A W v MEC for Health - Gauteng (26601/2015) [2019] ZAGPJHC 149 (14 May 2019)

80 Reportability
Civil Procedure
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Brief Summary

Civil Procedure — Amendment of pleadings — Application to amend particulars of claim — Plaintiff sought to introduce new grounds of negligence against the defendant, alleging delays in treatment leading to amputation — Defendant objected, claiming introduction of a new cause of action without requisite notice — Court held that proposed amendment did not introduce a new cause of action but rather alternative grounds of negligence — Condonation for late filing of the application granted as no prejudice to the defendant was established.

Comprehensive Summary

Summary of Judgment


1. Introduction


The proceedings were an opposed interlocutory application in the High Court (Gauteng Local Division, Johannesburg) in which the plaintiff sought leave to amend his particulars of claim in terms of Rule 28(4) of the Uniform Rules of Court, together with an application for condonation for the late filing of the amendment application.


The parties were A W as plaintiff and the MEC for Health – Gauteng as defendant. The interlocutory dispute arose within a pending trial action in which the plaintiff claims damages arising from alleged negligence by nursing and medical staff employed by, or acting for, the defendant.


Procedurally, the plaintiff had already instituted action and served particulars of claim. He then delivered a notice of amendment dated 26 November 2018, but brought the formal application outside the prescribed time limits. The plaintiff attributed the delay to an inability to locate the court file, which prevented enrolment by the Registrar. The defendant did not oppose condonation, but opposed the amendment itself.


The underlying subject-matter of the dispute concerned whether the proposed pleading changes constituted the introduction of a new cause of action (with consequences for statutory notice and prescription) or merely an elaboration of existing allegations of negligence relating to the plaintiff’s treatment at Hillbrow Community Health Centre and Charlotte Maxeke Johannesburg Academic Hospital, culminating in a below-knee amputation.


2. Material Facts


It was common cause that the plaintiff’s main action is a medical-negligence damages claim arising from treatment at a clinic and hospital falling under the defendant’s responsibility, and that the plaintiff alleges that negligent diagnosis and treatment led to serious complications and ultimately a below-knee amputation.


The plaintiff’s original particulars of claim pleaded, in substance, that he was examined at the hospital on 6 September 2014, that a diagnosis of compartment syndrome of the right lower leg was made, and that he underwent a fasciotomy under general anaesthetic on 9 September 2014. The pleaded sequelae included further procedures to debride soft tissue, and ultimately an amputation on 11 May 2015. Negligence was pleaded with reference to, among other things, the clinic’s application of a posterior plaster slab allegedly without proper allowance for swelling, and the hospital’s alleged failure to appreciate the urgency of surgery, delay in performing fasciotomy, and failure to take appropriate measures to prevent degeneration.


The proposed amendment sought to insert an alternative set of allegations, including that before transfer the clinic diagnosed possible cellulitis or an open fracture, that at the hospital there was an assessment of possible cellulitis with thrombophlebitis, and that the plan included blood tests, X-rays and doppler studies. It further alleged that a registrar ordered intravenous antibiotics and admission for theatre for incision and drainage, that the plaintiff signed consent to operate on 6 September 2014, but that the incision and drainage was performed only on 8 September 2014, and that this negligent delay resulted in necrotizing fasciitis/pyomyositis, ultimately leading to the same amputation.


On the procedural explanation for lateness, the court accepted that the plaintiff’s attorneys could not locate the court file and that this prevented enrolment; the defendant did not contest this and did not allege prejudice arising from the late launching of the application.


The defendant’s opposition was framed around the characterisation of the amendment. The defendant contended that the amendment introduced a new cause of action or new issue, for which there was allegedly no compliant notice under section 3 of the relevant Act, and which was allegedly prescribed. The defendant also alleged prejudice in that it would have been entitled to a statutory investigation period and had already briefed experts on the existing claim formulation.


3. Legal Issues


The central legal questions the court was required to determine were whether the proposed amendment should be permitted in the exercise of the court’s discretion under the rules governing amendments, and specifically whether the proposed new paragraph constituted the introduction of a new cause of action (or merely additional or alternative grounds of negligence within the existing cause of action).


Flowing from that characterisation, the court had to consider whether the defendant’s objections based on section 3 notice requirements under the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002, and prescription, were engaged at all. The court also had to consider whether the defendant would suffer prejudice that could not be cured by an appropriate costs order, and whether condonation for late filing should be granted.


