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[2024] ZANCHC 83
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Visser v Road Accident Fund (990/2022) [2024] ZANCHC 83 (30 August 2024)
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
NORTHERN CAPE DIVISION, KIMBERLEY
Case No: 990/2022
Reportable: YES / NO
Circulate to Judges: YES / NO
Circulate to Magistrates: YES / NO
In
the matter between:
MARTHA
ALLETTA
VISSER
Plaintiff
and
THE
ROAD ACCIDENT
FUND
Defendant
Heard
on:
12 August 2024
Delivered
on: 30 August 2024
Summary:
Claim against Road Accident Fund. Bodily injuries. Past medical
expenses. Whether benefits received from the private medical aid
scheme are deductible from claim of past medical expenses. RAF’s
application for a postponement or removal of matter pending
reconsideration of the RAF’s application for leave to appeal
in
terms of
s 17(2)(f)
of the
Superior Courts Act 10 of 2013
in
Van
Tonder v Road Accident Fund
(1736/2020; 9773/2021)
[2023] ZAWCHC
305
(1 December 2023) which was refused. Fund liable to pay.
ORDER
1.
The defendant shall pay the plaintiff a capital amount of R2 032
980.77 in respect
of plaintiff’s claim for past medical and
hospital expenses.
2.
The capital amount is payable by means of direct transfer into the
trust account
of the plaintiff’s attorney; Stefan Greyling
Incorporated – Trust Account, First National Bank, Menlyn
Maine, branch
code: 2[...], account number: 6[...], reference V[...].
3.
The plaintiff shall allow the defendant 180 (one hundred and eighty)
calendar
days to make payment of the capital amount calculated 14
(fourteen) days after date of this order, failing which the plaintiff
will be entitled to recover interest at the prescribed rate of
interest.
4.
The defendant shall pay the plaintiff’s taxed or agreed party
and party
costs on the High Court scale, which costs shall include
counsel’s fees in respect of attending the trial proceedings on
12 August 2024 and preparation of the heads of argument.
5.
The plaintiff shall, in the event that costs are not agreed, serve a
notice of
taxation on the defendant’s attorney of record; and
6.
The plaintiff shall allow the defendant 180 (one hundred and eighty)
days to
make payment of the taxed costs.
JUDGMENT
MAMOSEBO
J
[1]
On 5 October 2023 Stanton J granted an order by agreement to the tune
of R4 950 739.95
in partial settlement of the plaintiff’s
action, calculated as follows: R2 850 000.00 in respect of General
damages and R2 100 739.95
in respect of Loss of Earnings.
The plaintiff’s claim for past medical expenses was separated
from the other heads of damages
in terms of Rule 33(4) of the Uniform
Rules of Court and postponed
sine die.
[2]
This then makes the plaintiff’s claim for the payment of past
medical expenses,
either paid by POLMED medical aid or incurred by
the plaintiff or her husband personally, the only remaining issue
that stands
for determination on whether the Road Accident Fund (RAF)
is liable in that regard or not.
[3]
This matter was set down for hearing on 12 August 2024. At
commencement of the trial,
the State Attorney, Mr Mogano for the RAF,
submitted that he did not receive any instructions to proceed with
the hearing save
to seek the court’s indulgence for the hearing
to be postponed or removed from the court roll pending the decision
by the
President of the Supreme Court of Appeal for reconsideration
of the RAF’s application for leave to appeal in terms of
s
17(2)(f)
of the
Superior Courts Act 10 of 2013
.
[4]
The context argued was that the application before me to postpone
hearing this head
of damages pertaining to the past medical expenses
stems from the Western Cape Division’s unreported judgment of
Van Tonder v Road Accident Fund
(1736/2020; 9773/2021)
[2023]
ZAWCHC 305
(1 December 2023) before Cloete J. There the RAF
sought leave to appeal, which was dismissed with costs by Cloete J on
6
March 2024 on the basis that there are no prospects of success on
appeal. RAF thereafter petitioned the SCA. On 13 June 2024 Makgoka
JA
and Masipa AJA dismissed the application for leave to appeal with
costs on the grounds that there is no reasonable prospect
of success
in the appeal and no compelling reason why the appeal should be
heard.
[5]
In the present matter the following have informed my decision to
proceed with the
hearing of this matter. The trial court and the SCA
have already dismissed the RAF’s application for leave to
appeal for
lack of prospects of success and no compelling reasons for
the appeal to be heard. The RAF has ignored the principle that
postponements
are an indulgence granted by the courts following a
substantive application. To assume that pending the application for
reconsideration
will entitle it to a postponement or removal of the
matter from the roll is presumptuous. An application for
reconsideration does
not automatically suspend the hearing of a case.
There was no reason preventing me from hearing the action.
Resultantly, the action
was neither postponed nor removed from the
roll. Mr Jankowitz, for the plaintiff, was ordered to proceed.
[6]
The background facts are largely common cause. On 26 April 2021 the
plaintiff was
standing on the pavement next to her parked motor
vehicle with registration No C[...] 1[...] N[...] at 5[...] C[...]
