[2]
For the purposes of this appeal the parties placed further facts, which have a material bearing
on its outcome, before this court. These were that Grundling submitted his claim for bodily injuries, which did not include the appellant’s
claim, to the Fund on 1 September 2000, that is, before the appellant had treated him; that when the appellant submitted his claim
on 27 June 2002, the Fund had not yet finalised Grundlingh’s claim; and that the Fund settled Grundlingh’s claim on 27 November
2002 without taking the appellant’s claim into account in the settlement.
[3]
Prescription is dealt with in s 23 of the Act. Section 23(1) states that the right to claim compensation
from the Fund ‘shall become prescribed upon expiry of a period of three years from the date upon which the cause of action
arose’. Section 23(3) provides that ‘(n)otwithstanding subsection (1), no claim which has been lodged in terms of section
24 shall prescribe before the expiry of a period of five years from the date on which the cause of action arose.’ Thus where
a third party submits a claim to the Fund in the prescribed form within the three-year period the claim prescribes only after a period of five years. Conversely, if the claim is submitted after
the three-year period specified in s 23(1) has elapsed, it will have prescribed. This is so even if it was submitted before
the five-year period specified in s 23(3) has passed.
[4]
On the facts before us Grundlingh’s third party claim had not become prescribed at the time
the appellant had submitted his claim as the five-year period specified in s 23(3) had not run its course. And even though Grundlingh
had not yet been treated by the appellant at the time he submitted his claim to the Fund, and could thus not have included the appellant’s
part of the claim at that stage, there was no impediment to his amending the claim to include the appellant’s claim at any
stage before the claim had been finalised. By doing so he merely would have augmented his existing claim for damages.
[5]
Counsel for the Fund contends that the appellant’s claim, based as it is on the same cause
of action as Grundlingh’s, must also comply with the prescription requirements in the Act. Thus, so it is contended, just as
Grundlingh was required to submit his claim to the Fund within three years of the cause of action having arisen, so too was the appellant
as a supplier of medical services. And, the contention continues, because the appellant had not done so his claim had become prescribed.
[6]
The issue before us is whether the appellant’s claim could have become prescribed even though
Grundlingh’s had not. The answer requires a brief examination of s 17(5). It provides as follows:
‘Where a third party is entitled to compensation in terms of this section and has incurred costs in respect of accommodation of himself
or herself or any other person in a hospital or nursing home or the treatment of 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 any 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.’
[7]
The section confers on a supplier a statutory right to recover, directly from the Fund, the costs
of accommodation, treatment, services or goods instead of claiming such costs from the third party. It was enacted for the benefit
of suppliers to ensure that they receive payments made to injured persons who incur hospital and medical expenses in respect of their
injuries. But this right arises only if the third party is entitled to claim the amount as part of his or her compensation from the
Fund. Put another way the right arises only if the third party has a valid and enforceable claim against the Fund and has complied with
the necessary formalities such as submitting a claim in compliance with the prescribed procedure. The supplier’s claim is therefore
dependent upon the third party being able to establish his or her claim. In this sense it may aptly be described as an accessory claim.
[8]
I revert to the facts in this case. Grundlingh submitted his claim to the Fund within the prescribed
three-year period. As such this claim could have become prescribed only five years after the collision. And as I have mentioned,
when the appellant submitted his claim to the Fund Grundlingh’s had not yet been finalised (by judgment or settlement) or become
prescribed. It is not disputed that Grundlingh had incurred the costs of the treatment and that he would have been entitled to include
these costs as part of the claim, as s 17(5) envisages. The only issue thus is whether the claim had become prescribed.
[9]
In my view once it is accepted that Grundlingh’s claim had not become prescribed at the time
the appellant submitted his, the appellant’s accessory claim, being part and parcel of Grundlingh’s, similarly could
not have. Moreover, it is illogical to interpret the section in the way the Fund would have it, as this would effectively negate
the supplier’s right to claim directly from the Fund.
[10]
The following order is made. The appeal is upheld with costs including the costs of two counsel. The
order of the court below is amended to read:
‘The appeal is upheld with costs.’
___________________
A CACHALIA
JUDGE OF APPEAL
CONCUR:
HARMS ADP
LEWIS JA
HEHER JA
HANCKE AJA
SAFLII:
|
Terms of Use
|
Feedback
URL: http://www.saflii.org/za/cases/ZASCA/2007/64.html
.RTF of original document