The dispute largely concerned the application of legal principles to pleaded facts (what constitutes a cause of action for amendment purposes; whether the amendment changes the facta probanda), together with a discretionary evaluation of potential prejudice and the fairness of allowing the amendment.


4. Court’s Reasoning


The court approached the amendment application by applying the established principles governing amendments. It reiterated that a litigant may seek to amend pleadings at any stage before judgment and that the court retains a discretion to grant or refuse an amendment. The controlling approach, drawn from authority, was that amendments should generally be allowed unless sought in bad faith or unless they would occasion an injustice not remediable by costs. The court treated these principles as applying equally where an amendment is alleged to introduce a new cause of action.


To deal with the defendant’s “new cause of action” objection, the court considered the concept of a cause of action with reference to authority explaining that the enquiry turns on the material facts that must be proved (the facta probanda) to succeed. Where the facta probanda are different, the causes of action are different. The court related this to the Aquilian action for bodily injuries, identifying the core ingredients as wrongful conduct causing bodily injury, fault, and patrimonial loss caused by the injury.


On the facts pleaded in the main action, the court characterised the plaintiff’s cause of action as one in which he alleged an incorrect diagnosis and delays and deficiencies in treatment that failed to meet the required medical standard, with the ultimate consequence of amputation. The court found that this cause of action was already reflected both in the plaintiff’s statutory notice to institute proceedings and in the particulars of claim.


Against that background, the court reasoned that the proposed amendment did not substitute a different claim or introduce a materially distinct delictual foundation. Rather, it introduced alternative grounds of negligence (including a different clinical pathway involving incision and drainage and a different description of complications) within the same overall delictual claim about negligent treatment leading to the same adverse outcome. On that basis, the court concluded that the plaintiff’s cause of action remained the same, and that the amendment was therefore permissible in principle.


Because the court found that no new cause of action was introduced, it held that the defendant’s complaints regarding the absence of a new section 3 notice did not arise. The existing notice remained valid for the cause of action as maintained. For the same reason, the prescription objection framed as prescription of a “new cause of action” became nugatory in the court’s analysis.


The court then considered prejudice. It reasoned that the asserted statutory prejudice about being deprived of a 30-day investigation period did not arise because no new notice was required. As to the defendant’s complaint that experts had already been briefed, the court accepted that the amendment might require further expert input, but held that this was the kind of prejudice that could be addressed by a costs order. The court also took into account that the trial was set down for mid-2020, leaving sufficient time for experts to revise reports if necessary.


Regarding condonation for the late filing of the amendment application, the court accepted that good cause had been shown for the delay and that the defendant would suffer no prejudice if condonation were granted. Condonation was therefore granted.


Finally, the court dealt with an attempt in the defendant’s answering affidavit to obtain an order relating to wasted costs of a previously postponed trial, which had been reserved by the Deputy Judge President. The court considered this request inappropriate, reasoning that the proper time to determine those reserved costs would be at the upcoming trial and that the answering affidavit was not the proper procedural vehicle to seek that relief absent an appropriate application.


5. Outcome and Relief


The court granted condonation for the late filing of the amendment application.


The court granted the amendment application and gave the plaintiff leave to amend his particulars of claim in accordance with the notice of amendment dated 26 November 2018.


The defendant was ordered to pay the costs of the application on an opposed basis.


The costs of the previously postponed trial remained reserved.


Cases Cited


Moolman v Estate Moolman 1927 CPD 27.


MacDonald, Forman & Co v Van Aswegen 1963 (2) SA 150 (O).


De Kock v Middelhoven 2018 (3) SA 180 (GP).


Government of the Republic of South Africa v Ngubane 1972 (2) SA 601 (A).


Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A).


Legislation Cited


Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 (section 3).


Rules of Court Cited


Uniform Rules of Court, Rule 28(4).


Held


The court held that the proposed amendment did not introduce a new cause of action but merely pleaded alternative grounds of negligence within the existing delictual claim arising from alleged negligent medical treatment culminating in amputation. Consequently, objections premised on the need for a new statutory notice under section 3 of Act 40 of 2002 and on prescription of a “new” claim were not sustained. Any remaining prejudice, including the need for expert revisions, was capable of being addressed by an appropriate costs order given the timeline to trial.


LEGAL PRINCIPLES


A court has a discretion to permit amendments to pleadings at any stage before judgment, and the general approach is to allow amendments unless they are sought in bad faith or would cause an injustice that cannot be cured by an order for costs.


