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2024
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[2024] ZAFSHC 224
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Bezuidenhout v Road Accident Fund (1284/2012) [2024] ZAFSHC 224 (1 August 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Not
reportable
Case
no:1284/2012
In
the matter between
MARYKA
BEZUIDENHOUT
PLAINTIFF
And
ROAD
ACCIDENT FUND
DEFENDANT
Coram:
Mgudlwa AJ
Heard:
27 MARCH 2024
Delivered:
This judgment was handed down electronically by
circulation to the parties’ representatives by email and
released to SAFLII.
The date and time for hand-down is deemed to be
at 15h00 on 01 August 2024.
Summary:
Claim for damages arising from a motor collision,
in respect of the past medical expenses against Road Accident Fund –
The
issue is whether the Road Accident is liable notwithstanding the
fact that the past medical expenses had been settled by the Medical
Aid – application of
res inter
alios acta
principle.
ORDER
1.
The defendant shall pay the Plaintiff a sum
of R86 092.75 for the past hospital and medical expenses,
together with the interest
thereon at the prescribed legal rate of
interest calculated from 14 days after date of this order to date of
final payment; and
2.
The Defendant shall pay the Plaintiff’s
costs on the scale as between attorney and client and including the
costs of counsel
on scale B of rule 67A of the Uniform Rules.
JUDGMENT
Mgudlwa
AJ:
INTRODUCTION
[1]
On 27 March 2024, I granted an order in the following terms:
‘
1.
The Defendant is 100% liable for the Plaintiff’s proven or
agreed damages.
2.
The Defendant shall pay to the Plaintiff’s attorney of record
by means
of electronic transfer of funds, a capital amount of
R1 737 654.75(One Million Seven Hundred and
Thirty-Seven
Thousand Six Hundred and Fifty Rand and Seventy-Five Cent) which
amount is in respect of past and future loss of earnings/
earning
capacity.
3.
Payment will be made within 30 days to the trust account of the
Plaintiff’s
attorney of record within 180 (One Hundred and
Eighty) days from the day of this order.
4.
Interest a tempore-morae shall be calculated in accordance with the
Prescribed Rate of Interest Act 55 of 1975
, read with section 17
(3)(a) of the Road Accident Fund Act 56 of 1996 (the RAF Act), 180
(One Hundred and Eighty) days from the
date of this order.
5.
The Defendant is to pay the Plaintiff’s agreed or taxed
(subject to the
discretion of the Taxing Master) High Court costs as
between party and party up and until 27 March 2024, such costs to
include
costs of counsel and the reasonable qualifying fees of the
following experts:
5.1
Dr LF Oelofse (Orthopaedic Surgeon)
5.2
C van Niekerk (Industrial Psychologist)
5.3
G J Mellet (Actuary from Argen Acturial Solutions)
5.4 Narishca
Doorasamy (occupational Therapist) and cost of the joint minute
between her and Adeliade Phashe
6.
The party and party costs, as agreed or taxed, shall be paid by the
Defendant directly into the
trust account of Rosendorff, Reitz Barry
Attorneys for the benefit of the Plaintiff and payment shall be made
within 180 (One Hundred
and Eighty) days from the date of the
allocator.’
[2]
What remains an issue for determination is the Plaintiff’s
claim for damages in respect of past
and hospital expenses in the sum
of R86092. 12 (Eighty-Six Thousand and Ninety-Two Rands and Twelve
Cents). At the heart of the
issue, the question is whether the Road
Accident Fund (the Fund) is liable even though the expenses were
settled by the medica
aid scheme.
The
Plaintiff’s claim
[3]
On 7 April 2007, the Plaintiff was a passenger in a motor vehicle
that collided with an insured
driver as contemplated in s 17(1) of
the RAF Act. It is common cause that the Plaintiff sustained serious
bodily injuries as a
result of the collision. These injuries are set
out in the particulars of claim as well as in the expert reports
filed for the
purpose of this action. It is not necessary to detail
the injuries as parties settled the question of liability. It was
agreed,
first, that the Defendant was liable for 100% of the
Plaintiff’s proven damages and, second, that the plaintiff’s
injuries
were serious as contemplated in s 17(1) read with s 17(1A)
of the RAF Act in respect of claims for general damages
(‘non-pecuniary’
damages).
Arguments
Plaintiff
[4]
With regard to this claim, Council for the
Plaintiff, relied on a principle of
res
inter alios acta
(a thing done, or
transaction entered into, between certain parties cannot benefit or
injure those who are not parties to the act
or transaction) which is
consistently applied by our courts in regard to hospital and medical
expenses paid by insurance companies.
