Insurers dealing with and defending personal injury claims under a liability policy should bear in mind the general principles regarding claims for damages in those cases.

The plaintiff who claims damages for the cost of future medical expenses bears the onus of proving the damages claimed and that the damages claim is reasonable. Generally it will be accepted that the costs of the services offered in the private healthcare sector will be reasonable.

A defendant may adduce evidence to show that the expenses claimed are not reasonable, based on the availability of the same medical services in the public sector at no or lesser cost to the plaintiff. That defence is not limited to medical negligence cases. Any defendant can mount a defence based on evidence that the future medical services the plaintiff needs are available at the same or higher standard from a public sector source at less or no cost to the plaintiff. Where it can be established on the probabilities that those medical services are so available to the plaintiff from the public healthcare sector, the plaintiff will not have to suffer the patrimonial loss claimed in future.

This is all in accordance with our existing common law.

The defendant may either plead that this element of the claim must be dismissed or reduced.

These principles were discussed in the recent judgment of MSM v MEC Gauteng Provincial Government which discusses the case in that regard including the judgment of Ngubane v The South African Transport Services.