Whether an amendment introduces a new cause of action is determined by examining the material facts that must be proved to succeed (the facta probanda). If the facta probanda differ materially, the cause of action is different; if the amendment merely adds or reframes allegations within the same essential delictual foundation, it does not constitute a new cause of action.


Where an amendment does not introduce a new cause of action, objections based on a failure to deliver a fresh statutory notice (under section 3 of Act 40 of 2002) and objections based on prescription of a “new” claim do not arise on that premise.


Prejudice arising from the need to adjust litigation preparation, including revisiting expert reports, is ordinarily remediable by a costs order, particularly where the procedural timetable allows adequate time to meet the amended case.

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[2019] ZAGPJHC 149
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A W v MEC for Health - Gauteng (26601/2015) [2019] ZAGPJHC 149 (14 May 2019)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO:  26601/2015
In the matter
between:
A
W
Plaintiff
and
MEC
FOR HEALTH –
GAUTENG
Defendant
J U D G M E N T
MODIBA,
J
:
[1]
This is an opposed
interlocutory application to amend the plaintiff’s particulars
of claim, brought in terms of Rule 28(4)
of the Uniform Rules of
Court.
[2]
The genesis of the
application is a trial action in which the plaintiff sues the
defendant for damages arising out of the alleged
negligence of the
defendant’s nursing and medical staff when they treated the
plaintiff at Hillbrow Community Health Centre
(“
the
clinic
”) and
Charlotte Maxeke Johannesburg Academic Hospital (“
the
hospital
”).
[3]
The plaintiff also seeks
condonation for the late filing of this application. He could not
bring it within the prescribed time frame
because his attorneys could
not locate the court file, without which the Registrar would not
enrol the application.
[4]
The defendant does not
oppose the condonation application.  I am satisfied that the
plaintiff has shown good cause for the
late filing of the application
and that the defendant stands to suffer no prejudice if it is
granted. It therefore stands to be
granted.
[5]
In paragraphs 11 to 13 of
the original particulars of claim, the plaintiff sets out the basis
on which he alleges that the defendant’s
nursing and medical
staff were negligent.  It is pertinent that I quote these
paragraphs:
“
11. In furtherance of the
terms of the oral agreement as aforesaid, alternatively pursuant to a
further oral agreement concluded
on the same terms and conditions
between the Plaintiff and the Defendant, at Parktown, Johannesburg on
the 6
th
of September 2014:
(a)
the Plaintiff was
examined by the Defendant’s personnel at the hospital on the
6
th
of September 2014;
(b)
a diagnosis was
made by the Defendant’s personnel that the Plaintiff had
developed a compartment syndrome of the right lower
leg and would
have to undergo a fasciotomy of the right lower limb;
(c)
the Plaintiff was
admitted to the hospital on the 6
th
of September 2014 for that purpose; and
(d)
the Plaintiff
underwent the fasciotomy, under general anaesthetic, on the 9
th
of September 2014.
12. Pursuant to, and as a
consequence of the Defendant’s treatment of the Plaintiff in
both the clinic and the hospital as
aforesaid:
(a) the Plaintiff developed
compartment syndrome of his right lower leg;
(b) had to undergo a number of
further surgical procedures to debride the soft tissue around his
right lower leg in an endeavour
to preserve the integrity thereof;
and
(c) ultimately had to undergo a
below knee amputation of his right lower leg on the 11
th
of May 2015.
13. In treating the Plaintiff as
aforesaid, the Defendant and/or the Defendant’s personnel acted
in breach of the oral agreement
and/or agreements, alternatively
their duty of care, as aforesaid in that they were negligent in one
or more of the following respects:
(a) the Defendant’s personnel
at the clinic applied the below-knee posterior plaster slab to the
Plaintiff’s right lower
leg in such a manner so as to not allow
for any swelling in the lower leg after the application thereof;
(b) the Defendant’s personnel
at the clinic applied the below-knee posterior plaster slab to the
Plaintiff’s right lower
leg in a manner that was inappropriate
in the circumstances and not in accordance with accepted standard
medical practice;
(c) the Defendant’s personnel
at the clinic failed to have any, or sufficient regard to the fact
that fractures of the ankle
or the lower limb are associated with
compartment syndrome and to have regard to this fact when applying
the below-knee posterior
slab to the Plaintiff’s right lower
leg;
(d) the Defendant’s personnel
