Gunther v Road Accident Fund

On 23 August 2013, the plaintiff, a 67-year-old retired school teacher, was a passenger in a vehicle driven by her husband on the R321 between Grabouw and Villiersdorp when it collided with another vehicle and a truck. Her husband died at the scene. The plaintiff sustained multiple injuries: a fractured right wrist and right thumb, a laceration to her left leg, a fracture of the left knee joint, rib fractures, a fracture of the C6 spinal vertebrae, and compression of the lumbar vertebrae. She received extensive medical treatment at Vergelegen Medi Clinic (including surgery) and later at Panorama Mediclinic (removal of plates and screws). She also suffered depression triggered by the multiple operations, loss of her husband, and physical adjustments. She was a member of GEMS medical aid, which paid some of her medical expenses; she paid the surplus. The plaintiff claimed past medical and related expenses totalling R272 388.23. By the time of trial, the parties had settled all other heads of damage (liability, future medical costs, loss of income, general damages) and the only remaining dispute was the claim for past hospital, medical and related expenses and costs.

• Whether the defendant's defences based on the doctrine of subrogation, section 19(d)(i) of the Road Accident Fund Act, and Regulations 7 and 8 of the Medical Schemes Act should have been pleaded and could be raised for the first time in written submissions after the close of both parties' cases.
• Whether the plaintiff is entitled to claim past medical expenses from the RAF where her medical aid scheme (GEMS) had already paid a portion of those expenses.
• Whether the doctrine of subrogation or the statutory provisions of the Road Accident Fund Act and Medical Schemes Act exclude or limit the RAF's liability for past medical expenses paid by a plaintiff's medical aid.

The court granted judgment for the plaintiff, ordering the defendant to pay R272 388.23 in respect of past hospital, medical and related expenses, together with R750 000 in general damages and R148 199 in loss of income (as agreed), and to provide a 100% undertaking under section 17(4) of the RAF Act for future accommodation and medical costs. The defendant was ordered to pay the plaintiff's taxed or agreed costs on the High Court scale, including costs of previous trial dates, qualifying expenses of seven expert witnesses, and counsel's fees on scale C.

The primary ratio decidendi is that where a plaintiff's past medical expenses have been paid by their medical aid scheme, the plaintiff remains entitled to claim those expenses from the Road Accident Fund under section 17 of the RAF Act. The benefit received from a private insurance contract (medical aid) is a collateral benefit (res inter alios acta) that does not absolve the wrongdoer/RAF of its statutory liability. The RAF's liability is not excluded or limited by the doctrine of subrogation, section 19(d)(i) of the RAF Act, or Regulations 7 and 8 of the Medical Schemes Act. Additionally, defences not pleaded in terms of Rule 18(4) cannot be raised for the first time in written submissions after the close of pleadings and evidence.

The court strongly deprecated the defendant's conduct in failing to plead specific defences and raising them for the first time after the trial concluded, describing this as an ambush. The court stated that had a punitive costs order been requested, it would have given serious consideration to granting one given that the defendant failed to plead or amend its plea, raised defences in heads of argument, advanced submissions not supported by law, and persisted with ill-conceived and unmeritorious arguments despite clear existing authority to the contrary, all to escape its statutory obligation to compensate the plaintiff.

This case reinforces the established line of authority in South African law (including Discovery Health v RAF, Van Tonder v RAF, Rayi NO v RAF, Zysset v Santam, and Abdool Carrim) that the Road Accident Fund cannot escape liability for past medical expenses by relying on the doctrine of subrogation or by arguing that the plaintiff has suffered no loss because their medical aid paid. It confirms that medical aid benefits are collateral and res inter alios acta, and do not reduce or extinguish the RAF's statutory liability to compensate victims. The judgment also serves as a strong procedural warning that defences must be properly pleaded and cannot be raised for the first time after the close of evidence.