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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
REPORTABLE
Case no.: 24228/16
MARGARITHA ISABELLA GUNTHER Plaintiff
And
ROAD ACCIDENT FUND Defendant
Date of hearing: 27 March 2024
Defendant’s written note: 3 April 2024
Plaintiff’s replying note: 5 April 2024
Judgment date: 6 June 2024
JUDGMENT
______________________________________________________________________
PANGARKER AJ
The Plaintiff’s claim for past medical, hospital and related expenses
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1. On 23 August 2013 the plaintiff was involved in a motor vehicle collision on the
R321 between Grabouw and Villiersdorp, when the vehicle in which she was travelling
as a passenger collided with another vehicle and a truck. At the time, the plaintiff’s
husband was the driver of the vehicle, and as a consequence of the collision, he
succumbed to his injuries and passed away at the scene. In her amended Particulars of
Claim, the plaintiff pleads that the collision was caused by the sole negligence of the
driver of the truck.
2. The plaintiff pleads that as a result of the collision, she suffered damages
comprising of past medical and related expenses, future medical costs, future loss of
earnings and general damages totalling R2 201 188, 23. A day before the trial date, the
parties reached agreement on liability, future hospital, medical and related expenses,
loss of income and general damages. I was informed in an updated Joint Practice Note
that the parties had not settled the plaintiff’s claim for past medical, hospital and related
expenses and costs, thus the trial was to proceed on these limited issue only.
3. At the hearing on 27 March, counsel for the plaintiff handed up two proposed
Draft Orders for consideration. Following on from the above introduction, it follows thus
that the only issues in dispute at the time of the trial were the plaintiff’s amended claim
for past hospital, medical and related expenses, and costs. However, the defendant’s
approach subsequent to the hearing of evidence, dictated otherwise. The plaintiff was
the only witness to testify in the trial in respect of her claim for past hospital and medical
expenses.
The plaintiff’s case
4. The plaintiff testified that she was 67 years old and a retired school teacher. As a
result of the collision in August 2013, she suffered the following injuries: a fracture of the
right wrist and right thumb, a laceration to her left leg, fracture of the left knee joint, rib
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fractures, a fracture of the C6 spinal vertebrae and a compression of the lumbar
vertebrae.
5. A schedule setting out the expenses and vouchers related to the plaintiff’s
medical and hospital treatment received in relation to her injuries was handed into
evidence during the trial and admitted as Exhibit A. The plaintiff was taken through the
schedule and invoices, explaining what each one entailed. She was transported from
the accident scene to the Vergelegen Medi Clinic where she underwent surgery 1 and
was later discharged on 17 September 2013. The plaintiff confirmed the injuries which
she sustained, the treatment received and medical expenses related to these
treatments, (including prescription medication) some of which are set out briefly below.
6. On 4 December 2014, the plate and screws implanted in the plaintiff’s right
thumb and wrist were removed at Panorama Mediclinic 2. A Pathcare account for blood
tests during her hospital stay as an in-patient was also confirmed.
7. The plaintiff was taken through the following further invoices for treatment from
medical service providers and confirmed the correctness thereof:
7.1 Dr F Wahl, orthopaedic surgeon, Vergelegen Mediclinic3;
7.2 Dr R Donald, anaesthesiologist – treatment to right index finger4;
7.3 Dr DD De Villiers, anaesthesiologist – right hand and tibia fracture5;
7.4 Dr KL Keet, anaesthesiologist – emergency admission6;
1 Exhibit A, Vergelegen Mediclinic tax invoice
2 Exhibit A, p10-11
3 Exhibit A, p23-25 – R5485,80
4 Exhibit A, p26 – R3320
5 Exhibit A, p27-28 – R8282,20
6 Exhibit A, p29 – R12 244,20
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7.5 L van Schalkwyk, physiotherapist – treatment for multiple rehabilitation
from November 2013 to February 20147;
7.6 Dr RB Schoombee, house doctor – initial consultation as the plaintiff was
experiencing depression shortly after the collision and received anti -
depressants8;
7.7 Dr DM Turner, anaesthesiologist – treatment on 4 October 2013 related to
the plaintiff’s index finger9;
7.8 Dr MC Wells, orthopaedic surgeon, Panorama Medi Clinic – contracture of
joint, removal of internal fixative, tendon freeing (right hand)10;
7.9 Dr G Van Zyl, Cape Town Knee Unit11;
7.10 Morton and Partners Radiologists – left knee X ray12;
7.11 Various pharmacy invoices – prescription medication for muscle relaxants
and anti-depressants13;
