Bester obo C & E.N v Road Accident Fund (3200/2019) [2024] ZAECMKHC 67 (30 May 2024) (2024)

INTHE HIGH COURT OF SOUTH AFRICA

(EASTERNCAPE DIVISION – MAKHANDA)

CaseNo: 3200/2019

(ConsolidatedClaims Case Nos. 3200/2019 & 3201/2019)

Inthe matter between:

JOHANBESTER obo C[...]& E[...]N[...]Plaintiff

and

ROADACCIDENTFUNDDefendant

JUDGMENT

METU AJ:

INTRODUCTION

1.These are two consolidated cases in whichthe plaintiff acts as curator ad litemfor both minor children. This is the fifth time this matter has comebefore the Court, and the other heads of damages have beensettledsave for loss of support and past hospital and medical expenses. Pasthospital and medical expenses are before me for determination,and byagreement, the loss of support claim is separated and postponed forlater determination sine die.

2.Ms. Watt for the Plaintiff seeks to adduceevidence pertaining to past hospital and medical expenses by way ofaffidavit, whichis permissible in terms of Rule 38 (2) of theUniform Rules of Court. Ms. Futshane, for the Defendant, acquiescedto evidence beingbrought by way of an affidavit as she had nointention of cross-examining the witness.

3.According to Rule 38 (2) a Court has thediscretion to depart from the default position that oral evidence beled as a norm, wherethe following factors are taken intoconsideration:

3.1.the nature of the proceedings;

3.2.the nature of the evidence;

3.3.whether the application for evidence to beadduced by way of affidavit is by agreement and

3.4.whether it is fair to allow evidence onaffidavit.

4.An answer to the above-enumerated factors,what is before this Court for determination is a limited issue ofpast hospital and medicalexpenses. Ms. Watt seeks to adducethrough affidavit(s) evidence of Ms. Ziphora Mahlare, a FinancialConsultant of ProfmedMedical Scheme. The medical scheme paidfor the treatment at the hospital(s), for the two minor children as aresult of injuriesthey sustained in the motor vehicle accident thatoccurred on 14 October 2015.

5.The defendant neither denies that ProfmedMedical Scheme paid for the past hospital and medical expenses northat these were reasonablecosts for the treatment provided.

6.The defendant's issue is whether it ispermissible at law for the Fund to refund the Plaintiff for the pasthospital and medicalexpenses which were paid by the medical aid, asthe Defendant views this as double compensation.

ISSUES FORDETERMINATION

7.Whether to allow evidence to be adducedthrough affidavits.

8.Whether the Plaintiff is entitled tocompensation for past hospital and medical expenses.

9.Whether or not this Court is best poised togrant costs for these proceedings. Put otherwise, whether costsshould be reserved forlater determination.

CONSIDERATION OFWHETHER TO ALLOW EVIDENCE TO BE ADDUCED BY AFFIDAVIT

10.The point of departure is that theDefendant is not opposed in evidence being produced by way ofaffidavit in so far as the issueof past hospital and medicalexpenses is concerned.

11.The Defendant does not challenge thereasonableness of the amounts charged by the hospital nor does shechallenge the need for thetreatment.

12.The witness would have to come down fromJohannesburg to confirm that the medical aid paid the undisputedamounts to the mentionedhospital(s).

13.Clearly, producing evidence throughaffidavits in circ*mstances where the deponent is not required to becross-examined is lessexpensive and expedient than fastidiouslyfollowing the norm of having viva voceevidence.

14.Plasket,AJA in MadibengLocal Municipality v Public Investment Corporation Ltdaptly stated[1]:

“Theapproach to rule 38(2) may be summarised as follows. A trial courthas a discretion to depart from the position that, in a trial,oralevidence is the norm. When that discretion is exercised, twoimportantfactors will inevitably be the saving of costsand thesaving of time, especially the time of the court in this era ofcongested court rolls and stretched judicial resources.Moreimportantly, the exercise of the discretion will be conditioned bywhether it is appropriate and suitable in the circ*mstancesto allowa deviation from the norm. That requires a consideration of thefollowing factors: the nature of the proceedings; thenature of theevidence; whether the application for evidence to be adduced by wayof affidavit is by agreement; and ultimately,whether, in all thecirc*mstances, it is fair to allow evidence on affidavit.”

15.InUramint/a Areva Resources Southern Africa v PerieSatchwell, J propounded[2]:

[24]We rightly expect and prefer that viva voce evidence in both civiland criminal proceedings be given in acourtroom at the seat of thecourt in the presence of the parties and their representatives andthe judicial officer and the public.The reasoning is obvious.The court buildings and personnel and the procedures therein arededicated to the process of litigation.Anyone may attend. Thelegitimacy of the process derives, in part, from this dedication.

