so
that there is no specific provision of the Act or a regulation that
stipulates that treatment should be given
by a person registered
under the Health Professional Council of South Africa - the
defendant's counsel conceded as much.
[7]
The plaintiff's counsel submits that the scope of the 'services to be
provided' in terms of s 17 (4)
(a)
should
be regarded as wide enough to include the services of the Pilates'
instructor who rendered the services required by the plaintiff.
He
referred me in this regard to the judgment in
Brink
v Guardian Nasionale Versekering Bpk
1998
(1) SA 178
(OPA) at 180A - B/C. His contention is that if in that
case the court could widen the scope of 'services to be provided' to
include
the costs which might be incurred for the services of a
person who will assist the plaintiff in his farming activities, then,
in
his opinion such scope is wide enough to include the costs of the
services provided by the Pilates' instructor in this instance.
[8]
In the
Brink
-
case
above at 180A - B/C the court held that the services to be provided
in terms of s 43
(a)
of
the Agreement Establishing a Multilateral Motor Vehicle Accident Act
93 of 1989 (which article made provision for an undertaking
by the
Fund or its appointed agent to compensate the plaintiff for certain
costs which he or she might incur in the future) is
wide enough to
cover the costs which a plaintiff might incur in the future by
approaching somebody to assist him in his farming
activities as a
result of the injuries sustained in the collision which gave rise to
the action.
[9]
And in
Reyneke
NO v Mutual & Insurance Co Ltd
1992
(2) SA 417
(T) the court held that the rendering of services in terms
of s 8 (5) of Act 84 of 1986 (the old Act) was wide enough to cover
the costs which a
curatrix
bonis
would
incur to acquire the services of a person who would administer the
estate of a person referred to in s 8 (1) of that Act.
[10]
My view, therefore, is that, taking the above judgments in
consideration, the plaintiffs counsel is correct to submit in this
instance, that the scope of 'services to be provided' in terms of s
17 (4)
(a)
of
the Act is wide enough to include the services of the Pilates'
instructor who rendered the services required by the plaintiff.
The
qualifications and experience of the said instructor as testified in
the court are not in dispute. The methods which she applied
to
diagnose the plaintiff and the manner in which she treated her are
also not in dispute. And the defendant is in agreement that
the
services rendered were indeed required by the plaintiff.
[11]
Consequently the defendant is ordered to pay to the plaintiff the
amount of R17 960.
KUBUSHIJ
JUDGE
OF THE HIGH COURT
APPEARANCES
HEARD ON THE : 05
MAY 2014
DATE OF JUDGMENT
: 15 MAY 2014
PLAINTIFF'S
COUNSEL : ADV P J COETZEE
PLAINTIFF'S
ATTORNEY : CHRISTO BOTHA ATTORNEYS
DEFENDANT'S
COUNSEL : ADV L VORSTER
DEFENDANT'S
ATTORNEY : DYASON INCORPORATED