7.12 Blood transfusion services in hospital14.
8. The plaintiff stated that she was a member of GEMS medical aid at the time of
the collision and her subsequent treatment. A family member submitted the claims on
her behalf as she was hospitalised and unable to do so herself but she paid the surplus
in respect of treatments which GEMS had not covered. The plaintiff testified that the
7 Exhibit A, p30-32 – R5124, 35
8 Exhibit A, p33 – R264,50
9 Exhibit A, P34 – R3890
10 Exhibit A, p37 - R410, R2996
11 Exhibit A, p38 – R464,60
12 Exhibit A, p39 – R470, 12
13 Exhibit A, p40-60 (Kruger Pharmacy, Caledon Pharmacy, Clicks, Goldstein Pharmacy, Medirite
14 Exhibit A, p61
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invoices and statements contained in Exhibit A support her claim for past medical and
hospital expenses for treatment and medical services received as a result of the injuries
she sustained in the collision, with the exception that pharmacy invoices reflecting
allergy medication and antihistamines were excluded from the computation of her claim.
9. The plaintiff explained that the depression was brought on by the multiple
operations she underwent, the loss of her husband and the physical adjustments as a
result of the injuries which she sustained. The depression diagnosis was confirmed in
the report by psychologist, Dr R Bredenkamp15.
10. Except to determine that the plaintiff personally paid the surplus of past medical
expenses which were not paid by GEMS, cross examination by the State Attorney did
not amount to anything of substance. The plaintiff was asked if she knew what the
surplus amount was to which she responded that she did not know how much was paid.
No questions were posed in respect of the treatment received, injures sustained, the
schedule of amounts and the correctness of the invoices and statements from service
providers.
The defendant’s request
11. The plaintiff thereafter closed her case. The defendant called no witnesses and
closed its case. The State Attorney sought an opportunity to file a written note on the
plaintiff’s claim, and alluded to a Directive issued by the defendant in relation to
compensation for past medical expenses where those expenses were previously paid
by a plaintiff’s medical aid scheme. The plaintiff’s counsel had no objection to the
defendant’s request and a timetable was set for April for receipt of the written
submissions. Subsequent to receipt of the defendant’s written submissions, the
plaintiff’s counsel provided a response thereto on 5 April 2024. Before addressing the
submissions, I turn to the pleadings as it relates to the plaintiff’s claim.
15 Pleadings, p121-133
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The pleadings
12. The Particulars of Claim were amended a few times since the action was
instituted and the amendments relate mainly to the additional reports about the plaintiff’s
treatment as a result of the collision. Paragraph 10.1 of the Amended Particulars of
Claim dated July 2023 states that the plaintiff suffered damages including past medical
and related expenses as set out in the schedule which totalled R272 388, 23. The
schedule is replicated in Exhibit A.
13. Given that the amendment occurred in July 2023 and the hearing took place in
March 2024, there is nothing unusual about any amendment. The point is that even
though annexure D sets out a total of R285 982, 53, in the event that it is found that the
plaintiff has proved her claim, she would only be entitled to the amount proved, whether
equal to or less than the amount claimed in her Amended Particulars of Claim, which is
R272 388, 23. The Plea to the plaintiff’s claim for past medical, hospital and related
expenses is to simply acknowledge annexure D, but to plead no knowledge of the
allegations, assertions and conclusions therein and as a consequence, the defendant
puts the plaintiff to the proof thereof.
The doctrine of subrogation and the defendant’s exclusion of liability argument
14. The defendant relies on the Medical Schemes Act 13 of 1998 for its submission
that a medical aid scheme is compelled to pay a member’s expenses and cannot
contract out of such obligation. It refers to section 17 of the Road Accident Fund Act 56
of 1996 (RAF Act) as amended and submits that the section envisages that the third
party must have suffered loss or damage. Hence, so the argument goes, where a
medical aid of a member paid his/her past medical expenses in terms of its statutory
obligation to do so on behalf of the member, the medical aid cannot contract out of such
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statutory obligation by entering into an agreement with its member to reclaim the
amount paid on the latter’s behalf.
