Van der Merwe v Road Accident Fund (1661/04) [2005] ZAGPHC 120; 2006 (3) SA 88 (T) (22 November 2005)

IN THE HIGH COURT OFSOUTH AFRICA(TRANSVAALPROVINCIAL DIVISION)REPORTABLEDATE: 22/11/2005Appeal no. 1661/2004In the appeal ofC J VAN DER MERWEAPPELLANTandROAD ACCIDENT FUNDRESPONDENTJUDGMENTHARTZENBERG J:[1] Does section 17(5) of the Road Accident Act, No. 56 of 1996, (“the Act”)confer a separate right of action, unrelated to the claim of the third party,to a supplier, or not? The appellant argues that it does. The respondent disagrees.[2]The common cause facts are very uncomplicated. One Grundlingh sustained injuries in a collision that occurred on 2 October 1998. He was treated on 20 February 2002, by the appellant, an anesthetist.The necessity for the treatment relates to the injuries sustained in the collision.The account was R1319,82.The appellant submitted a claim on the prescribed form on 27 June 2002. The respondent maintains that the claim has prescribed.The appellant argues that it only arose on 20 February 2002.The magistrate found for the respondent.[3] The liability of the Fund to pay compensation is derived from section 17.Subsection 1 provides that the Fund is obliged to pay compensation for damages, suffered as a result of bodily injury or of the death of someone, arising from the negligent driving of motor vehicles. It does not matter whether the particulars of the driver or owner of the vehicle are known or not.Subsections 2 and 3 make provision for the payment

of interest and costs. Subsection 4 confers an option on the Fund to give undertakings,in respect of future medical expenses and loss of income,tobe paid onlyat a later stage.The future medical expensesare defined as “the future accommodation of any person in a hospital or nursing home or treatment of or rendering of a service or supplying of goods to him or her” andonly become payable after they have been incurred and proof thereof has been submitted. Future loss of income becomes payable when the claimant would have had the benefit of the income. In terms of subsection 6 the Fund may make interim payments.[4] Subsection 5 provides as follows:“(5) Where a third party is entitled to compensation in terms of this section and has incurred costs in respect of himself or herself or any other person in a hospital or nursing home or the treatment of or any service rendered or goods supplied to himself or herself or any other person, the person who provided the accommodation or treatment or rendered the service or supplied the goods (the supplier) may claim the amount direct from the Fund or an agent on a prescribed form, and such claimshall be subjectmutatis mutandis,to the provisions applicable to the claim of the third party concerned, and may not exceed the amount which the third party could, but for this subsection, have recovered.”(My accentuation)[5] As far as prescription is

concerned it is dealt with in section 23(1) which provides:“(1) Notwithstanding anything to the contrary in any law contained, but subject to subsections (2) and (3), the right to claim compensation under section 17 from the Fund or an agent in respect of loss or damage arising from the driving of a motor vehicle in the case where the identity of either the driver or the owner thereof has been established, shall become prescribed upon the expiry of a period of three years from the date upon which the cause of action arose.”[6] It is noteworthy that the supplier,that theLegislaturedefined in section 17(5),supplies exactly those things and services in respect of which the Fund is given the option togive an undertaking in terms of section 17(4)(a). It has to do with the hospitalization, frail care and medical treatment that becomenecessary as a result of injuries sustained in collisions. If the third party is unable to or does not prosecute a claim against the fund but the supplier renders the service the section creates the right for the supplier to hold the Fund responsibleClearly a hospital or institution or doctor treating a third party who has already been provided with a section 17(4)(a) certificate will be able to claim the fees directly from the Fund and need not depend upon the third party to do so.. Because of the way that section 17(5) is worded,there does not seem to

be a reason why a supplier who has rendered services or will definitely render a service in futureIt may be somewhat of a daunting task to prove that a particular supplier will definitely render a future service.cannot institute an action despite the fact that the third party has already instituted an action or plans to institute an action.[7] The question really is what theLegislatureintended to do when it enacted section 17(5).Firstly it is plain that the claim “shall be subject … to the provisions applicable to the claim of the third party”.Some of those provisions are the limitation of liability of the Fund in respect ofpassengers in terms of section 18,the provisions of section 19in terms of which a third party will only have a claim if the insured driver was at faultSection 19(a), was not conveyed for reward on a motor cycle or a passenger in a vehicle driven by a member of the householdSection 19(b), ifhe/she has submitted a proper claimSection 19(c), did not enter into an agreement with another person in terms of which that other person will be entitled to a portion of the compensation or remunerationfor an investigation or a service unless properly instructed by the third party’s representativeSection 19(d), did not refuse to be medically examined, to supply medical reports to the Fund or to allow the Fund to inspect his/herhospital recordsSection 19(e)or did not

