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2024
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[2024] ZAECMKHC 67
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Bester obo C & E.N v Road Accident Fund (3200/2019) [2024] ZAECMKHC 67 (30 May 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION – MAKHANDA)
Case
No: 3200/2019
(Consolidated
Claims Case Nos. 3200/2019 & 3201/2019)
In
the matter between:
JOHAN
BESTER obo C[...]& E[...]
N[...]
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
METU AJ:
INTRODUCTION
1.
These are two consolidated cases in which
the plaintiff acts as curator
ad litem
for both minor children. This is the fifth time this matter has come
before the Court, and the other heads of damages have been
settled
save for loss of support and past hospital and medical expenses. Past
hospital and medical expenses are before me for determination,
and by
agreement, the loss of support claim is separated and postponed for
later determination
sine die.
2.
Ms. Watt for the Plaintiff seeks to adduce
evidence pertaining to past hospital and medical expenses by way of
affidavit, which
is permissible in terms of Rule 38 (2) of the
Uniform Rules of Court. Ms. Futshane, for the Defendant, acquiesced
to evidence being
brought by way of an affidavit as she had no
intention of cross-examining the witness.
3.
According to Rule 38 (2) a Court has the
discretion to depart from the default position that oral evidence be
led as a norm, where
the following factors are taken into
consideration:
3.1.
the nature of the proceedings;
3.2.
the nature of the evidence;
3.3.
whether the application for evidence to be
adduced by way of affidavit is by agreement and
3.4.
whether it is fair to allow evidence on
affidavit.
4.
An answer to the above-enumerated factors,
what is before this Court for determination is a limited issue of
past hospital and medical
expenses. Ms. Watt seeks to adduce
through affidavit(s) evidence of Ms. Ziphora Mahlare, a Financial
Consultant of Profmed
Medical Scheme. The medical scheme paid
for the treatment at the hospital(s), for the two minor children as a
result of injuries
they sustained in the motor vehicle accident that
occurred on 14 October 2015.
5.
The defendant neither denies that Profmed
Medical Scheme paid for the past hospital and medical expenses nor
that these were reasonable
costs for the treatment provided.
6.
The defendant's issue is whether it is
permissible at law for the Fund to refund the Plaintiff for the past
hospital and medical
expenses which were paid by the medical aid, as
the Defendant views this as double compensation.
ISSUES FOR
DETERMINATION
7.
Whether to allow evidence to be adduced
through affidavits.
8.
Whether the Plaintiff is entitled to
compensation for past hospital and medical expenses.
9.
Whether or not this Court is best poised to
grant costs for these proceedings. Put otherwise, whether costs
should be reserved for
later determination.
CONSIDERATION OF
WHETHER TO ALLOW EVIDENCE TO BE ADDUCED BY AFFIDAVIT
10.
The point of departure is that the
Defendant is not opposed in evidence being produced by way of
affidavit in so far as the issue
of past hospital and medical
expenses is concerned.
11.
The Defendant does not challenge the
reasonableness of the amounts charged by the hospital nor does she
challenge the need for the
treatment.
12.
The witness would have to come down from
Johannesburg to confirm that the medical aid paid the undisputed
amounts to the mentioned
hospital(s).
13.
Clearly, producing evidence through
affidavits in circumstances where the deponent is not required to be
cross-examined is less
expensive and expedient than fastidiously
following the norm of having
viva voce
evidence.
14.
Plasket,
AJA in
Madibeng
Local Municipality v Public Investment Corporation Ltd
aptly stated
[1]
:
“
The
approach to rule 38(2) may be summarised as follows. A trial court
has a discretion to depart from the position that, in a trial,
oral
evidence is the norm. When that discretion is exercised, two
important factors will inevitably be the saving of costs
and the
saving of time, especially the time of the court in this era of
congested court rolls and stretched judicial resources.
More
importantly, the exercise of the discretion will be conditioned by
whether it is appropriate and suitable in the circumstances
to allow
a deviation from the norm. That requires a consideration of the
following factors: the nature of the proceedings; the
nature of the
evidence; whether the application for evidence to be adduced by way
of affidavit is by agreement; and ultimately,
whether, in all the
circumstances, it is fair to allow evidence on affidavit.”
15.
In
Uramin
t/a Areva Resources Southern Africa v Perie
Satchwell, J propounded
[2]
:
[24]
We rightly expect and prefer that viva voce evidence in both civil
and criminal proceedings be given in a
courtroom at the seat of the
court in the presence of the parties and their representatives and
the judicial officer and the public.
The reasoning is obvious.
The court buildings and personnel and the procedures therein are
dedicated to the process of litigation.
Anyone may attend. The
legitimacy of the process derives, in part, from this dedication.