He based his arguments on the
caselaw which consistently stated that the 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 defendant.
Defendant
[5]
Counsel for the Defendant, in pursuance of her arguments, handed in a
letter dated 2 March 2023,
where the Fund rejected the claim for past
medical expenses of the plaintiff on the basis that the said expenses
were paid by Spectramed
medical aid scheme and that the claimant has
not sustained any loss or incurred any expenses in respect of the
past medical expenses
claimed. In her heads of arguments, she
emphatically argued that, in terms of the RAF Act, the Fund is to
reimburse third parties
who suffer a loss as a result of a motor
vehicle action. According to her, a medical aid scheme is neither a
third party, nor a
supplier of services as contemplated by the RAF
Act. Furthermore, a medical aid scheme has no right to reimbursement
after honoring
its statutory obligation arising out the
Medical
Schemes Act 131 of 1998
.
Applicable
Law
[6]
Section 17
can be described as the heart of RAF Act as it is the
provision which creates the obligation by the Fund to compensate
persons
involved in motor vehicle accidents. The provision reads as
follows:
‘
17
– Liability of the Fund and Agents –
(1) the Fund or an Agent
shall – (a) subject to this Act, in the case of a claim for
compensation under this Section arising
from the driving of a motor
vehicle where the identity of the owner or the driver thereof has
been established; (b) subject to
any Regulation made under Section
26, in the case of a claim for compensation under this Section
arising from driving of a motor
vehicle where the identity of neither
the owner nor the driver thereof has been established, be obliged to
compensate any person
(the third party) for any loss or damage which
the third party has suffered as a result of any bodily injury to
himself or herself
or the death of or any bodily injury to any other
person, caused by or arising from the driving of a motor vehicle by
any person
at any place within the Republic, if the injury or death
is due to the negligence or other wrongful act of the driver or the
owner
of the motor vehicle. . .’
[7]
The courts have on many occasions held that medical aid schemes
benefits are a form of indemnity
insurance and should accordingly be
disregarded for the purpose of an award for damages, in accordance
with the principle of
res
inter alios acta.
In
Zysset
and Others v Santam Limited
[1]
the court made the following explanation:
‘
[I]t
is well established in our law that certain benefits which a
plaintiff may receive are to be left out of account as being
completely collateral. The classic example are (a) benefits received
by the plaintiff under ordinary contracts of insurance for
which he
has paid premiums and, (b) moneys and other benefits received by the
plaintiff from the benevolence of the third parties
motivated by
sympathy. It is said that the law baulks at allowing the wrongdoer to
benefit from a third party’s own prudence
in insuring himself
or from a third party’s benevolence or compassion in coming to
the assistance of the plaintiff.’
[2]
[8]
In the sphere of Road Accident Fund litigation, the principle of
res
inter alios acta
has
been consistently upheld. In
Mooideen
v Road Accident Fund
,
[3]
the court after setting out the relevant legal basis, held that ‘…
the settlement by Discovery of the deceased past
medical expenses,
did not relieve the Defendant of any of its legal obligation to
compensate the Plaintiff in her representative
capacity for the past
medical expenses which the deceased incurred. Discovery’s
payment of these expenses was, therefore,
an irrelevant collateral
transaction with respect of the Defendant when dealing with a claim
by the deceased estate against the
Defendant. The Defendant is not
entitled to raise Discovery’ medical aid scheme indemnification
as a defence and therefore
benefit from the payment.” This
court proceeded to say, that, “the recovery made by the
deceased estate is a matter
between the Plaintiff and Discovery and
has, therefore raised
res
inter alios acta
.’
[9]
I deem it apposite to mention that there has been a consistent legal
position adumbrated by the
courts regarding the Road Accident Fund’s
liability to the victims for the payment of the past medical expenses
where the
settlement was made by the medical aid scheme. On 12 August
2022, the Defendant issued an ‘internal Communique’
distributed
by the Acting Chief Claims Officer to all Regional
managers, instructing them to assess claims for past medical expenses
and reject
the medical expenses claimed if the Medical Aid has
already paid for the medical expenses. Discovery Health was one of
the medical
aid schemes on the list. It launched an urgent
application in the North Gauteng High Court, Pretoria,
[4]
for
inter
alia
an order reviewing and setting aside that communique (‘directive’),
contending that it was unlawful and inconsistent
with s 17 of the RAF
Act, which imposes an obligation on the RAF to pay a claimant’s
proven damages including past medical
expenses.