refuse, when in a position to do so, to submit an affidavit giving particularsabout the accident or to furnish statementsand documents relating to the accidentSection 19(f), the provisions of section 23 in respect of prescription and the provisions of section 24 regulating the manner in which a claim is to be lodged. Section 24(3) specifically provides that a supplier’s claim shall be in the prescribed form and subject to the provisions of the section.Secondly the supplier’s claim may not exceed the amount which the third party could have recovered. TheLegislaturestatutorily ceded that portion of a third party’s claimfor which he/shehad orwould have incurred liability to a supplier,directly to the supplier. The cession only becomes effective when the supplier accepts it and lodges a claim. The Legislature did not create aseparateliability for the Fund over and above the liability to the third party in terms of the Act.[8]A third party’s claim for bodily injuriesis subject to the “once and for all” ruleEvins v Shield Insurance Co. Limited,1980 (2) 814 (A) at 835 A-E and the cases referred to therein..The purpose of the rule is to prevent a multiplicity of actions and to ensure that there is an end to litigation.The third partycan claim damages already sustained and prospective damages.In theEvinsmatterP.835 F-HCorbett JA explains that as a result of the principle ofres

judicataand the “once and for all” rule a claimant for Aquilian damages who has litigated finallyis precluded from subsequently claiming from the same defendant upon the same cause of action further damages even though such loss manifests itself or become capable of assessment only after the conclusion of the original action.[9] In this matter it is clear that Grundlingh can no longer claim the fees which the appellant claims from the fund. There is no question of Grundlingh having been unawareof a claim against the Fund like in the matter ofDe Lange v Multilaterale Motorvoertuigongelukkefonds,2000(1) SA 921(T) on which Mr. Holland-Mter relies for his argument that the claim only arose on 20 February 2002. Grundlingh was since 2 October 1998entitled to claim damages from the fund. He could have claimed future medical expenses and more in particular he could have claimed the appellant’s prospective fee. The Fund would have been obliged to make provision for such a fee either by paying it or by giving an undertaking in terms of section 17(4)(a) of the Act. By failing to have lodged a claim Grundlingh’s right to claim that fee has now prescribed. The appellant now tries to divorce her action from Grundlingh’s action. That is precisely the opposite of what the Act states i.e.“that the claim shall be subject,mutatis mutandis,to the provisions applicable to the claim of” Grundlingh. Moreover if she is entitled to payment of her fee she is going to get more than what Grundlingh could have recovered. In my view the fact that Grundlingh failed to lodge a claim within three years and the appellant also failed to do so led thereto that both claims have prescribed in terms of the provisions of section 23(1) of the Act.The appeal is dismissed with costs.

IN THE HIGH COURT OF

SOUTH AFRICA

(

TRANSVAAL

PROVINCIAL DIVISION)

REPORTABLE

DATE: 22/11/2005

Appeal no. 1661/2004In the appeal ofC J VAN DER MERWEAPPELLANTand

Appeal no. 1661/2004

In the appeal of

C J VAN DER MERWE

APPELLANT

and

ROAD ACCIDENT FUND

RESPONDENT

JUDGMENT

HARTZENBERG J:[1] Does section 17(5) of the Road Accident Act, No. 56 of 1996, (“the Act”)confer a separate right of action, unrelated to the claim of the third party,to a supplier, or not? The appellant argues that it does. The respondent disagrees.[2]The common cause facts are very uncomplicated. One Grundlingh sustained injuries in a collision that occurred on 2 October 1998. He was treated on 20 February 2002, by the appellant, an anesthetist.The necessity for the treatment relates to the injuries sustained in the collision.The account was R1319,82.The appellant submitted a claim on the prescribed form on 27 June 2002. The respondent maintains that the claim has prescribed.The appellant argues that it only arose on 20 February 2002.The magistrate found for the respondent.[3] The liability of the Fund to pay compensation is derived from section 17.Subsection 1 provides that the Fund is obliged to pay compensation for damages, suffered as a result of bodily injury or of the death of someone, arising from the negligent driving of motor vehicles. It does not matter whether the particulars of the driver or owner of the vehicle are known or not.Subsections 2 and 3 make provision for the payment of interest and costs. Subsection 4 confers an option on the Fund to give undertakings,in respect of future medical expenses and loss of income,tobe paid onlyat a later stage.The future

medical expensesare defined as “the future accommodation of any person in a hospital or nursing home or treatment of or rendering of a service or supplying of goods to him or her” andonly become payable after they have been incurred and proof thereof has been submitted. Future loss of income becomes payable when the claimant would have had the benefit of the income. In terms of subsection 6 the Fund may make interim payments.[4] Subsection 5 provides as follows:

HARTZENBERG J:[1] Does section 17(5) of the Road Accident Act, No. 56 of 1996

, (“the Act”)

confer a separate right of action, unrelated to the claim of the third party,

to a supplier, or not? The appellant argues that it does. The respondent disagrees.

