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[2018] ZAWCHC 73
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A.C v Greeff (16969/2011) [2018] ZAWCHC 73 (12 June 2018)
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IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
Case
Number: 16969/2011
In
the matter between:
A
C
Plaintiff
and
DR
ANNALIEN
GREEFF
Defendant
Andrews
AJ
[1]
In this action the Plaintiff seeks to recover damages from the
Defendant (a general medical practitioner) pursuant to having
suffered a stroke on 16 October 2008. The Plaintiff alleges that the
Defendant was negligent in that she failed to properly diagnose
and
treat the Plaintiff’s stroke syndrome. In the Plaintiff’s
second claim, he seeks to recover damages from the Defendant
for
failing to properly treat the unitary tract condition he presented
with on 17 October 2010.
[2]
On 14 August 2017, the parties respective expert witnesses (both
neurologists), Dr Kesler for the Plaintiff and Dr Opperman
for the
Defendant compiled a joint minute in terms whereof the following was
agreed upon by them:
‘
A C presented
to the Emergency Unit at Hermanus Mediclinic in the early hours of
the morning of 16 August 2008. The stroke manifested
as a dense right
hemiplegia and aphasia.
There is no indicatio
n
from the notes that Dr A Greef, the attending doctor on duty, made
a diagnosis of stroke.
Dr Opperman was
informed that by the time the patient arrived at hospital, the window
of opportunity for the use of acute thrombolytic
therapy was passed.
Dr Kessler was
informed that the patient was admitted within three hours of the
onset of the stroke and should therefore have been
considered for
acute thromboylic therapy.’
[3]
During the course of the Rule 37(8) pre-trial hearing, it was
recorded by agreement that the issues of merits and quantum would
be
separated pursuant to the provisions of Rule 33(4) of the Uniform
Rules of Court. The Minute recorded that ‘
[t]he parties
agreed to request that the merits be determined first and quantum
stand over for later determination.’
The matter was
declared trial ready on 20 November 2017. A trial date was
allocated for the hearing of this matter on 5 June
2018. An
application to compel was brought by the Defendant pursuant to the
Defendant’s request for further particulars,
and was set down
for argument in the third division on 29 May 2018, which application
subsequently was postponed, to be heard by
the trial Judge.
[4]
Pursuant to a further pre-trial conference held on Friday 25 May
2018, it became evident that there was a difference of opinion
between the parties concerning the ambit of the separation that was
previously agreed upon, as the Minute did not define what was
meant
by “the merits”. The Judge President was approached
to allocate a Judge for the purposes of resolving the
issue of
separation. The issue of separation was argued on 5 June 2018.
Adv JJ Botha SC appeared for the Plaintiff and Adv
A La Grange SC
appeared for the Defendant.
Issues
in dispute
[5]
The Plaintiff contended that the agreement regarding the separation
of issues would be limited to the factual issues as reflected
in the
joint minute of the experts, more specifically, whether Plaintiff was
attended to by the Defendant within the window of
opportunity for the
use of acute thrombolytic therapy.
[6]
The Defendant contended that in the context of a delictual claim the
notion of “merits” connotes “liability”
and
that in order to render the second defendant liable in delict the
plaintiff has to prove all the elements, namely:
(a) The conduct of the
defendant of which he complained;
(b) The wrongfulness of
that conduct;
(c) Fault on the part of
the defendant (in the form of negligence);
(d) That the plaintiff
had suffered harm;
(e) A causal connection
between such harm and the defendant’s conduct that is the
subject of the complaint.
[7]
The Defendant submitted that the separation as recorded means that
all these issues are to be addressed during the trial, and
that it
was only the issue of the quantification of the harm, or damages that
would stand over for later determination.
Legal
Principals
[8]
Counsel for
the Plaintiff contended that the purpose of Rule 33(4)
[1]
is to determine the Plaintiff’s claim without the costs and
delays of a full trial. It was further submitted that the entitlement
to seek the separation of issues was created in the Rules so that a
factual issue can be determined which can give direction to
the rest
of the case and, in particular, to obviate the leading of evidence.
It was also argued that the procedure is aimed at
facilitating the
convenient and expeditious disposal of litigation.