at the hospital, upon examining the Plaintiff, failed to appreciate
or diagnose that the Plaintiff
required immediate surgery to reduce
the compartment pressure in his right lower leg;
(e) the Defendant’s personnel
at the hospital, upon examining the Plaintiff, failed to direct that
the Plaintiff undergo immediate
surgery, in the form of a fasciotomy,
in order to reduce the compartment pressure in his right lower leg;
(f) the Defendant’s personnel
at the hospital, failed to immediate take any, alternatively
appropriate measures to prevent
the further degeneration of the soft
tissue in the Plaintiff’s right lower leg upon him being
admitted to the hospital on
the 6
th
of
September 2014;
(g) the Defendant’s personnel
at the hospital delayed in performing the fasciotomy upon the
Plaintiff’s right lower
leg in circumstances when it was
inappropriate and not in accordance with standard medical practice to
do so;
(h) the Defendant’s personnel
at both the clinic and the hospital failed to provide the Plaintiff
with appropriate or proper
medical treatment as would reasonably be
required in the circumstances;
(i) the Defendant’s personnel
at both the clinic and the hospital failed to take such steps as were
reasonably necessary to
ensure the Plaintiff’s best care and
well-being; and
(j)
the Defendant’s personnel at both the clinic and the hospital
failed to exercise such care and skill as was reasonably
required of
them in the circumstances.
”
[6]
The plaintiff seeks to
introduce the following paragraph to its particulars of claim, after
paragraph 13:
“
Alternatively to paragraphs
11 to 13 above the Plaintiff pleads inter alia that:-
(a)
prior to transfer
to the hospital on 06 September 2014, the clinic made a diagnosis of
possible cellulitis or an open fracture of
the right ankle;
(b)
the examination by
the Defendant’s servants at the hospital revealed that the
Plaintiff’s right calf was enlarged, right
leg was warm,
tender, swollen with a small laceration on the medial aspect of the
ankle;
(c)
the Defendant’s
servants at the hospital made an assessment of possible cellulitis
with thrombophlebitis of the right lower
limb;
(d)
the plan following
the assessment referred to above was to do bloods, x-rays and dopier;
(e)
he was seen by the
Registrar of the hospital (on 06 September 2014) who ordered that he
be given intravenous antibiotics and to
admit him on 06 September
2014 to theatre for incision and drainage;
(f)
as a result of the
aforesaid, he duly signed a consent to operate on 06 September 2014
at 14h46;
(g)
the incision and
drainage in theatre was only carried out two (2) days later on the 08
September 2014;
(h)
as a result of the
negligent delay in carrying out the incision and drainage as
aforementioned, the Plaintiff developed necrotizing
fasclitis
pyomyositis which ultimately resulted in the below knee amputation of
his right lower leg on 11 May 2015.
”
[7]
The defendant objects to
the proposed amendment on the following grounds:
7.1 The amendment introduces a new
cause of action, alternatively a new issue against the defendant:
7.1.1 in respect of which he has not
given the defendant the requisite notice in terms of section 3 of the
Institution of Legal
Proceedings Against Certain Organs of State Act
40 of 2002 (“
the Act
”);
7.1.2 which has prescribed.
7.2 The proposed amendment, if granted
stands to cause the following prejudice to the defendant:
7.2.1 the Act allows the defendant a
period of 30 days within which to investigate the claim;
7.2.2 the defendant has already
briefed its experts on the basis of the plaintiff’s current
claim. The proposed amendments
would require the experts to amend
their opinion.
[8]
When
adjudicating the dispute between the parties, I am guided by the
following legal principles, set out in the ancient
Moolman
v Estate Moolman
[1]
judgment:
8.1 it is trite that a litigant may
amend his or her pleadings at any stage of the proceedings before
judgment;
8.2 a court hearing an application for
an amendment has a discretion to grant it.  Such discretion
ought to be exercised judiciously.
8.3
the general approach to amendments is that they should be allowed,
unless the amendment application is made in bad faith and
would cause
an injustice which cannot be compensated with a costs order. This
principle equally applies to an amendment which introduces
a new
cause of action.
[2]
[9]
In
De
Kock v Middelhoven
[3]
,
when discussing what constitutes a cause of action, the court per
Mabuse J had this to say at paragraphs 9 to 12:
“
[9]
Accordingly, whether or not something is a cause of action is
determined by the essential ingredients of such a cause of action
or,
to put it simply, by the material characteristics.
[10]
According to
Government
of the Republic of South Africa v Ngubane
1972
(2) SA 601
(A) at
606E
– H, in the case of an Aquilian action for damages for bodily