[25] Yet within these stone walls staffed by personneldressed as though they were clerics in the reign of Henrythe Eighth,we have no difficulty in recognising the need for accommodatingwitnesses to meet the interests of justice. We utilise manydifferent ways of procuring evidence because both the Constitutionand the High Court Rules permit developmentof appropriateprocedures. We do so because we recognise that court proceduresand the Rules which regulate such practicesare devised to administerjustice and not hamper it. Evidence is received onaffidavit; closed-circuit television regularly allows forevidence to be given in one room and transmitted to a courtroom;inspections inloco take place and judges or nominated persons takeevidence on commission. The test to be applied by the courtin exercising its discretion is whether or not 'it is convenient ornecessary for the purposesof justice'.

[myunderlining]

16.In exercising my discretion, I will allowZiphora Mahlare's evidence to be adduced in the form of an affidavitregarding the pasthospital and medical expenses incurred on behalfof C[...]and E[...] N[...], which I accept and admit as exhibits “A”and “B,” respectively.

IS THE PLAINTIFFSUITED TO BE COMPENSATED FOR PAST MEDICAL, HOSPITAL AND RELATEDEXPENSES WHEN THE SAME WERE PAID BY THE MEDICALAID SCHEME?

17.It is trite that a claimant cannot receivemore than (s)he has incurred actual loss. Beshe J, in Mullinsv RAF (unreported) (3650/2014) [2016]ZAECPEHC 32 (4 August 2016) had this to say,

“…Inmy view, it will be appropriate to deduct the amount received by wayof a disability grant from the award for loss of earningsand earningcapacity especially in view of the fact that it was received as aresult of the disability arising from collision inquestion…”

18.Ms Watt sought relief of defendant beingordered to pay the past hospital and medical expenses to theplaintiff, and from the barindicated that these will be reimbursedto the medical scheme. Ms Futsane on the other hand argued that thepayment to the plaintiffwould be tantamount to double compensation.

19.ScottJ in the case of Zyssetand Other v Santam Limitedtells us that[3]:

“…benefitsreceived by the plaintiff under ordinary contracts of insurance forwhich he has paid the premiums and(b)moneysand otherbenefits received by a plaintiff from the benevolence of thirdparties motivated by sympathy. It is said that the lawbaulks atallowing the wrongdoer to benefit from the plaintiff's own prudencein insuring himself or from a third party's benevolenceor compassionin coming to the assistance of theplaintiff. Nor, it wouldseem, are these the only benefits which are to betreated asresinter alios actae. InMutual and Federal Insurance CoLtd v Swanepoel 1988 (2) SA 1 (A) it was held, forexample, that a military pension which was in the nature ofasolatiumfor the plaintiff's non-patrimonialloss was notto be deducted.

20.Windell J quotes with approval thefollowing cases:

[13] Similarly,inMooideenv The Road Accident Fund,the court confirmed that the medical aid’s payment of medicalexpenses was an irrelevant collateral transaction, and theRAF wasnot entitled to raise the medical aid scheme indemnification as adefence and therefore benefit from the payment. The courtheld that:

‘Plaintiffthus, on behalf of the deceased's estate, in terms of the ruleswhich I have said out of Discovery and the common lawof insurance,can recover from the defendant as if there had been noindemnification at all. The recovery made by the deceasedestate isa matter between the plaintiff and Discovery and has, therefore, raisedres inter alios acta.’

[14]The courtinRayiNO v Road Accident Fund,wasconfronted with the same question as in the present matter, namelywhether the RAF was obligated to reimburse the plaintifffor previoushospital and medical expenses, given that those costs had alreadybeen paid by the plaintiff’s medical aid.Zondi J, held asfollows:

‘[12] It is clear to me that a procedural remedy which isavailable to the supplier of goods or services in terms ofsection175(5) of the[RAF]Act is not available to Bonitas. Itpaid past medical expenses on behalf of the plaintiff.It did notsupply goods or provide services on behalf of the plaintiff. Bonitascan therefore not claim directly from the defendantthe expenses itincurred on behalf of the plaintiff in terms of section 175(5) of theAct.

[13] Bonitas can recover from the defendant the paymentit made on behalf of the plaintiff and for which thedefendant isprimarily responsible by way of an action based on the principle ofsubrogation. It may sue the defendant in its ownname or in the nameof the plaintiff.(Rand Mutual Assurance Co Ltd v RoadAccident Fund[2008] ZASCA 114; 2008 (6) SA 511 (SCA) at para 24).Subrogationembraces a set of rules providing for the reimbursem*nt of an insurerwhich has indemnifiedits insured under a contract of indemnityinsurance (Lawsa (reissue) vol 12 para 373).