[2]
[9]
In
Denel
(Edms) Bpk v Vorster
[3]
Nugent JA remarked as follows concerning the separation of issues
generally:
‘
Rule 33 (4) of
the Uniform Rules – which entitles a Court to try issues
separately in appropriate circumstances – is
aimed at
facilitating the convenient and expeditious disposal of litigation.
It should not be presumed that that result always
achieved by
separating the issues. In many cases, once properly considered, the
issues will be found to be inextricably linked,
even though, at first
sight, they might appear to be discrete. And even where the issues
are discrete, the expeditious disposal
of the litigation is often
best served by ventilating all the issues at one hearing,
particularly where there is more than one
issue that might be readily
dispositive of the matter. It is only after careful thought has been
given to the anticipated course
of the litigation as a whole that it
will be possible properly to determine whether it is convenient to
try an issue separately.’
[10]
The approach to be adopted in relation to the ambit of the terms,
merits and quantum was clarified in
Denel
(supra).
In this regard it was stated:
‘
But, where the
trial Court is satisfied that it is proper to make such an order –
and, in all cases, it must be so satisfied
before it does so –
it is the duty of that Court to ensure that the issue to be tried are
clearly circumscribed in its order
so as to avoid confusion. The
ambit of terms like “merits” and the “quantum”
is often thought by all the
parties to be self-evident at the outset
of a trial, but, in my experience, it is only in the simplest of
cases that the initial
consensus survives. Both when making rulings
in terms of Rule 33(4) and when issuing its orders, a trial Court
should ensure that
the issues are circumscribed with clarity and
precision.’
[11]
Counsel for
the Defendant highlighted that the SCA has expressed criticism
against courts making generalised and non-specific orders
in relation
to the issue of separation.
[4]
In amplification, reference was made to
Odinfin
(Pty) Ltd v Reynecke
it was stated that: ‘
Judges
should not approve a separation just because the parties have agreed
to do so. And if a separation is approved, the court
must ensure that
its terms are clear
.’
[5]
[12]
This matter appears to have fallen into this mould and ambit, where
the separation as agreed upon by the parties was approved
without
ensuring that its terms were clear. Additionally, the parties were
not
ad idem
in relation to the understanding of the
term “merits”.
[13]
The Plaintiff contented that the factual issue (as formulated by the
experts in their joint minute) can conveniently be decided
separately. If that issue is decided against the Plaintiff, it will
dispose of any further litigation according to counsel for
the
Plaintiff. It was furthermore, argued that the determination of this
factual issue is aimed at facilitating the expeditious
disposal of
the litigation, which will be convenient to both parties.
Additionally, it was submitted that it would obviate the
leading of
expert evidence, which will involve intricate issues of medical
negligence, and particularly also, the efficacy of the
medical
treatment available. Moreover, it will, according to the Plaintiff,
also obviate the leading of expensive expert evidence
on the issue of
quantum.
[14]
The Defendant on the other hand, contended that this approach cannot
be convenient, nor would it lead to an expeditious disposal
of the
litigation. Moreover, the Defendant submitted that separation on
those limited terms would not have been consented to as
it would
entail that the litigation be compartmentalised and that the court
would be required to adjudicate the matter in a piecemeal
fashion.
Additionally, counsel for the Defendant refuted that it would be
convenient to both parties. It was also contended
that the
approach proposed by the Plaintiff suggests that the Plaintiff has a
measure of doubt in its own case, and falls squarely
within the ambit
of what the
Denel
case warned against. Defendant’s
counsel also highlighted the possibility that there may be as many as
3 to 4 trials, each
having the effect of a final decision which may
be appealed against.
[15]
Furthermore,
the Defendant’s counsel, referring to
Stedall
and Another v Aspeling and Another
[6]
argued
that the Plaintiff would be incorrect in imputing a restricted
meaning to the term “merits”. In this matter Leach
JA
opined that a reference in a pre-trial minute to the effect that the
parties had a delictual claim, agreed to separate “the
merits
and the quantum” meant that the court would be called upon to
determine issues relevant to liability. Counsel for
the Defendant
highlighted that the Supreme Court of Appeal in
Stedall
criticised the court
a
quo
for
regarding negligence as the essential issue that fell to be decided
due to the separation of “merits” and “quantum”.