injuries, the basic ingredients of the plaintiff's cause
of action
are:
(a)
a
wrongful act by the defendant causing bodily injury;
(b)
accompanied
by fault, in the case of
culpa
or dolus
,
on the part of the defendant; and
(c)
damnum,
in other words, loss to the plaintiff's patrimony, caused by the
bodily injury.
[11]
In
Evins v Shield Insurance Co Ltd
supra [22] at
839A the court, referring to the abovementioned ingredients of an
Aquilian action, stated that:
'The
material facts which must be proved in order to enable the plaintiff
to sue (or
facta probanda
) would relate to those three
basic ingredients and upon the occurrence of these facts the cause of
action arises.'
[12]
Therefore, in order to establish whether the causes of action are
similar or different, one merely has to look at the facts
that a
litigant has to prove in order to succeed with his or her claim.
Once the facta probanda are different, then the causes
of action can
never be the same. This simply means that the causes of action are
different.”
[10] The plaintiff’s cause of
action is as surmised in paragraph 2 above. He alleges that he was
incorrectly diagnosed, there
was a delay in administering the
appropriate treatment and when he was treated, the treatment did not
comply with the requisite
medical standards, resulting in the below
the knee amputation of injured leg. This cause of action is set out
in both the notice
to institute legal proceedings and the particulars
of claim. The grounds of negligence he seeks to rely on are set out
in paragraphs
11 to 13 of the particulars of claim. The plaintiff’s
proposed amendment merely introduces grounds of negligence in the
alternative
to those set out in the original particulars of claim,
nothing more. Against such an amendment, there is no prohibition. The
plaintiff’s
cause of action remains as set out in the notice to
institute legal proceedings and in the original particulars of claim.
[11] Therefore, the prejudice the
defendant complains of if the proposed amendment is allowed largely
does not arise. Where it does
arise, it may be compensation with a
cost order. The notice to institute legal proceedings hitherto issued
by the plaintiff prior
to issuing summons, remains valid. The need
for the plaintiff to serve a new notice does not arise. Therefore the
defendant’s
complaint in respect of prejudice resulting from
the time the new notice would be served does not arise.
[12] Similarly, the question of
prescription in respect of a new cause of action becomes nugatory.
[13] Any other prejudice complained
of, such as the need for the parties’ experts to revise their
reports, may be remedied
by a cost order.  The trial is set down
for mid-2020. The parties’ experts have more than sufficient
time to revise
their expert reports should the amendment render the
revision necessary.
[14] Having judiciously considered the
proposed amendment against the cause of action relied on by the
plaintiff as set out in the
notice to institute legal proceedings and
in paragraphs 3 to 10 of the particulars of claim as well as the
defendant’s grounds
of opposition, I find that the plaintiff
has made out a proper case for the amendment application to succeed.
[15] In its answering affidavit, the
respondent seeks an order against the plaintiff in respect of the
wasted costs of a previously
postponed trial, which were reserved by
the Deputy Judge President Mojapelo.
[16] This request is inappropriate for
the following reasons:
16.1 the appropriate stage to
determine such costs is at the upcoming trial;
16.2 the defendant’s answering
affidavit is an inappropriate document to seek such an order.
At the very least, the
defendant ought to have brought an application
for such relief.
[17] Therefore the defendant’s
request for these ill-conceived.
[18] In the premises, the following
order is made:
ORDER
1.
Condonation for the late
filing of the amendment application is granted.
2.
The application succeeds.
3.
The plaintiff is granted
leave to amend his particulars of claim in accordance with the notice
of amendment dated 26 November 2018.
4.
The defendant is ordered
to pay the costs of this application on an opposed basis.
5.
The costs of the
previously postponed trial remain reserved.
________________________________________
L.T. MODIBA
JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION,
JOHANNESBURG
APPEARANCES
Counsel for the Plaintiff: Mr M.
Sibisi
Instructed by: Tomlinson Mnguni James
Attorneys
Counsel for the Defendant: Ms J.
Maluleke
Instructed by: Mncedis Ndlovu &
Sedumedi Attorneys
Date of hearing: 07 May 2019
Date of judgment: 14 May 2019
[1]
1927 CPD 27
at page 29
[2]
See
MacDonald,
Forman & Co v Van Aswegen
1963 (2) SA 150
(O) at 153D.
[3]
2018 (3) SA 180
(GP)

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