Road, Memorial
Road Area, Kimberley at around 12:40 in the afternoon
with the passenger door open. It was right in front of her residence.
A collision
occurred where she was knocked down by a motor vehicle
with registration particulars C[...] 0[...] N[...] driven by Mr
Joseph Johannes
Kruger (the insured driver) who had lost control of
his vehicle while busy on his cellphone. The accident has left her
quadriplegic.
She was attended to at various hospitals and seen by
various doctors who dispensed to her medication dispatched from
various pharmacies
as specified in the index: medical accounts. She
is also under the care of specified caregivers.
[7]
In substantiation of the claim for past medical expenses, Mr
Jankowitz adduced the
evidence of Mrs Martha Aletta Visser, the
plaintiff, who testified from a wheelchair. She explained that she
was involved in an
accident on 26 April 2021 around 12:40 which led
her to be treated in numerous medical institutions. The plaintiff
went through
a bundle marked ‘Medical Expenses out of Pocket’,
contained in Bundle 1 of 6, and set out the expenses and vouchers
related to her medical and hospital treatment. She confirmed the
medical accounts as presented in support of her claim. She added
that
although the medical aid paid the medical accounts, she and her
husband paid the surplus (commonly referred to as co-payments)
not
covered by the medical aid. She does not remember the names of all
the doctors who attended to her medical condition but could
identify
the familiar names. Her husband is the main member of the medical
aid. They jointly paid in an amount of R285 209.85 out
of their
pocket. She has no knowledge of the amounts paid by the medical aid
as her husband, as the main member, is responsible
for and receives
the statements.
[8]
Mr Mogano was afforded the opportunity to cross-examine the
plaintiff. He however
did not cross-examine her, submitting that he
has no instructions from his client to do so. Mr Mogano added that
the medical bills
required scrutiny by experts to ascertain what is
related to the accident and what is not.
[9]
The next witness to testify on behalf of the plaintiff was her
husband, Mr Leon Andries
Louis Visser. He is a member of the POLMED
medical aid and the plaintiff is his dependant. He confirmed that his
wife attended
various hospitals and a rehabilitation centre. They
both paid in an amount of R285 209.85. He received the medical bills.
In total,
POLMED paid R1 442 226.02. Visser further testified
that after Stanton J’s order of 5 October 2023, he
acquired
a specially adapted wheelchair for his wife in the amount of
R305 544.90 due to her aforesaid serious disability. Mr Mogano did
not cross-examine this witness either for the same reasons alluded to
earlier.
The plaintiff closed her case.
[10] The
defence did not adduce any evidence. It follows that the plaintiff’s
case is uncontroverted.
[11]
Mr Jankowitz, relied on
Rayi
NO v Road Accident Fund
[1]
where
the court considered the question whether the defendant (RAF) was
liable to compensate the plaintiff for the past hospital
and medical
expenses in light of the fact that they have already been paid by
Bonitas. In answering the question in the affirmative,
Zondi J, then,
explained that the medical aid can recover from the RAF the payment
it made on behalf of the plaintiff and for which
the RAF is primarily
responsible by way of action based on the principle of subrogation.
Zondi J further expressed the view that
settlement by Bonitas of the
plaintiff’s past medical expenses does not relieve the RAF of
its obligation to compensate the
plaintiff for the past medical
expenses he incurred. The Court ordered the RAF to pay the past
medical expenses incurred by the
plaintiff. I fully agree with Zondi
J’s reasoning. For a detailed explanation on the
requirements of subrogation see
LAWSA Joubert et al.
[2]
[12]
Section 17(1)(a) of the Road Accident Fund Act
[3]
provides:
‘
(1)
The Fund … shall 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;
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, ….caused
by or
arising from the driving of a motor vehicle
by any person at any place within the Republic, if the injury ….is
due to the negligence or other wrongful act of the driver
or of the
owner of the motor vehicle…..’ (own emphasis added)
Interpreting this section by attaching
its ordinary grammatical meaning, one can assertively conclude that
the intention of the
legislature was not to exclude the plaintiff’s
past medical expenses in her recovery of losses and damages as a
result of
her bodily injuries. Responsibility still lies with the RAF
to compensate the injured person.
[13]
Kondile AJ, writing for a unanimous court in
Engelbrecht
v Road Accident Fund and Another
[4]
elucidated the purpose of the Act and said:
‘
[23]
… The stated primary concern of the Legislature in enacting
these statutes is, and has
always been, “to give the greatest
possible protection to persons who have suffered through a negligent
or unlawful act on
the part of the driver or owner of a motor
vehicle.”’
[14]
In
Discovery
Health (Pty) Ltd v Road Accident Fund and Another
[5]
,
Mbongwe J had the opportunity to consider an application brought on
an urgent basis by Discovery seeking an order setting aside
a
directive issued by the RAF on 12 August 2022 directing that all
claims for past medical expenses made by the claimants for damages
arising out of motor vehicle accidents and where such expenses were
paid by medical aid schemes, were to be rejected. The RAF’s
reasoning was that the claimants in such circumstances would not have
suffered any loss or incurred such expenses. Discovery opposed
the
RAF’s directive contending that it was unlawful and
inconsistent with the provisions of
s 17
of the
Road Accident Fund
Act 56 of 1996
which imposes an obligation on the RAF to pay the
claimants proven damages, including past medical expenses. On 26
October 2022,
the Court declared the directive issued on 12 August
2022 unlawful, reviewed it and set it aside. The Court further
interdicted
and restrained the RAF from implementing the said
directive.