It was pointed out on appeal that the court
a
quo
had
overlooked the requirement of wrongfulness, which is an essential and
discrete element which has to be established for the delictual
liability to ensue and which also had to be addressed at the merits
stage of the trial.
[16]
MTO
Forestry (Pty) Ltd v Swart NO
[7]
sets out what the Plaintiff would essentially need to prove, In this
regard Leach JA stated:
‘
As the
appellant’s claim is founded in delict, it had to establish
first, the conduct of the respondent of which it complained;
second,
the wrongfulness of that conduct; third, fault on the part of the
respondent (in this case in the form of negligence);
fourth, that it
had suffered harm; and fifth, a causal connection between such harm
and the respondent’s conduct that is
the subject of its
complaint.’
Discussion
[17]
It is clear that this matter involves complex issues of medical
negligence, more specifically the efficacy of the medical treatment
available. A fundamental aspect in deciding the issue of
separation is to consider the pleadings. In this regard, the
Defendant
has disputed all the elements and consequently, the
Plaintiff is called upon to prove the Defendant’s delictual
liability.
[18]
Counsel for
the Defendant highlighted that the facts of this case are similar on
a factual and procedural basis, to that of
Chapeikin
and Another v Mini
[8]
where the Court was called upon to consider a claim based on medical
negligence relating to the alleged failure on the part of
the medical
practitioners to properly and timeously treat the plaintiff’s
stroke. In the
Chapeikin
matter the Plaintiff was faced with the same problems, or constraints
in having to prove the causal effect of the harm that she
has
suffered. It was highlighted by the Defendant’s Counsel
that the
Chapeikin
matter clarified that:
(a) Compensation
can only be paid once proof is furnished concerning the extent to
which a plaintiff such as Mr C will have
been less impaired had the
defendant not acted wrongfully and negligently; but also that
(b) The enquiry as
to the extent to which the plaintiff’s harm would have been
ameliorated or prevented forms part of
the causation enquiry with
which the court is seized as part and parcel of the “merits”
enquiry.
[19]
Counsel for the Defendant argued that the approach which the
Plaintiff is proposing would lend itself to having the matter
heard
in stages, whereby the same witness may have to be recalled. In this
regard, Counsel for the Defendant contended that even
if the
Plaintiff succeeded in proving wrongfulness and negligence, the issue
of causation which lies at the heart of the question
as to whether or
not delictual liability should ensue, would remain unresolved as was
the case in the
Chapeikin
matter. This aspect
would have to be addressed at a second trial, during which, the same
medical experts who were party to
the joint minute would have to
testify. Should the evidence be such, that the finding can be made
that there was indeed a causal
connection, or link between any of the
wrongful, or negligent conduct on the part of the Defendant (which
had been established
at the initial trial), it would be necessary for
a third trial during which the issue of quantification will have to
be addressed.
[20]
It was highlighted by Counsel for the Defendant that the Plaintiff’s
proposal could not be sustained, as the joint minute
on which
Plaintiff places reliance, only deals with the first claim and not
the second claim. Counsel for the Plaintiff did not
deal with this in
any meaningful way in argument and remained steadfast with the
submission that the factual determination should
be made first.
Conclusion
[21]
I am of the view that Plaintiff’s proposed separation lends
itself to this matter being dealt with in a piecemeal fashion.
Whilst
it may be a practical approach and have the potential of
circumventing a protracted trial, this of course can only be
beneficial
if the merits do not favour the Plaintiff. If on the
other hand, the Court finds in favour of the Plaintiff, the
potential
of a protracted trial is indeed a stark reality. In this
regard, I am in agreement with the Defendant’s counsel that any
ruling the Court may make will have the effect of a final order and
could thus be appealed against. Additionally, there are costs
implications as expert witness would potentially have to give
evidence again in relation to the next component of the evidence.
Therefore, to approach a matter such as this one upon a consideration
of convenience cannot hold muster. Litigation in a compartmentalised
approach must be avoided.
[22]
In light of the fact that the parties are unable to resolve the issue
of separation, it would be of pivotal importance to resolve
the
precise ambit of the separation as required by the plethora of case
law earlier referred to. In making this decision
it is apposite
to have regard to the pleadings. In keeping with the
Stedall
decision the issue of “merits” which encompasses all the
elements required to prove delictual liability on the part
of the
defendant will have to be proven by the Plaintiff. As the Defendant
places everything in dispute, it will also be incumbent
on the
Plaintiff to prove “liability” in the context of
delictual claims as defined in the
MTO Forestry
matter.