15. The defendant submits that what is before the Court is in fact not the plaintiff’s
claim for past medical expenses but rather a claim brought on behalf of GEMS. The
defendant’s understanding is that where the plaintiff’s medical aid paid the service
providers on her behalf, she suffered no loss and cannot be bound contractually to
claim the amount from the defendant.
16. The defendant argues further that the claim for past medical expenses is
excluded by Regulations 7 and 8 of the Medical Schemes Act and section 19 (d)(i) of
the RAF Act. The further argument is that the defendant is not opposed to the
reimbursement of past medical expenses which the plaintiff paid directly and which
does not fall within the definition of emergency medical care or prescribed minimum
benefits in terms of the legislation.
17. Lastly, the defendant’s view is that the plaintiff’s claim is based on the doctrine of
subrogation and that she cannot be compelled to reclaim from the defendant as such
right cannot simply be created between the insurer and member under the subrogation
principle. Insofar as the recent judgment of Discovery Health (Pty) Ltd v Road
Accident Fund and Another 16 is concerned, the defendant acknowledges its
unsuccessful attempts to appeal the decision and admits that there are no judgments in
its favour on this issue, yet I am asked to accept the defendant’s submissions and
dismiss the plaintiff’s amended claim for past medical, hospital and related expenses.
Discussion and findings
16 2022 ZAGPPHC 765
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18. In considering the submissions made by the defendant in the discussion which
follows, I also consider the plaintiff’s addendum submissions. At the outset I have to
state that the defendant’s stance in this matter was only made known when the State
Attorney’s written submission was received in April. There was most certainly no
indication that the defendant would rely on the doctrine of subrogation and the exclusion
of its liability in terms of section 19 of the RAF Act and the Regulations of the Medical
Schemes Act.
19. Turning to the submissions, the doctrine of subrogation, which is part of our
common law, provides that:
“…an insurer under a contract of indemnity insurance who has satisfied the claim of the insured is
entitled to be placed in the insured’s position in respect of all rights and remedies against other
parties which are vested in the insured in relation to the subject matter of the insurance.” 17 Thus,
in terms of the doctrine, the insurer steps into the shoes of the insured, meaning that the insurer
subrogates the insured and is allowed to claim the loss from the wrongdoer 18.
(my emphasis)
20. It must be noted that the insured may claim from the wrongdoer for the insurer’s
benefit because notwithstanding the indemnification received from the insurer, the
wrongdoer is not released 19. It follows that the reference to “wrongdoer” is a reference
to the defendant in the sense that it is statutorily obligated in terms of section 17 (1) of
the RAF Act to compensate the third party (plaintiff) for loss or damage suffered as a
result of bodily injury to herself arising from the negligent driving of a vehicle by another
person.
21. In my view, the first question to ask is whether the subrogation issue should have
been pleaded or whether it was in order for the defendant to raise it in written
17 Rand Mutual Assurance Company Ltd v Road Accident Fund 2008 (6) SA 511 (SCA) par 17, referring to Ackerman
v Loubser 1918 OPD 31
18 Rand Mutual supra, par 17
19 Amler’s Precedents of Pleadings, Seventh Edition, LTC Harms, p234; Rand Mutual supra
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submissions after the parties’ respective cases were closed? To answer the question, I
turn to Banjo v Smith20, which provides some clarity on the matter, as follows:
“[12] The involvement of the insurer in a lawsuit is irrelevant and therefore it is not necessary
to plead such involvement. It has already been established that in subrogation claims the insurer
takes the place of the insurer 21. The historical practice in our courts is to allow the insurer to
institute action in the name of the insured [Rand Mutual Assurance supra]. Logically, the parties
to a suit have the same rights and duties as they would have had had the matter not been a
subrogated claim. I agree with the plaintiff’s submission that from a practical perspective the
insurer’s involvement in the suit is irrelevant. For this reason it is clearly not necessary for the
plaintiff to plead the insurer’s involvement in the suit.