[2]

The common cause facts are very uncomplicated. One Grundlingh sustained injuries in a collision that occurred on 2 October 1998

. He was treated on 20 February 200

2, by the appellant, an an

esthetist.

The necessity for the treatment relates to the injuries sustained in the collision.

The account was R1319,82.

The appellant submitted a claim on the prescribed form on 27 June 2002. The respondent maintains that the claim has prescribed

.

T

he appellant argues that it only arose on 20 February 2002.

The magistrate found for the respondent.

[3] The liability of the Fund to pay compensation is derived from section 17.

Subsection 1 provides that the Fund is obliged to pay compensation for damages, suffered as a result of bodily injury or of the death of someone, arising from the negligent driving of motor vehicles. It does not matter whether the particulars of the driver or owner of the vehicle are known or not.

Subsections 2 and 3 make provision for the payment of interest and costs. Subsection 4 confers an option on the Fund to give undertakings

,

in respect of future medical expenses and loss of income

to

be paid only

at a later stage.

The f

uture medical expenses

are defined as “the future accommodation of any person in a hospital or nursing home or treatment of or rendering of a service or supplying of goods to him or her” and

only become payable after they have been incurred and proof thereof has been submitted. Future loss of income becomes payable when the claimant would have had the benefit of the income. In terms of subsection 6 the Fund may make interim payments.[4] Subsection 5 provides as follows

:

“(5) Where a third party is entitled to compensation in terms of this section and has incurred costs in respect of himself or herself or any other person in a hospital or nursing home or the treatment of or any service rendered or goods supplied to himself or herself or any other person, the person who provided the accommodation or treatment or rendered the service or supplied the goods (the supplier) may claim the amount direct from the Fund or an agent on a prescribed form, and such claimshall be subjectmutatis mutandis,to the provisions applicable to the claim of the third party concerned, and may not exceed the amount which the third party could, but for this subsection, have recovered.”(My accentuation)

“(5) Where a third party is entitled to compensation in terms of this section and has incurred costs in respect of himself or herself or any other person in a hospital or nursing home or the treatment of or any service rendered or goods supplied to himself or herself or any other person, the person who provided the accommodation or treatment or rendered the service or supplied the goods (the supplier) may claim the amount direct from the Fund or an agent on a prescribed form

, and such claim

shall be subject

mutatis mutandis

to the provisions applicable to the claim of the third party concerned, and may not exceed the amount which the third party could, but for this subsection, have recovered.”

(My accentuation)

[5] As far as prescription is concerned it is dealt with in section 23(1) which provides:

“(1) Notwithstanding anything to the contrary in any law contained, but subject to subsections (2) and (3), the right to claim compensation under section 17 from the Fund or an agent in respect of loss or damage arising from the driving of a motor vehicle in the case where the identity of either the driver or the owner thereof has been established, shall become prescribed upon the expiry of a period of three years from the date upon which the cause of action arose.”

[6] It is noteworthy that the supplier,that theLegislaturedefined in section 17(5),supplies exactly those things and services in respect of which the Fund is given the option togive an undertaking in terms of section 17(4)(a). It has to do with the hospitalization, frail care and medical treatment that becomenecessary as a result of injuries sustained in collisions. If the third party is unable to or does not prosecute a claim against the fund but the supplier renders the service the section creates the right for the supplier to hold the Fund responsibleClearly a hospital or institution or doctor treating a third party who has already been provided with a section 17(4)(a) certificate will be able to claim the fees directly from the Fund and need not depend upon the third party to do so.

[6] It is noteworthy that the supplier

that the

Legislature

defined in section 17(5)

supplies exactly those things and services in respect of which the Fund is given the option to

give an undertaking in terms of section 17(4)(a). It has to do with the hospitalization, frail care and medical treatment that becom

e

necessary as a result of injuries sustained in collisions

. If the third party is unable to or does not prosecute a claim against the fund but the supplier renders the service the section creates the right for the supplier to hold the Fund responsible

Clearly a hospital or institution or doctor treating a third party who has already been provided with a section 17(4)(a) certificate will be able to claim the fees directly from the Fund and need not depend upon the third party to do so.