[23]
In this matter, it is alleged that the Defendant, through her
wrongful and negligent conduct, caused harm in the form of the
sequelae pleaded in the particulars of claim. In the pleadings it is
alleged that had the Defendant acted in accordance with her
duty of
care, and not negligently, and had she timeously diagnosed and
referred the Plaintiff immediately thereafter for the appropriate
treatment and to an appropriate specialist, ‘
he would have
had a more favourable outcome to his stroke than is presently the
case’.
The Defendant’s counsel submitted that
inherent in this allegation is that the Plaintiff would have suffered
some harm as
a result of the stroke, but that the harm he has
suffered cannot be ameliorated to an extent had the Defendant not
acted
wrongfully and negligently. Moreover, the proposed separation
fails to take into account the Plaintiff’s second claim against
the Defendant. Consequently, argument by the Plaintiff that the
proposed separation cannot for practical intents and purposes be
sustained, as the joint minute compiled by the parties’
respective expert witnesses does not deal with the second claim at
all.
[24]
In light
hereof, I agree that a non-specific separation with unclear terms
would attract the same criticism as was the case in
Odinfin
and
Bernet
(supra).
[9]
Therefore,
in keeping with what was stated in
MTO
Foresrty
(supra)
,
it would be prudent for the Plaintiff to initially prove all
the elements of delictual liability, namely:
(a) The conduct of the
defendant of which he complained;
(b) The wrongfulness of
that conduct;
(c) Fault on the part of
the defendant (in the form of negligence);
(d) That he had suffered
harm;
(e) A causal connection
between such harm and the defendant’s conduct that causation.
[25]
I am of the view that only the quantification of the harm that is
proven to be causally linked to the Defendant’s negligence
(if
any) are to stand over for later determination.
Costs
[26]
Counsel for the Plaintiff contended that the factual issue could be
conveniently decided separately, and that the order should
be guided
by the factual issue as formulated in the joint minute, and that the
rest of the proceedings be stayed until the factual
issue has been
disposed of. Counsel for the Defendant argued that the interpretation
by the Plaintiff is spurious and untenable
and should be ordered to
pay the Defendant’s wasted costs occasioned by the
postponement. On the other hand, Counsel for
the Plaintiff argued
that costs should stand over for later determination by the trial
judge.
Trial
Particulars
[27]
This matter
was enrolled for trial on 05 June 2018. Despite the impasse in
relation to the defined terms of the separation,
I am doubtful
whether, this matter would have proceeded in any way, as the
Defendant requested trial particulars in April 2018,
which were not
yet furnished by the Plaintiff despite the Defendant having launched
an application to compel in terms of Rule 30A(2)
in May 2018. The
issue of the lateness of this request, was briefly canvassed with the
parties at the hearing on 5 June 2018, in
light of the fact that at
the rule 37 pre-conference it was decided that the ‘
[r]equest
for Further Trial Particulars will be made by October 2017, and
replies will be filed by 6 November 2017’.
In
this regard,
MEC
for Economic Affairs, Environment and Tourism, Eastern Cape v
Kruizenga
[10]
is
instructive where Cachalia stated as follows:
‘…
the
issue in this matter is whether the appellant may resile from
agreements made by his attorney, without his knowledge, at a rule
37
conference. The judgment does not deal with agreements reached
outside of the context of conducting a trial in the normal course
of
events. The rule was introduced to shorten the length of trials, to
facilitate settlements between the parties, narrow the issues
and to
curb costs. One of the methods the parties use to achieve these
objectives is to make admissions concerning the number of
issues
which pleadings raise. Admissions of fact made at a rule 37
conference, constitute sufficient proof of those fact….
Rule
37 is thus of critical importance in the litigation process. This is
why this court has held that in the absence of special
circumstances
a party is not entitled to resile from an agreement deliberately
reached at a rule 37 conference. And when, as in
this case, the
agreements are confirmed by counsel in open court, the principle
applies with even more force.’