[13] The plaintiff is only required to plead those facts which sustain a cause of action [see
Bankorp Ltd v Anderson -Morshead 1997 (1) SA 251 (W) at 256I – J]. In the Nkosi case, the
plaintiff was both the owner of the vehicle and the insured party. The case is factually
distinguishable from the present matter and this may be the reason for the defendant’s
submission that nothing turns on the Nkosi case. However, the rule propounded in that case is
that subrogation must be proved and specifically pleaded. Accordingly, the case is relevant and
needs to be analysed. The fact that a given matter is a subrogated claim is not a fact that
sustains a cause of action. It is merely a collateral fact and it is not necessary to plead and prove
such a fact.
[14] There is authority for the proposition that subrogation does not need to be proved . In
Ntlhabyane v Black Panther Trucking (Pty) Ltd and Another (A3083/08) [2009] ZAGPJHC 46 (1
September 2009), the plaintiff was the owner of the vehicle and also the insured party. The
magistrate granted absolution from the instance on the misguided basis that the plaintiff had
20 2011 (2) SA 518 (KZP)
21 I am of the respectful view that this might be an error in the judgment and that the sentence may have been
intended to read “…the insurer take the place of the insured”. The same possible error occurs in the PDF and Word
version of the judgment on Saflii
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failed to prove subrogation in that she had failed to produce a copy of the insurance policy. On
appeal, the court confirmed that subrogation did not affect the plaintiff’s locus standi to institute
action. The court held that there ‘was neither a duty on the plaintiff to prove subrogation, nor to
produce the policy of insurance.’ I agree with that decision and in that respect the Nkosi
judgment is clearly wrong and is not binding on future courts.”
(my emphasis)
22. The above paragraphs in Banjo v Smith make it clear that where a plaintiff
institutes a claim, he/she need not plead that it is a subrogated claim as the insurer’s
involvement is irrelevant or collateral to the plaintiff’s action . I have already set out the
averments in the Plea to the current claim and frankly, there is no mention of what is
contained in the written submissions.
23. Having regard to the dicta in Banjo v Smith , in this matter we do not have the
plaintiff’s pleading in issue, but a defence which rests on a subrogated claim to escape
liability and a reliance on certain sections of the RAF Act and Medical Schemes Act to
exclude the defendant’s liability for past medical expenses. I hold the view that in such
an instance, the defendant should have pleaded such defence(s) and not simply plead
an acknowledgement of the schedule of expenses and putting the plaintiff to the proof
of her claim. I am further fortified in my view that these defences should have been
pleaded as Rule 18(4) makes it abundantly clear that the pleading should contain a
clear and concise statement of material facts upon which the pleader relies for his/its
defence, and while I am not dealing with an exception, the material facts upon which the
late defences are based, are absent from the Plea.
24. By raising these apparent defences for the first time in written submissions after
the parties had closed their respective cases, the defendant acted in a manner contrary
to the Rules and frankly ambushed the plaintiff. I must emphasise that neither the
schedule of expenses nor supporting invoices and vouchers or the plaintiff’s testimony
were ever disputed, which lead to the eventual conclusion that the past medical
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expenses remained undisputed. The conduct of the defendant in firstly failing to plead
these specific defences, and secondly, presenting them in written submissions after the
conclusion of the trial, is to be deprecated. There is simply no reason why the defendant
did not amend its Plea in terms of Rule 28. Nonetheless, I consider the submissions as
presented in the discussion which follows.
25. The important point to note is that the plaintiff’s claim for past medical and
hospital expenses is not based on subrogation but is based on the provisions of section
17 of the RAF Act. The undisputed evidence is that GEMS honoured its obligations to
the plaintiff and indemnified her as an insured under a contract of indemnity insurance
by paying her past hospital and medical expenses which she incurred as a result of the
injuries in the collision.
26. Turning then to the recent Discovery Health judgment, it is notable that a
similar argument was advanced by the RAF which was the respondent in that
application. On the subrogation issue and RAF’s contention that it is absolved from
paying compensation where a medical aid scheme (the insurer) has compensated the
insured (the plaintiff/claimant), Mbongwe J in Discovery Health held that:
“[21] In terms of our law, benefits received by a claimant from the benevolence of a third party
or a private insurance policy are not considered for purposes of determining the quantum of a
claimant’s damages against the first respondent. The reason for this is merely because a benefit
that accrues or is received from a private insurance policy origin from a contract between the
insured and the insurance company for the explicit benefit of the claimant and its receipt does not
exonerate the first respondent from the liability to discharge its obligation in terms of the RAF Act .
