Potgieter v Road Accident Fund (2416/2005) [2012] ZAECPEHC 46 (31 May 2012)

Potgieter v Road Accident Fund (2416/2005) [2012] ZAECPEHC 46 (31 May 2012)

The court held that the defendant is entitled under Rule 36(2) and (5) to require the plaintiff to undergo a second and final medical examination by its chosen clinical psychologist, as only one prior examination at the defendant's instance has occurred. The plaintiff's objections, including prior examinations by his own experts and other specialists, do not count towards the defendant's entitlement under the Rules. The court found that the proposed examination does not constitute an unreasonable invasion of the plaintiff's constitutional rights, as such rights may be limited in the interests of justice and fair litigation. The examination is necessary to ensure accurate assessment of...

Citation
[2012] ZAECPEHC 46
Parties
Plaintiff: Fabian Brandon Thomas Potgieter; Defendant: Road Accident Fund
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
31 May 2012
Case Number
2416/2005
Procedural Posture
Civil Application / Application Under Rule 36(3)(d)(ii) for Further Medical Examination Prior to Trial
Outcome
Plaintiff's objection to the proposed medical examination is dismissed; the application is granted.
Judges
P.W. Tshiki
Legal Topics
Medical Examination, Road Accident Fund Act, Bodily Injury Compensation, Rule 36 Procedure
Civil Procedure Delict Medical Examination Road Accident Fund Act Bodily Injury Compensation Rule 36 Procedure

Case Brief

Summary, issues, holding and outcome

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Parties

Fabian Brandon Thomas Potgieter

Plaintiff

Road Accident Fund

Defendant

Procedural Posture

Civil Application / Application Under Rule 36(3)(d)(ii) for Further Medical Examination Prior to Trial

Legal Issues

  1. 1 Whether the defendant is entitled to require the plaintiff to undergo a second medical examination by a clinical psychologist of its choice under Rule 36(2) and (5).
  2. 2 Whether the plaintiff's objections to the further examination are reasonable and supported by Rule 36(3).
  3. 3 Whether the proposed examination constitutes an unreasonable invasion of the plaintiff's constitutional rights to privacy and bodily integrity.

Ratio Decidendi

The court held that the defendant is entitled under Rule 36(2) and (5) to require the plaintiff to undergo a second and final medical examination by its chosen clinical psychologist, as only one prior examination at the defendant's instance has occurred. The plaintiff's objections, including prior examinations by his own experts and other specialists, do not count towards the defendant's entitlement under the Rules. The court found that the proposed examination does not constitute an unreasonable invasion of the plaintiff's constitutional rights, as such rights may be limited in the interests of justice and fair litigation. The examination is necessary to ensure accurate assessment of...

Court Disposition

Plaintiff's objection to the proposed medical examination is dismissed; the application is granted.

Orders

  • The plaintiff, Fabian Brandon Thomas Potgieter, must submit himself to a medical examination by Mr Larry Loebenstein, clinical psychologist, at a mutually agreed date and time at 75 Second Avenue, Newton Park, Port Elizabeth.
  • The plaintiff may have his own medical adviser present at the examination.