[28]
It was contended by Counsel for Plaintiff that no special
circumstances were made out by the Defendant for the lateness and
or
breach of the pre-trial minute. Plaintiff refused to respond on the
basis of relevance in light of the approach that the factual
issues
are to be dealt with first.
[29]
It is evident that the parties are
ad idem
that the issue of
trial particulars can only be meaningfully addressed once the issue
of separation has been finalised. In this
regard, Counsel for
Defendant indicated that the lateness of the request is capable of
being cured through an application for condonation.
In relation to
the request for trial particulars, the parties have agreed to have
this aspect stand over and have undertaken to
attempt resolving same
between themselves.
[30]
In the circumstances, I am of the view that the trial judge will be
in a better position to make a determination in relation
to costs.
Order
[31]
After hearing counsel on behalf of both parties and having read the
papers filed on record the following directives are made:
(a) In relation to the
precise ambit of the separation of issues in respect of both claims
instituted by the Plaintiff against the
Defendant:
i.
That the parties are to proceed on the merits initially, which
includes all the elements of delictual liability, namely the conduct
of the Defendant of which the Plaintiff complained; the wrongfulness
of that conduct; fault on the part of the Defendant; that
the
Plaintiff had suffered harm; and the causal connection between such
harm and the Defendant’s conduct that is the subject
of the
complaint;
ii. The issue of quantum
is to stand over for later determination.
(b) The Rule 30A(2)
application in relation to trial particulars is to stand over for
later determination.
(c) Costs are to
stand over for later determination.
____________________________
P
ANDREWS, AJ
Acting
Judge of the High Court
[1]
Rule
33(4):
‘
If,
in any pending action, it appears to the court mero motu that there
is a question of law or fact which may conveniently be decided
either
before any evidence is led or separately from any other question in
such manner as it may deem fit and may order that all
further
proceedings be stayed until such question has been disposed of, and
the court shall on application of any party make such
order unless it
appears that the questions cannot conveniently be decided
separately.’
[2]
Erasmus:
Superior Court Practice
at B1-234 and 235.
[3]
2004 (4) SA 481
(SCA) at para 3.
[4]
See
Odinfin
(Pty) Ltd v Reynecke
2018 (1) SA 153
(SCA) at para 11 and
Absa
Bank Ltd v Bernert
2011 (3) SA 74
(SCA) at para 21 ‘
It
is imperative at the start of a trial that there should be clarity
on the questions that the court is being called upon to
answer.
Where issues are to be separated rule 33 (4) requires the court to
make an order to that effect. If for no reason but
to clarify
matters for itself a court that is asked to separate issues must
necessarily apply its mind to whether it is indeed
convenient that
the
y
be
separated, and if so, the questions to be determined must be
expressed in its order with clarity and precision.’
[5]
Ibid at para 11.
[6]
2018 (2) SA 75
(SCA) at para 2: ‘
Despite
this court having regularly warned of the necessity to clearly
identify what issues are to be separately decided under
Uniform Rule
33(4), and to obtain a formal separation order there is nothing in
the record to indicate that this was done. Nor
was any mention made
in the opening of the separation issues. None of this is acceptable
for the reasons set out, inter alia,
in Adlem v Arlow
2013 (3) SA 1
(SCA) para 5 and the authorities there cited
.’
[7]
2017 (5) SA 76
(SCA) at para 12.
[8]
[2016] ZASCA 105.
[9]
See
also
Chapeikin
(supra)
at
para 61: ‘
This
criticism is well founded and applies equally to the approach
adopted by the High Court in this matter. This is illustrated
by the
terms of the order made by the High Court where it finds the
appellants liable, but fails to identify the consequences
for which
they are each liable. Differently put, the court failed to deal with
the extent to which the alleged negligent conduct
of each of the
appellants contributed to Ms Mini’s pleaded sequelae or
deterioration. As indicated, Ms Mini’s complaint
is not that
the appellants caused her stroke, but rather that they failed to
diagnose and treat her condition correctly and refer
her to hospital
for specialist observation, assessment and treatment. In view of the
complaint, it was not sufficient for Ms
Mini to merely prove that
her condition deteriorated as a result of their failure on the
grounds alleged, but it was incumbent
upon her to demonstrate that
diagnosing and treating the disease differently would have prevented
the pleaded sequelae from setting
in…’
[10]
2010 (4) SA 122
(SCA) at para 6.