In Zysset and Others v Santam Ltd 1996 (1) SA 273 (C) at 277H – 279C the set out the principle
in the following words:
“The modern South African delictual action for damages arising from bodily injury
negligently caused is compensatory and not penal. As far as the plaintiff’s patrimonial
loss is concerned, the liability of the defendant is no more than to make good the
difference between the value of the plaintiff’s estate after the commission of the delict and
the value it would have had if the delict had not been committed…Similarly, and
notwithstanding the problem of placing a monetary value on a non -patrimonial loss, th e
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object in awarding general damages for pain and suffering and loss of amenities of life is
to compensate the plaintiff for his loss. It is not uncommon, however, for a plaintiff by
reason of his injuries to receive from a third party some monetary or compensatory
benefit to which he would not otherwise have been entitled. Logically and because of the
compensatory nature of the action, any advantage or benefit by which the plaintiff’s loss
is reduced should result in a corresponding reduction in the damages awarded to him.
Failure to deduct such a benefit would result in the plaintiff recovering double
compensation which, of course, is inconsistent with the fundamental nature of the action.
Notwithstanding the aforegoing, it is well established in our law that certain benefits which
a plaintiff may receive are to be left out of the account as being completely collateral. The
classic examples are (a) benefits received by the plaintiff under ordinary contract of
insurance for which he has paid the premiums and (b) money 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.”
(my emphasis)
[22] In Ntlhabyane v Black Panther Trucking (Pty) Limited and Another 2010 JDR 1011 (GSJ)
the court expressed the principle in the following terms:
“a plaintiff’s insurance, her indemnification in terms of it, and the consequent subrogation
of her insurer are all matters of no concern to the third party defendant.’’ “
27. From paragraph 21 of Discovery Health, it is evident that the benefit accruing to
the insured from the contract which exists between her and the insurer does not absolve
the defendant from its liability to th at claimant in terms of the RAF Act. Furthermore, it
cannot be stated any clearer than it was in Zysset and Others v Santam Ltd 22 that a
benefit or advantage received by the claimant should resultantly have a corresponding
diminution in the damages awarded to t he claimant. The idea is that a plaintiff should
not be placed in a position where she receives double compensation in the form of
damages, and the determination of when a plaintiff would receive double compensation
22 1996 (1) SA 273 (C) 277H-279C
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is concerned with aspects such as public policy, justice and reasonableness 23. The
considerations are , therefore, that whilst a claimant should not receive double
compensation, at the same time, the wrongdoer is not to be absolved of its liability to
the claimant/plaintiff for compensation due to loss caused by injury to her as a result of
the collision.
28. Also held in Zysset, benefits which a claimant receives under an insurance
policy (where she pays a premium) are to be left out of the reckoning/account as it is
collateral in that it is based on the doctrine res inter alios acta , a common law doctrine
which states that a thing done between certain parties ought not to prejudice a third
party24. Put simply, whether the claim is subrogated is a collateral issue, and has
nothing to do with the issue at hand, being the plaintiff’s claim against the defendant
which is statutorily obligated to compensate victims who have suffered damage or loss
arising from injury caused by the negligence or wrongful act of the driver or owner of a
motor vehicle.
29. On the statutory obligation and liability to compensate a plaintiff, the SCA in
Road Accident Fund v Abrahams25 clarified the position as follows:
“Section 21(1) abolishes the right of an injured claimant to sue the wrongdoer at
common law. Section 17(1), in turn, substitutes the appellant for the
wrongdoer. It does not establish the substantive basis for liability. The liability is
founded in common law (delictual liability). Differently put, the claim against the
appellant is simply a common – law claim for damages arising from the driving
of a motor vehicle, resulting in injury. Needless to say, the liability only arises if
the injury is due to the negligence or other wrongful act of the driver or owner of
the motor vehicle.’’
