Road Accident Fund v Chin (23037/2016) [2017] ZAWCHC 153; 2018 (3) SA 547 (WCC) (9 November 2017)

Road Accident Fund v Chin (23037/2016) [2017] ZAWCHC 153; 2018 (3) SA 547 (WCC) (9 November 2017)

The court held that the grounds for objecting to a nominated medical examiner under Uniform Rule 36(3) are not limited to lack of qualification or prior unpleasant experience, but must be reasonable, material, and substantial. The respondent's objections, based on apprehension of bias and alleged prior conduct of Dr. Marks, were not supported by admissible similar fact evidence, as the affidavits submitted did not establish sufficient similarity of conditions or relevance. The respondent was invited to have her own medical practitioner and legal representative present during the examination, and could record the examination, which would address concerns about conduct and bias. The...

Citation
[2017] ZAWCHC 153
Parties
Applicant: Road Accident Fund; Respondent: Maria Dorethea Chin
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
9 November 2017
Case Number
23037/2016
Procedural Posture
Interlocutory Application / Application to Compel Medical Examination Under Uniform Rule 36(2)
Outcome
Application granted; respondent ordered to submit to medical examination under specified conditions.
Judges
H Slingers
Legal Topics
Uniform Rule 36, Medical Examination, Objection to Expert, Similar Fact Evidence, Right to Fair Trial
Civil Procedure Uniform Rule 36 Medical Examination Objection to Expert Similar Fact Evidence Right to Fair Trial

Case Brief

Summary, issues, holding and outcome

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Parties

Road Accident Fund

Applicant

Maria Dorethea Chin

Respondent

Procedural Posture

Interlocutory Application / Application to Compel Medical Examination Under Uniform Rule 36(2)

Legal Issues

  1. 1 Whether the respondent's objections to submitting to a medical examination by the applicant's nominated doctor are reasonable, material, and substantial.
  2. 2 Whether similar fact evidence regarding the doctor's alleged bias and conduct is admissible.
  3. 3 Whether the respondent may impose conditions or refuse the examination based on apprehension of bias or prior conduct.

Ratio Decidendi

The court held that the grounds for objecting to a nominated medical examiner under Uniform Rule 36(3) are not limited to lack of qualification or prior unpleasant experience, but must be reasonable, material, and substantial. The respondent's objections, based on apprehension of bias and alleged prior conduct of Dr. Marks, were not supported by admissible similar fact evidence, as the affidavits submitted did not establish sufficient similarity of conditions or relevance. The respondent was invited to have her own medical practitioner and legal representative present during the examination, and could record the examination, which would address concerns about conduct and bias. The...

Court Disposition

Application granted; respondent ordered to submit to medical examination under specified conditions.

Orders

  • The respondent, Ms Dorethea Chin, is directed to submit to a medical examination by Dr. Marks at his rooms at Bowwood, Claremont, on a date mutually agreed to between the parties but within one month of the date of this order.
  • Ms Chin may have her own medical practitioner and legal representative present during the examination and may, if she chooses, audio record the examination.