Thomson v Thomson

• Jurisdiction: South Africa

Thomson v Thomson
2002 (5) SA 541 (W)

2002 (5) SA p541

Citation	2002 (5) SA 541 (W)
Case No	1973/8923
Court	Witwatersrand Local Division
Judge	André Gautschi AJ
Heard	March 14, 2002
Judgment	March 28, 2002
Counsel	F J M Bosman for the applicant.; C J C Nel for the respondent.

Flynote : Sleutelwoorde B

Husband and wife — Divorce — Proprietary rights — Medical aid benefits — Liability of husband in respect of — Decree of divorce stipulating that husband responsible for wife's medical expenses after divorce — Husband remarrying and ex-wife removed from husband's medical aid scheme as dependant — Ex-wife joining own medical aid scheme — Portion of ex-wife's medical expenses paid by ex-wife herself, C rest paid or reimbursed by her medical aid scheme — Whether amounts reimbursed or paid by ex-wife's medical aid scheme falling within expression of 'expenses' as it appearing in decree of divorce — 'Expense' involving both expenditure actually paid out as well as expenditure incurred or for which liability existing — Ex-wife's medical expenses not losing their character as medical expenses because they paid or reimbursed by her medical aid D scheme — As far as husband concerned, payment or reimbursement of medical expenses by medical aid scheme fortuitous as ex-wife not obliged to belong to medical aid scheme of her own — Any 'profit' or 'loss' made by ex-wife when calculating difference between her contributions to medical aid scheme and benefits received for account E of ex-wife as function of her decision to belong to medical aid scheme — Principle of collateral benefits not arising in instant matter as claim based on specific performance in terms of contract and not damages — Husband liable to pay amount of medical expenses claimed. F

Headnote : Kopnota

The applicant husband and respondent wife had been divorced in 1974 after a marriage of 25 years. The decree of divorce issued at the time had incorporated a clause providing that the applicant keep and maintain the respondent at his sole expense on the medical benefits of the medical benefit society of which he was a member or another society which afforded the respondent benefits equal to those she G enjoyed at the time of divorce. Failing that, the decree provided that the applicant would be personally liable for all the respondent's medical expenses. The applicant remarried after the divorce and registered his new wife on his medical aid scheme. The respondent was accordingly removed as a dependant and enjoyed no medical benefits until she requested her employer to register her for the group medical H aid scheme offered by the employer. She remained a member of that scheme until after her retirement. In 1997 the respondent caused a writ of execution to be issued against the applicant in respect of medical expenses incurred amounting to R78 088,68. The applicant applied to have the writ set aside on the basis that the bulk of the medical expenses claimed had been reimbursed by the medical aid scheme to which the respondent belonged. The respondent brought a counter-application to declare the applicant in contempt of the divorce I order and for payment of the amount of R78 088,68 with interest.

It was common cause that the respondent had incurred reasonable and necessary medical expenses in the sum of R78 088,68 of which she had paid R2 945,59 out of her own pocket, the balance having been paid or J

2002 (5) SA p542

reimbursed by the medical aid scheme. The main issue to be considered A was whether the amounts reimbursed or paid by the medical aid scheme fell within the expression 'expenses' as it appeared in the relevant clause of the decree of divorce. The applicant submitted that, because the respondent was not out of pocket to the extent of the amounts reimbursed or paid by the medical aid scheme, those amounts did not constitute 'expenses' as envisaged by the divorce decree. B

Held, that 'expense' meant a disbursement, or that which was expended, laid out or consumed or a cost, outlay or charge. The term therefore involved both expenditure actually paid out as well as expenditure incurred or for which liability existed. (At 545E/F - G.)

Held, further, that it was clear from the relevant clause in the decree that the applicant had an obligation to relieve the respondent of her medical expenses. If he did not keep her as a C dependant on a medical aid scheme, he had personally to pay her medical expenses. The latter obligation could not be confined merely to reimbursing expenses actually paid by the respondent but also had to include expenses incurred, ie where the respondent incurred liability to pay for medical services or supplies. Medical expenses paid or reimbursed by a medical aid scheme fell within this D category because if those expenses were, for whatever reason, not paid by the medical aid scheme, the patient, ie the respondent, would remain liable to the medical supplier or practitioner in question. The respondent's medical expenses did not lose their character as medical expenses because they were paid or reimbursed by her medical aid scheme. (At 545G/H - H and 545H/I - 546A.) E

Held, further, that, as far as the applicant was concerned, the payment or reimbursement of medical expenses by the medical aid scheme was fortuitous. The respondent had not been obliged to belong to a medical aid scheme of her own. Just as the applicant could not refuse to reimburse the respondent's medical expenses where a friend of the respondent had, gratuitously, reimbursed those expenses to her, so too he could not rely on the fact that the F respondent had, at her own expense, joined a medical aid scheme which had reimbursed the bulk of the medical expenses to her to avoid his obligation. (At 546A/B - C/D.)

Held, further, that the applicant's submission that the respondent would receive double compensation should she succeed in the application did not withstand scrutiny. In order to obtain payment from the medical aid scheme, the respondent had to make G contributions thereto, which totalled at the date of the application about R46 000. While it may be that the benefits exceeded the contributions, the contributions could also have exceeded the benefits. If the contributions were less than the benefits, there would be a 'profit' to the respondent after the applicant had reimbursed all the expenses to her, if not, there would be a 'loss' to her. This 'profit' or 'loss' was for the respondent's account and was a H function of the decision she had made when she chose to belong to the medical aid scheme. (At 546C/D - E/F.)

Held, further, that the principle of collateral benefits did not arise in the present matter. The principle has not been applied in the context of a claim for specific performance because it is conceptually inappropriate. In a claim for damages, the enquiry was I into the loss suffered by the plaintiff and it was logical that any benefit gained by the plaintiff had to be examined to see whether it reduced the loss for which compensation was sought. On the other hand, in the case of specific performance, the defendant bound himself by contract to perform an obligation. That performance could not be...