23 Standard General Insurance Co Ltd v Dugmore NO 1997 (1) SA 33 (SCA) at 42B
24 Dictionary of Legal Words and Phrases, Second Edition, RD Claassen, Vol 4 R -63
25 2018 (5) SA 169 (SCA) par 13; see also Engelbrecht v Road Accident Fund & Another [2007] 6 SA 96 (CC)
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30. Furthermore, th e submission that the medical aid has contracted out of its
obligation to pay medical expenses is nonsensical, to say the least. It is clear that the
defendant wishes to penalize the plaintiff for using her medical aid at the time of the
collision to cover her medical and hospital expenses, yet the argument ignores the
authority cited above which states that her insurance is no concern of the defendant as
it is a collateral issue. Secondly, to emphasise, the benefits which the plaintiff receives
under the insurance contract (in this instance, the medical aid scheme contract), are left
out of the reckoning in the determination of her claim for damages against the
defendant.
31. Ultimately, the agreement between the plaintiff and GEMS is binding and is
sanctioned in terms of section 32 of the Medical Schemes Act. The issue of subrogation
is not relevant and whether the medical aid proceeds against the plaintiff at some later
stage, is not the defendant’s concern anyway. The argument related to subrogation
clearly ignores the authorities and legal principles and is simply bad in law. The plaintiff
has proved that the medical expenses which she incurred were as a result of and
incurred due to the treatment she received for her accident related injuries and the
determination of her claim falls full square within section 17 of the RAF Act, as correctly
argued by the plaintiff’s counsel.
32. On the exclusion of liability argument and reference to section 19(d)(i) of the RAF
Act and Regulations 7 and 8 of the Medical Schemes Act, the defendant also seeks to
escape liability for the plaintiff’s past medical expenses. The defendant wishes to
convince the Court that because the plaintiff’s medical scheme is obliged to pay for
emergency medical care provided by a supplier as it was a prescribed minimum benefit
in terms of the Medical Schemes Act, the medical aid scheme has no reimbursement
right in terms of the latter Act, and the defendant consequently is not liable as section
19(d)(i) of the RAF Act excludes its liability. It is frankly difficult to follow the defendant’s
reasoning on this aspect.
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33. Nonetheless, I refer to Road Accident Fund v Abdool Carrim and Others 26,
which was also referred to and considered recently by Cloete J in Van Tonder v Road
Accident Fund27. Notwithstanding the findings in these two judgments, the defendant
persists with its submission that section 19(d)(i) of the RAF Act applie s in the
circumstances of the plaintiff’s claim. While this matter does not deal with a supplier’s
claim per se, the reasoning by the SCA in Abdool Carrim at paragraphs 11 and 12 of
the judgment, is equally applicable here. In summary, the SCA held that the supplier’s
right to claim from the RAF was conditional upon the plaintiff’s valid and enforceable
claim and it (the supplier’s claim) was not unenforceable against the RAF because of an
agreement concluded with someone other than an attorney as referred to in section 19
of the RAF Act.
34. Section 19(d)(i) of the RAF Act would render the plaintiff’s claim unenforceable
against the defendant if the plaintiff entered into an agreement with someone other than
an attorney or with a person or representative as defined in section 19(c)(ii). However,
as per Abdool Carrim, section 19(d)(i) was enacted to protect claimants from entering
into “champertous agreements” 28 but, as seen above, the SCA found that suppliers’
agreements did not fall under section 19(d)(i).
35. In Van Tonder , Cloete J found that the reasoning in Abdool Carrim applied
equally to the position related to the agreement between the claimant or plaintiff and
his/her medical aid, and consequently rejected the defendant’s argument related to the
exclusion of RAF’s liability in terms of section 19(d)(i). I fully agree with this reasoning,
and in my view as well , section 19(d) of the RAF Act finds no application to the
agreement between the plaintiff and her medical aid scheme. To hold otherwise would
also be contrary to the legal principle referred to above in Zysset and Discovery
Health that the benefit which the plaintiff receives from an agreement with her
26 [2008] ZASCA 18 par 3, see also par 11-13
27 [2023] ZAWCHC 305 para 10-12
28 Abdool Carrim supra, par13
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insurance company does not absolve or exonerate the defendant from discharging its
obligation to her in terms of the RAF Act29.
36. As its last line of defence, the defendant reasons that due to Regulations 7 and 8
of the Medical Schemes Act, the plaintiff is not entitled to claim back the amount for
emergency medical care, which is a prescribed minimum benefit, and in terms of
Regulation 8 (1) “…any benefit option that is offered by a medical scheme must pay in
full, without co -payment or the use of deductibles, the diagnosis, treatment and care
costs of the prescribed minimum benefit conditions” . It argues that the Medical
Schemes Act does not provide for the plaintiff to claim back these amounts on behalf of
the medical aid.