[15]
The SCA has in
Erasmus
Ferreira & Ackermann and Others v Francis
[6]
remarked that:
‘
[16]
As a general rule the patrimonial delictual damages suffered by a
plaintiff is the difference
between his patrimony before and after
the commission of the delict. In determining a plaintiff's patrimony
after the commission
of the delict advantageous consequences have to
be taken into account. But it has been recognised that there are
exceptions to
this general rule.’
Anchored on this
precedent, it is therefore sensible that when considering
compensation for delictual damages one has to consider
the
patrimonial situation before and after the delict was committed. I am
further mindful of the pronouncement by Olivier JA
[7]
emphasizing that there is no single test to determine which benefits
are collateral and which are deductible but it is acknowledged
that
policy considerations of fairness ultimately play a determinative
role.
[16]
There is no gainsaying the extent of the injuries that the plaintiff
has suffered. As stated
earlier, she is now quadriplegic. It is not
an excuse that the RAF could not interrogate the medical bills to
ascertain which ones
are related to the accident because the
documents were discovered on 18 January 2023. This clearly gave
the RAF more than
ample time to conduct its intense verification. The
mere fact that POLMED has settled the medical bills does not relieve
the RAF
of its obligation to compensate Mrs Visser for the past
medical expenses incurred. It would be entirely up to POLMED to
recover
from the plaintiff what it is entitled to, if anything. This
will only come into effect once the plaintiff has been fully
compensated
by the RAF.
[17] Mr
Jankowitz handed in two proposed Draft Orders. The first amount is R1
727 435.87 which excludes
the wheelchair acquired after Stanton J’s
order and medical accounts and vouchers under cover of the Notice in
terms of
Rule 35(9)
served on the State Attorney 31 July 2024 and
filed on 01 August 2024. The second amount of R2 032 980.77 includes
the additional
amount of R305 544.90 comprising the wheelchair and
the necessities due to the plaintiff’s incapacity. He submitted
that
the latter draft is more appropriate as acquisition was
necessitated by the sequelae of her injuries. I agree. I therefore
find
the RAF liable for the plaintiff’s past medical expenses
paid by POLMED following the motor vehicle accident.
[18]
Coming to the question of costs. There is no reason why the costs
should not follow the result.
For purposes of this trial, only bundle
1 and 2 were referred to.
[19] In
the result, the following order is made:
1.
The
defendant shall pay the plaintiff a capital amount of R2 032
980.77 in respect of plaintiff’s claim for past
medical and
hospital expenses.
2.
The
capital amount is payable by means of direct transfer into the trust
account of the plaintiff’s attorney; Stefan Greyling
Incorporated – Trust Account, First National Bank, Menlyn
Maine, branch code: 2[...], account number: 6[...], reference V[...].
3.
The
plaintiff shall allow the defendant 180 (one hundred and eighty)
calendar days to make payment of the capital amount calculated
14
(fourteen) days after date of this order, failing which the plaintiff
will be entitled to recover interest at the prescribed
rate of
interest.
4.
The
defendant shall pay the plaintiff’s taxed or agreed party and
party costs on the High Court scale, which costs shall include
counsel’s fees in respect of attending the trial proceedings on
12 August 2024 and preparation of the heads of argument.
5.
The
plaintiff shall, in the event that costs are not agreed, serve a
notice of taxation on the defendant’s attorney of record;
and
6.
The
plaintiff shall allow the defendant 180 (one hundred and eighty) days
to make payment of the taxed costs.
MAMOSEBO J
NORTHERN CAPE HIGH COURT
For the plaintiff:
Adv. DC Jankowitz
Instructed by:
Adams & Adams
c/o
Stefan Greyling Inc
For
the defendant:
Mr A
Mogano
Instructed
by:
The
State Attorney
[1]
Rayi
NO v Road Accident Fund (343/2000)
[2010] ZAWCHC 30
(22 February
2010; [2010] JOL 25238 (WCC)
[2]
The
Law of South Africa, Second Edition, Volume 12,
Part 2
, LexisNexis,
Para 72
[3]
The
Road Accident Fund Act 56 of 1996
[4]
Engelbrecht
v Road Accident Fund and Another
2007 (6) SA 96
(CC) para 23
[5]
Discovery
Health (Pty) Ltd v Road Accident Fund and Another
[2022]
JOL 57493 (GP)
[6]
Erasmus
Ferreira & Ackermann and Others v Francis
2010 (2) SA 228
(SCA)
para 16
[7]
Standard
General Insurance Co Ltd v Dugmore NO
1997 (1) SA 33
(A) at 41E -42B