[25]
Yet within these stone walls staffed by personnel
dressed as though they were clerics in the reign of Henry
the Eighth,
we have no difficulty in recognising the need for accommodating
witnesses to meet the interests of justice
. We utilise many
different ways of procuring evidence because both the Constitution
and the High Court Rules permit development
of appropriate
procedures. We do so because we recognise that court procedures
and the Rules which regulate such practices
are devised to administer
justice and not hamper it.
Evidence is received on
affidavit
; closed-circuit television regularly allows for
evidence to be given in one room and transmitted to a courtroom;
inspections in
loco take place and judges or nominated persons take
evidence on commission.
The test to be applied by the court
in exercising its discretion is whether or not 'it is convenient or
necessary for the purposes
of justice'
.
[my
underlining]
16.
In exercising my discretion, I will allow
Ziphora Mahlare's evidence to be adduced in the form of an affidavit
regarding the past
hospital and medical expenses incurred on behalf
of C[...]and E[...] N[...], which I accept and admit as exhibits “A”
and “B,” respectively.
IS THE PLAINTIFF
SUITED TO BE COMPENSATED FOR PAST MEDICAL, HOSPITAL AND RELATED
EXPENSES WHEN THE SAME WERE PAID BY THE MEDICAL
AID SCHEME?
17.
It is trite that a claimant cannot receive
more than (s)he has incurred actual loss. Beshe J, in
Mullins
v RAF (unreported)
(3650/2014) [2016]
ZAECPEHC 32 (4 August 2016) had this to say,
“…
In
my view, it will be appropriate to deduct the amount received by way
of a disability grant from the award for loss of earnings
and earning
capacity especially in view of the fact that it was received as a
result of the disability arising from collision in
question…”
18.
Ms Watt sought relief of defendant being
ordered to pay the past hospital and medical expenses to the
plaintiff, and from the bar
indicated that these will be reimbursed
to the medical scheme. Ms Futsane on the other hand argued that the
payment to the plaintiff
would be tantamount to double compensation.
19.
Scott
J in the case of
Zysset
and Other v Santam Limited
tells us that
[3]
:
“…
benefits
received by the plaintiff under ordinary contracts of insurance for
which he has paid the premiums and (b) moneys
and other
benefits received by a plaintiff from the benevolence of third
parties motivated by sympathy. It is said that the law
baulks at
allowing the wrongdoer to benefit from the plaintiff's own prudence
in insuring himself or from a third party's benevolence
or compassion
in coming to the assistance of the plaintiff. Nor, it would
seem, are these the only benefits which are to be
treated as res
inter alios actae. In
Mutual and Federal Insurance Co
Ltd v Swanepoel
1988 (2) SA 1
(A) it was held, for
example, that a military pension which was in the nature of
a solatium for the plaintiff's non-patrimonial
loss was not
to be deducted.
20.
Windell J quotes with approval the
following cases:
[13]
Similarly,
in
Mooideen
v The Road Accident Fund
,
the court confirmed that the medical aid’s payment of medical
expenses was an irrelevant collateral transaction, and the
RAF was
not entitled to raise the medical aid scheme indemnification as a
defence and therefore benefit from the payment. The court
held that:
‘
Plaintiff
thus, on behalf of the deceased's estate, in terms of the rules
which I have said out of Discovery and the common law
of insurance,
can recover from the defendant as if there had been no
indemnification at all. The recovery made by the deceased
estate is
a matter between the plaintiff and Discovery and has, therefore,
raised res inter alios acta.’
[14]
The
court
in Rayi
NO v Road Accident Fund
, was
confronted with the same question as in the present matter, namely
whether the RAF was obligated to reimburse the plaintiff
for previous
hospital and medical expenses, given that those costs had already
been paid by the plaintiff’s medical aid.
Zondi J, held as
follows:
‘
[12]
It is clear to me that a procedural remedy which is
available to the supplier of goods or services in terms of
section
175(5) of the [RAF] Act is not available to Bonitas. It
paid past medical expenses on behalf of the plaintiff.
It did not
supply goods or provide services on behalf of the plaintiff. Bonitas
can therefore not claim directly from the defendant
the expenses it
incurred on behalf of the plaintiff in terms of section 175(5) of the
Act.
[13]
Bonitas can recover from the defendant the payment
it made on behalf of the plaintiff and for which the
defendant is
primarily responsible by way of an action based on the principle of
subrogation. It may sue the defendant in its own
name or in the name
of the plaintiff. (
Rand Mutual Assurance Co Ltd v Road
Accident Fund
[2008] ZASCA 114
;
2008 (6) SA 511
(SCA) at para 24). Subrogation
embraces a set of rules providing for the reimbursement of an insurer
which has indemnified
its insured under a contract of indemnity
insurance (Lawsa (reissue) vol 12 para 373).