37. Unless I am mistaken, this argument is based on the subrogation refrain upon
which the defendant seems to hang its hat to escape its legislative obligation to
compensate the plaintiff for her loss occasioned by bodily injury sustained in the
collision. In my view, the reliance on Regulations 7 and particularly Regulation 8, is ill -
fated. I say this because it cannot be that these Regulations supersede the legal
principle which I have referred to above that the benefit which accrues and is received
from the private insurance company (medical aid scheme), for the plaintiff’s explicit
benefit, does not exonerate the defendant from the liability to discharge its obligation to
the plaintiff in terms of the RAF Act30.
38. In addition, the defendant has simply ignored existing authority, including Rayi
NO v Road Accident Fund 31, another judgment from this Division, wherein the Court
stated that:
“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
29 See section 17
30 See Discovery Health, par 21
31 [2010] ZAWCHC 30
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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.”
(my emphasis)
39. The argument and defence that the plaintiff has suffered no loss because she
received an indemnification from GEMS in respect of her past medical and hospital
expenses is simply bad in law. As is common knowledge , the benefit which the plaintiff
received from her medical aid scheme in terms of their contract was at her own expense
in that she was required to pay premiums . The argument that the claim is based on
subrogation and that it was settled, not only ignores the law as stated in Rayi but is ill-
conceived and without merit.
40. Furthermore, the defendant’s liability is neither limited nor excluded as sections
18 and 19 of the RAF Act do not apply in the se circumstances. Lastly, the reference to
section 29(1)(o) and (p) of the Medical Schemes Act is simply vague as the section
provides for or refers to the matters for which the rules of the medical aid scheme shall
apply, and the relevance of the section to the apparent defences raised, remains
unclear.
41. In conclusion, the eleventh hour defences, which were not pleaded, are without
merit and dismissed. I fully agree with the findings in the Discovery Health matter,
which the defendant has seen fit to ignore even though in paragraphs 25 to 27 of its
written submissions, it acknowledges that there are no judgments in its favour indicating
that payment by it of a plaintiff’s past medical expenses “should not take place”32. In the
same breath , the defendant requests that I take cognizance of its arguments which
were advanced in this matter, and which were much the same in the Discovery Health
32 Defendant’s submissions on
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and Van Tonder matters. I might add that similar arguments were raised in the
unreported Malgas v Road Accident Fund33, which were also dismissed.
42. Having regard to the above, I am satisfied that the plaintiff has neither unduly
benefitted from receipt of the benefit from GEMS in respect of past medical expenses
incurred as a result of being injured in the collision, nor will she receive double
compensation. Secondly, the benefit she received from her medical aid as described
above is excluded from the reckoning of the calculation of the amount of compensation
due by the defendant to her in terms of the RAF Act. I say this because as indicated in
Rayi, the plaintiff’s obligation to her medical aid only arises once there is a successful
recovery of her past medical expenses from the defendant.
43. In conclusion, I find that the plaintiff has proved that she is entitled to be
compensated for the past medical expenses incurred and related medical services
employed as a result of her injuries sustained in the collision. As to costs, the only issue
related to the suggested order of costs in the cause as indicated by the defendant in its
Draft Order B. I raised concerns with the State Attorney on this issue in view of the fact
that a new trial date was obtained and only a day before the trial date, the defendant
made an offer in respect of loss of income and the other heads of damage (except for
the disputed past medical expenses).
44. There really is no motivation nor basis for a costs in the cause order. The plaintiff
was prepared for trial on both days and the submission that the defendant waited until
the last minute to settle is not without merit. The email correspondence filed of record
indicate that attempts were made to get hold of the State Attorney to confirm the new
trial date of 27 March 2024, all to no avail.
