Genesis Medical Scheme v McCarthy Limited (17025/2009) [2017] ZAKZDHC 4 (15 February 2017)

Genesis Medical Scheme v McCarthy Limited (17025/2009) [2017] ZAKZDHC 4 (15 February 2017)

Although both the plaintiff's and Joubert's claims arose from a single cause of action, the defendant was at all times aware that the claim for past medical expenses had been transferred to the plaintiff and did not object to the separation of claims. By failing to plead to the relevant paragraph in Joubert's particulars of claim and by proceeding with settlement negotiations that excluded past medical expenses, the defendant tacitly or expressly consented to the splitting of the cause of action. As such, the defendant cannot now object to the plaintiff's separate action for recovery of medical expenses. The special plea is therefore dismissed.

Citation
[2017] ZAKZDHC 4
Parties
Plaintiff: Genesis Medical Scheme; Defendant: McCarthy Limited
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
15 February 2017
Case Number
17025/2009
Procedural Posture
Civil Trial / Special Plea Determination; Stated Case Under Rule 33
Outcome
Defendant's special plea dismissed with costs.
Judges
Kruger
Legal Topics
Once and for All Rule, Res Judicata, Splitting of Causes of Action, Subrogation, Special Plea
Civil Procedure Delict Once and for All Rule Res Judicata Splitting of Causes of Action Subrogation Special Plea

Case Brief

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Parties

Genesis Medical Scheme

Plaintiff

McCarthy Limited

Defendant

Procedural Posture

Civil Trial / Special Plea Determination; Stated Case Under Rule 33

Legal Issues

  1. 1 Whether the plaintiff's claim for past medical expenses is precluded by the once and for all rule.
  2. 2 Whether the settlement agreement between Joubert and the defendant extinguished the plaintiff's right to claim.
  3. 3 Whether the defendant consented to the splitting of the cause of action for past medical expenses.

Ratio Decidendi

Although both the plaintiff's and Joubert's claims arose from a single cause of action, the defendant was at all times aware that the claim for past medical expenses had been transferred to the plaintiff and did not object to the separation of claims. By failing to plead to the relevant paragraph in Joubert's particulars of claim and by proceeding with settlement negotiations that excluded past medical expenses, the defendant tacitly or expressly consented to the splitting of the cause of action. As such, the defendant cannot now object to the plaintiff's separate action for recovery of medical expenses. The special plea is therefore dismissed.

Court Disposition

Defendant's special plea dismissed with costs.

Orders

  • The Defendant’s special plea is dismissed with costs.