[14]
Ms Carter, who appeared for the defendant, submitted that the
plaintiff cannot claim for the past medical
expenses after payment of
such expenses by Bonitas. She argued that in the absence of a cession
of its rights of action by Bonitas
in favour of the plaintiff,
Bonitas is the only party that is entitled to claim for past medical
expenses. I disagree with Ms Carter’s
contention.
[15]
In my view, settlement by Bonitas of the
plaintiff’s past medical expenses does not relieve the
defendant
of its obligation to compensate the plaintiff for the past
medical expenses he incurred. Payment by Bonitas was made in terms of
the undertaking made by the plaintiff to Bonitas in terms of which
Bonitas agreed to settle the plaintiff’s past medical
expenses
on the understanding that upon a successful recovery from the
defendant, the plaintiff would reimburse Bonitas for all
the costs it
incurred on plaintiff’s behalf in connection with the claim
against the defendant.
[16]
The
obligation which the undertaking imposes on the plaintiff towards
Bonitas does not arise until such time that there is a successful
recovery of the past medical expenses by the plaintiff from the
defendant. The defendant primarily remains liable to the plaintiff
for the payment of the past medical expenses and the liability of
Bonitas to the plaintiff for the past medical expenses is secondary
to that of the defendant. The defendant should pay the past medical
expenses to the plaintiff who should upon receipt of payment
account
to Bonitas in terms of the
undertaking
.’
(Emphasis added)
21.
Zondi J in
Rayi
N.O. v RAF
at paragraph 28
enunciated the principle as follows:
“
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.”
22.
Then Cloete J in
van
Tonder v RAF (unreported)
(1736/2020;
9773/2021)
[2023 ZAWCHC 305
(1 December 2023) asserted:
“
The
only way to prevent their loss of expenses incurred for the medical
treatment of their client victims of motor vehicle accidents,
would
be for the medical schemes to institutes concurrent claims against
the RAF and in due course seek the consolidation of the
hearing of
the two matters. The costs of the proceedings will be astronomical
and unnecessarily incurred by the RAF which, in terms
of the Public
Finance Management Act, will constitute wasteful expenditure.”
23.
In
this division Rugananan J in the matter of
van
Heerden v RAF
followed the SCA decision in
Bane
and Others v D’Abrossi
2010
(2) SA 539
(SCA) where he cites the following passage with
approval
[4]
:
“
[P]ayments
which the medical aid was and is obliged to make to the respondent
constitute the discharge by the respondent of contractual
obligations
flowing from the contract concluded between it and the respondent. As
such they constitute res inter alios acta and
the appellants cannot
claim the benefit of them.”
24.
I find that there is no justification at
law why the Defendant should be exonerated to pay the Plaintiff the
past hospital and medical
expenses. Apart for submissions made
from the bar, by Ms. Watt, there is no evidence led in this matter
that there is an
obligation to reimburse the medical scheme in terms
of an undertaking that the Plaintiff and/or member of the medical
scheme has
signed. The medical scheme is not divested of relief
in the event that it is not reimbursed upon payment being received by
the Plaintiff.
25.
With the foregoing, I make the following
order:
A)
The Defendant is liable to pay the
plaintiff’s past hospital and medical expenses for C[...]N[...]
in the sum of R43 258.20
and R26 848.48 for E[...] N[...], which
payment shall be remitted into the Trust Account of Plaintiff’s
Attorneys, AC DE
SOUSA ATTORNEYS, whose details are as follows:
Account
Holder:
A C De Sousa Attorneys Trust Account
Bank:
F[…]
Branch:
M[…]
Branch
Code:
2[…]
Account
No.:
6[…]
B)
The Defendant is also liable for the costs
of suit, including cost of Counsel on Scale B and for the cost of
reservation and attendance
upon consultations with the following
experts:
a.
Mr. Jean du Rand
Industrial Psychologist
b.
Human & Morris -
Actuaries
c.
Karen Andrews -
Clinical Psychologist
B.
METU
ACTING
JUDGE OF THE HIGH COURT
APPEARANCES:
Counsel
for the Plaintiff
Adv. Watt
Instructed
by
A C De Sousa Attorneys
67 High Street
Makhanda
(Ref: D.
Jepp/Cornelia/NIE4 & NIE5)
Counsel
for the Defendant
Ms. Futshane
Instructed
by
Road Accident Fund
20 Drury Lane
East
London
(Claim No.:
505/12768830/1012/2)
(Link No.: 4627214 (C
N[...])
(Claim No.:
505/12768830/1012/1)
(Link No.: 4583244 (E
N[...]))
Date
Heard
27 May 2024
Date
Delivered
30 May 2024
[1]
2018
(6) SA 55
(SCA) @ para 26
[2]
(unreported
KZD A105/2004) (20 August 2018)
[3]
1996 (1) SA 273
(C) at paragraph 278 A – D.
[4]
(845/2021) [2022] ZAECQBHEC 37 (4 October 2022) at paragraph 11.