[14]Ms Carter, who appeared for the defendant, submitted that theplaintiff cannot claim for the past medicalexpenses after payment ofsuch expenses by Bonitas. She argued that in the absence of a cessionof its rights of action by Bonitasin favour of the plaintiff,Bonitas is the only party that is entitled to claim for past medicalexpenses. I disagree with Ms Carter’scontention.

[15] In my view, settlement by Bonitas of theplaintiff’s past medical expenses does not relieve thedefendantof its obligation to compensate the plaintiff for the pastmedical expenses he incurred. Payment by Bonitas was made in terms ofthe undertaking made by the plaintiff to Bonitas in terms of whichBonitas agreed to settle the plaintiff’s past medicalexpenseson the understanding that upon a successful recovery from thedefendant, the plaintiff would reimburse Bonitas for allthe costs itincurred on plaintiff’s behalf in connection with the claimagainst the defendant.

[16]Theobligation which the undertaking imposes on the plaintiff towardsBonitas does not arise until such time that there is a successfulrecovery of the past medical expenses by the plaintiff from thedefendant. The defendant primarily remains liable to the plaintifffor the payment of the past medical expenses and the liability ofBonitas to the plaintiff for the past medical expenses is secondaryto that of the defendant. The defendant should pay the past medicalexpenses to the plaintiff who should upon receipt of paymentaccountto Bonitas in terms of theundertaking.’(Emphasis added)

21.Zondi J in RayiN.O. v RAF at paragraph 28enunciated the principle as follows:

“Paymentby Bonitas of the plaintiff’s past medical expenses does notrelieve the defendant of its obligation to compensatethe plaintifffor past medical expenses.”

22.Then Cloete J in vanTonder v RAF (unreported) (1736/2020;9773/2021) [2023 ZAWCHC 305 (1 December 2023) asserted:

“Theonly way to prevent their loss of expenses incurred for the medicaltreatment of their client victims of motor vehicle accidents,wouldbe for the medical schemes to institutes concurrent claims againstthe RAF and in due course seek the consolidation of thehearing ofthe two matters. The costs of the proceedings will be astronomicaland unnecessarily incurred by the RAF which, in termsof the PublicFinance Management Act, will constitute wasteful expenditure.”

23.Inthis division Rugananan J in the matter of vanHeerden v RAFfollowed the SCA decision in Baneand Others v D’Abrossi 2010(2) SA 539 (SCA) where he cites the following passage withapproval[4]:

“[P]aymentswhich the medical aid was and is obliged to make to the respondentconstitute the discharge by the respondent of contractualobligationsflowing from the contract concluded between it and the respondent. Assuch they constitute res inter alios acta andthe appellants cannotclaim the benefit of them.”

24.I find that there is no justification atlaw why the Defendant should be exonerated to pay the Plaintiff thepast hospital and medicalexpenses. Apart for submissions madefrom the bar, by Ms. Watt, there is no evidence led in this matterthat there is anobligation to reimburse the medical scheme in termsof an undertaking that the Plaintiff and/or member of the medicalscheme hassigned. The medical scheme is not divested of reliefin the event that it is not reimbursed upon payment being received bythe Plaintiff.

25.With the foregoing, I make the followingorder:

A)The Defendant is liable to pay theplaintiff’s past hospital and medical expenses for C[...]N[...]in the sum of R43 258.20and R26 848.48 for E[...] N[...], whichpayment shall be remitted into the Trust Account of Plaintiff’sAttorneys, AC DESOUSA ATTORNEYS, whose details are as follows:

AccountHolder:A C De Sousa Attorneys Trust Account

Bank:F[…]

Branch:M[…]

BranchCode:2[…]

AccountNo.:6[…]

B)The Defendant is also liable for the costsof suit, including cost of Counsel on Scale B and for the cost ofreservation and attendanceupon consultations with the followingexperts:

a.Mr. Jean du Rand Industrial Psychologist

b.Human & Morris -Actuaries

c.Karen Andrews -Clinical Psychologist

B.METU

ACTINGJUDGE OF THE HIGH COURT

APPEARANCES:

Counselfor the PlaintiffAdv. Watt

InstructedbyA C De Sousa Attorneys

67 High Street

Makhanda

(Ref: D.Jepp/Cornelia/NIE4 & NIE5)

Counselfor the DefendantMs. Futshane

InstructedbyRoad Accident Fund

20 Drury Lane

EastLondon

(Claim No.:505/12768830/1012/2)

(Link No.: 4627214 (CN[...])

(Claim No.:505/12768830/1012/1)

(Link No.: 4583244 (EN[...]))

DateHeard27 May 2024

DateDelivered30 May 2024

[2](unreportedKZD A105/2004) (20 August 2018)

[4](845/2021) [2022] ZAECQBHEC 37 (4 October 2022) at paragraph 11.