. Because of the way that section 17(5) is worded,

there does not seem to be a reason why a supplier who has rendered services or will definitely render a service in future

It may be somewhat of a daunting task to prove that a particular supplier will definitely render a future service.

cannot institute an action despite the fact that the third party has already instituted an action or plans to institute an action.

[7] The question really is what the

intended to do when it enacted section 17(5)

Firstly it is plain that the claim “shall be subject … to the provisions applicable to the claim of the third party”.

Some of those provisions are the limitation of liab

ility of the Fund in respect of

passengers in terms of section 18,

the provisions of section 19

in terms of which a third party will only have a claim if the insured driver was at fault

Section 19(a)

, was not conveyed for reward on a motor cycle or a passenger in a vehicle driven by a member of the household

Section 19(b)

, if

he/she has submitted a proper claim

Section 19(c)

, did not enter into an agreement with another person in terms of which that other person will be entitled to a portion of the compensation or remuneration

for an investigation or a service unless properly instructed by the third party’s representative

Section 19(d)

, did not refuse to be medically examined, to supply medical reports to the Fund or to allow the Fund to inspect his/her

hospital records

Section 19(e)

or did not refuse, when in a position to do so, to submit an affidavit giving particulars

about the accident or to furnish statements

and documents relating to the accident

Section 19(f)

, the provisions of section 23 in respect of prescription and the provisions of section 24 regulating the manner in which a claim is to be lodged. Section 24(3) specifically provides that a supplier’s claim shall be in the prescribed form and subject to the provisions of the section.

Secondly the supplier

’

s claim may not exceed the amount which the third party could have recovered. The

statutorily ceded that portion of a third party’s claim

for which he/she

had or

would have incurred liability to a supplier

directly to the supplier. The cession only becomes effective when the supplier accepts it and lodges a claim. The Legislature did not create a

separate

liability for the Fund over and above the liability to the third party in terms of the Act.

[8]

A third party’s claim for bodily injuries

is subject to the “once and for all” rule

Evins v Shield Insurance Co. Limited,

1980 (2) 814 (A) at 835 A-E and the cases referred to therein.

The purpose of the rule is to prevent a multiplicity of actions and to ensure that there is an end to litigation.

The third party

can claim damages already sustained and prospective damages.

In the

Evins

matter

P.835 F-H

Corbett JA explains that as a result of the principle of

res judicata

and the “once and for all” rule a claimant for Aquilian damages who has litigated finally

is precluded from subsequently claiming from the same defendant upon the same cause of action further damages even though such loss manifests itself or become capable of assessment only after the conclusion of the original action.

[9] In this matter it is clear that Grundlingh can no longer claim the fees which the appellant claims from the fund. There is no question of Grundlingh having been unaware

of a claim against the Fund like in the matter of

De Lange v Multilaterale Motorvoertuigongelukkefonds,

2000(1) SA 921(T) on which Mr. Holland-M

ter relies for his argument that the claim only arose on 20 February 2002. Grundlingh was since 2 October 1998

entitled to claim damages from the fund. He could have claimed future medical expenses and more in particular he could have claimed the appellant’s prospective fee. The Fund would have been obliged to make provision for such a fee either by paying it or by giving an undertaking in terms of section 17(4)(a) of the Act. By failing to have lodged a claim Grundlingh’s right to claim that fee has now prescribed. The appellant now tries to divorce her action from Grundlingh’s action. That is precisely the opposite of what the Act states i.e.

“that the claim shall be subject,

mutatis mutandis,

to the provisions applicable to the claim of” Grundlingh. Moreover if she is entitled to payment of her fee she is going to get more than what Grundlingh could have recovered. In my view the fact that Grundlingh failed to lodge a claim within three years and the appellant also failed to do so led thereto that both claims have prescribed in terms of the provisions of section 23(1) of the Act.The appeal is dismissed with costs

………………………….WJ HARTZENBERGJUDGE OF THE HIGH COURT.

I agree

………………………A DE VOSJUDGE OF THE HIGH COURT

HEARD ON

:

16/05/2005

FOR THE APPELL

ANT

: ADV J HOLLAND-MTTER

INSTRUCTED BY

MESSRS

OOSTHUYSEN NAUD&

SCHOEMAN ATTORNEYS,

PRETORIA

FOR THE RESPONDENT

: ADV

F BEZUIDENHOUT

MOTHLE JOMMA SABDIA

ATTORNEYS,

DATE OF JUDGMENT

: 22/11/2005