45. Ultimately, the past hospital, medical and related expenses should also have
settled but the defendant persisted with an ill -conceived reliance on the doctrine of
subrogation and the exclusion of the defendant’s liability, in the face of very clear
33 Case number 126/2020, Eastern Cape Local Division, Gqeberha, delivered by Van Zyl DJP on 1 December 2022
19
authority which not only indicates that the doctrine is not a defence to such claim but
also that these very defences were rejected by the various Courts I refer to. The failure
to plead these defences and consider the Discovery Health and Van Tonder findings
knowing full well that there are currently no judgments favouring the defendant’s views,
are viewed with disapproval.
46. The plaintiff’s counsel was correct to submit that the defences or issues raised at
such a late stage were all meritless. A punitive costs order was not requested but had it
been, I would have given serious consideration to granting such order in the
circumstances where the defendant failed to plead specific defences, alternatively ,
failed to amend its Plea; raised defences (which should have been pleaded) in heads of
argument; advanced submissions which were not supported by law in this Division (and
others), and which were plainly ill -conceived and unmeritorious, all to escape its
statutory obligation to compensate a plaintiff such as in this matter. The order which
follows includes the agreed terms related to general damages and loss of income as
referred to earlier in the judgment.
Order
In view of the above findings and taking into account the agreement between the
parties, I grant the following orders:
1. The defendant is liable to pay 100% of the plaintiff’s damages arising from her
injuries sustained in a motor vehicle accident which occurred on 23 August 2013,
as set out below:
1.1 R750 000 in respect of general damages;
1.2 R148 199 in respect of loss of income;
1.3 R272 388, 23 in respect of past hospital, medical and related
expenses.
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2. The defendant shall provide a 100% undertaking in terms of section 17(4) of the
Road Accident Fund Act 56 of 1996 as amended, to compensate the plaintiff the
costs related to the plaintiff’s future accommodation in a hospital, nursing home
or treatment of or rendering of a service or supplying of goods to the plaintiff after
the costs have been incurred and on proof thereof in respect of the injuries she
sustained in the accident.
3. The defendant shall pay the plaintiff’s taxed or agreed costs, including the costs
of 7 August 2023 and 22 February 2024 when the matter was previously set
down for trial, on the High Court scale, as between party and party, including for
the sake of clarity, but not limited to:
3.1 The costs attended upon obtaining payment of the capital amounts
referred to above;
3.2 The qualifying expenses of the following experts:
3.2.1 Dr T Le Roux (orthopaedic surgeon);
3.2.2 Ms H van Staden (occupational therapist);
3.2.3 Ms C de Villiers (clinical psychologist);
3.2.4 Dr R Bredenkamp (counselling psychologist);
3.2.5 Ms L Hofmeyr (industrial psychologist);
3.2.6 Professor T Zabow (psychiatrist);
3.2.7 Mr PW Ennis (actuary);
3.3 Costs of plaintiff’s counsel on scale C.
4. The defendant shall pay the capital amount s referred to in paragraph 1 above
directly into the plaintiff’s attorneys’ trust account within 180 calendar days from
the date of this order, however, the defendant will be liable for interest on the
capital amount at the applicable interest rate as from 14 court days from date of
this order to the date of final payment. The plaintiff shall not proceed with a
warrant of execution prior to the expiry of the aforesaid 180-day period.
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5. Payment of the taxed or agreed costs set out in paragraph 3 above shall be
effected directly into the plaintiff's attorneys’ trust account subject to the following
conditions:
5.1 In the event that costs are not agreed, the plaintiff agrees to serve
the notice of taxation on the defendant;
5.2 The defendant shall make payment of the costs as taxed or agreed
within 180 calendar days from the date of taxation or agreement of the
costs;
5.3 The plaintiff shall not proceed with a warrant of execution prior to the
expiry of the aforesaid 180-day period.
6. The plaintiff’s attorneys’ trust banking account details are as follows:
Account Holder: Heyns & Vennote Inc.
Bank: ABSA
Account Number: 0[…]
Branch Code: 6[…]
REF: C[…]
7. It is recorded that the plaintiff and attorney of record will comply with section 4(1)
and (2) of the Contingency Fees Act 66 of 1997 and will file the required affidavit
with the Registrar of the Court.
_____________________
M PANGARKER
ACTING JUDGE OF THE HIGH
COURT
For Plaintiff: Adv A du Toit
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Instructed by: Heyns & Vennote Inc.
Bellville
Ms CS Van Heerden
For Defendant: State Attorney
Cape Town
Ms C Thomas