[10]
In his judgment, Mbongwe J found the directive to be unlawful and
inconsistent with the provisions of s 17
of RAF Act. Consequently, it
was set aside on that basis. At para 16 of the judgment, he
emphasized the purpose of the RAF Act
and similar legislation
preceding as aptly described in
Engelbrecht
v Road Accident Fund & Another
[5]
,
as
primarily to give the maximum protection to persons who suffer loss
or damages as a result of the negligent driving or unlawful
conduct
in the driving of a motor vehicle by the driver thereof. Most
importantly, it was held that the RAF Act does not provide
for the
exclusion of benefits the victim of a motor vehicle accident has
received from a private medical scheme for past medical
expenses.
[6]
The court reiterated the legal position that RAF is not entitled to
seek to free itself of the obligation to pay full compensation
to
victims of motor vehicle accidents.
[7]
Consequently, the RAF applied for leave to appeal, firstly in the
High Court
[8]
and secondly in
the Supreme Court of Appeal (SCA)
[9]
and they were unsuccessful. The Constitutional Court
[10]
also confirmed the decision of refusing an application for leave to
appeal by the High Court and SCA and refused the application
with
costs.
Conclusion
[11]
In my view, on consideration of all the authorities set out above, as
well as on a proper interpretation
of s 17 of RAF Act, it is apparent
that the Defendant’s liability to a claim for past medical
expenses is not affected by
the fact that the Plaintiff’s
medical aid has already paid those expenses. It is clear from the
decision referred to above,
that the
res inter alios acta
principle does not permit the Defendant to deduct the amounts paid by
Spectramed from the quantum payable to the Plaintiff in respect
of
past medical expenses. I interpose to mention that the counsel for
the Defendant, in her legal arguments, was unable to refer
this court
to any court decision and or authority which supports rejection of a
claim for past medical expenses by RAF.
Costs
[14]
With regard to costs, I deem it necessary to mention that,
notwithstanding the dismissal of the application
for leave to appeal
by the Constitutional Court, the RAF has nonetheless persisted in
refusing to pay the Plaintiff her past medical
expenses. In my view,
this conduct deserves to be deprecated. It is clutching at straws and
in the process depriving deserving
claimants of their lawful
entitlement. In the process, it is shamefully wasting yet more public
funds which should be directed
at settlement of worthy claims.
[11]
In
casu
,
I do take note of the fact that counsel for the Defendant was acting
on instructions of the letter dated 2 March 2023 from RAF
litigation
officer. In the circumstances I am persuaded that the punitive costs
award sought on behalf of the Plaintiff is warranted.
Order
[15]
The following order is made:
1.
The defendant shall pay the Plaintiff a sum
of R86 092.75 for the past hospital and medical expenses,
together with the interest
thereon at the prescribed legal rate of
interest calculated from 14 days after date of this order to date of
final payment; and
2.
The Defendant shall pay the Plaintiff’s
costs on the scale as between attorney and client and including the
costs of counsel
on scale B of rule 67A of the Uniform Rules.
S.T
Mgudlwa , AJ
Appearances
For
the Appellant:
Adv.
H. van Vuuren
Instructed
by:
Rosendorf
Reitz Barry Attorneys
6
Third Street
Bloemfontein
Ref:
HVV/fr/T00239
Tel:
051-4474394
For
the Third to Fifth Respondents:
Ms.
J Gouws
State
Attorney, Bloemfontein
11
TH
Floor,Fedsure Building
49
Charlotte Maxeke Street
Bloemfontein
Tel:051-4008703
[1]
Zysset
and Others v Santam Limited
1996 (1) SA 273
(C).
[2]
Ibid at 278C-D.
[3]
Unreported
judgment under case number 17737/2015, delivered on 11 December
2020.
[4]
Discovery
Health (Pty) Limited v Road Accident Fund and Another (2022/016179)
[2022] ZAGPPHC 768.
[5]
[2007]
(6) SA 96 (CC).
[6]
Ibid para 27.
[7]
Ibid para 29.
[8]
On
23 January 23, High Court in Pretoria denied the RAF leave to
appeal.
[9]
On
31 March 2023, the SCA dismissed the RAF’s application for
leave to appeal
[10]
On
18 October 2023, the Constitutional Court refuses the RAF’s
application for leave to appeal.
[11]
Van
Tonder v Road Accident Fund
[2023] ZAWCHC 301.