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[2017] ZAFSHC 109
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Louw v Grobler and Another (3074/2016) [2017] ZAFSHC 109 (1 June 2017)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No.: 3074/2016
In
the matter between:
TILANA ALIDA
LOUW
Plaintiff
and
STEPHEN PAUL
GROBLER
1
st
Defendant
NETCARE UNIVERSITAS
HOSPITAL
2
nd
Defendant
CORAM:
HEFER, AJ
JUDGMENT:
HEFER, AJ
HEARD
ON:
12
MAY 2017
DELIVERED
ON:
1
JUNE 2017
[1]
The claim by the Plaintiff, against the First Defendant is based on
alleged incidents which occurred during 1 April 2005 to
7 April 2015
during which the First Defendant allegedly, continually and with
intent to injure the Plaintiff verbally abused the
Plaintiff in the
Universitas Private Hospital, Bloemfontein’s operating room by
hurling profanities, insults, blasphemous
language and obscenities at
the Plaintiff in the presence of operating theatre staff. It is
alleged in particular that during April
2014, the First Defendant, in
a bout of uncontrolled rage, threatened and intimidated the Plaintiff
and hurled profanities, insults,
obscenities and blasphemous language
at the Plaintiff when she sought to protect the interest of a
patient. It is further alleged
that as a cumulative result of the
First Defendant’s conduct, the Plaintiff suffered damages in a
certain amount of money.
[2]
As far as the Second Defendant is concerned, the Plaintiff alleges
that in regards to the incident(s) referred to, the Second
Defendant
breached its legal duty it owed towards the Plaintiff to:
2.1 create a work
environment free from verbal abuse and intimidation; and
2.2 to take
reasonable care for the Plaintiff’s safety which included a
duty to protect her from psychological harm.
[3]
The Second Defendant raised an exception in terms of Rule 23(1)
against the Plaintiff’s particulars of claim on the basis
that
it lacks averments which are necessary to sustain a cause of action
against the Second Defendant, alternatively, are vague
and
embarrassing.
[4]
As far as the first cause of complaint is concerned, the Plaintiff,
according to the Second Defendant, in the first instance
failed to
plead a basis for vicarious liability on the part of the Second
Defendant in respect of the alleged unlawful conduct
on the part of
the First Defendant. During argument of the matter, however,
Mr
Prinsloo,
on
behalf of Second Defendant, did not pursue this point any further. As
far as the first ground of complaint is concerned, the
Second
Defendant’s exception is further based on the ground that no
allegation is made that the Second Defendant was at fault
in failing
to come to the Plaintiff’s assistance during the incidents
referred to and that no culpability is therefore demonstrated
on the
part of the Second Defendant. The Second Defendant contends that the
Plaintiff failed to establish a claim against the Second
Defendant
founded in delict.
[5]
As far as the second ground of exception is concerned, the Second
Defendant contends that the Plaintiff pleads that during the
period 1
April 2005 to 7 April 2015, being a period of approximately ten
years, the First Defendant verbally abused the Plaintiff.
The
Plaintiff then also refers to a specific incident that occurred
during or about April 2014. In the premises, the formulation
of the
relevant paragraphs renders, according to the Second Defendant,
Plaintiff’s particulars of claim vague and embarrassing.
[6]
In order to disclose a cause of action, the Plaintiff’s
pleading must set out every material fact which would be necessary
for the Plaintiff to prove if traversed, in order to support his
right to judgment of the Court. This means every fact which is
necessary to be proved. In
McKelvey
v Cowan N.O.
19
80
(4) SA 525
Z D - E, Beadle, AJ said as follows:
“
It is the first principle in
dealing with matters of exception that, if evidence can be led which
can disclose a cause of action
alleged in the pleading, that
particular pleading is not excipiable. A pleading is only excipiable
on the basis that no possible
evidence led on the pleadings can
disclose a cause of action.”
[7]
The excipient has a duty to persuade the Court that upon every
interpretation which a pleading can reasonably bear, no cause
of
action or defence is disclosed. (See:
Francis
v Sharpe
2004 (3) SA 230
(C) at 233.
[8]
The Plaintiff’s claim against the Second Defendant is based
upon the breach of a duty of care which it owed towards the
Plaintiff
as an employee of the Second Defendant. In this regard
Mr
Van Aswegen
,
on behalf of the Plaintiff, referred me to the matter of
Minister
of Police v Ewels
1975 (3) SA 590
A where in particular, at p. 597 A – B in
regards to an omission to act, the following was said:
“
Om te bepaal of daar
onregmatigheid
is, gaan dit in gegewe geval van late, dus nie oor die gebruiklike
‘nalatigheid’ van die
bonus
paterfamilias
nie, maar oor
die vraag of, na aanleiding van al die feite, daar ʼn regsplig
was om op te tree.” (My emphasis).
[9]
The importance of this passage is that it deals with the requirement
of wrongfulness in regard to delict. For liability to an
act by a
party which causes harm to another party is in itself insufficient to
give rise to delictual liability. For liability
to follow, prejudice
must be caused in a wrongful, that is, a legally reprehensible or
unreasonable manner. If wrongfulness
is absent, a Defendant may
not be held liable. (See
Law
of Delict
,
Neethling - Potgieter - Visser, 5
th
Edition, p. 31). This is the one requirement of a delict.
[10]
It is further accepted that fault (
culpa
in a
wide sense) is a general requirement for delictual liability.
In practice two main forms of fault are recognised:
Intention
(
dolus)
and negligence (
culpa)
in a narrow sense. (See:
Law
of Delict
supra
.
P. 109). In the case of negligence, a person is blamed for an
attitude or conduct of carelessness, thoughtlessness or imprudence
because, by giving insufficient attention to his actions, he failed
to adhere to the standard of care legally required of him.
In regards
to negligence and duty of care, the learned authors in the latter
work of
Law
of Delict
at p. 137 said as follows:
“
Negligence is, as stated above,
generally determined according to the test of the reasonable person.
On occasion our courts have
not applied this test and instead have
followed English law in applying the so-called ‘duty of care
doctrine.’ According
to this approach one must first establish
whether the defendant owed the plaintiff a duty of care (the ‘
duty
issue’
), and
thereafter whether there was a breach of this duty (the ‘
negligence
issue’
). If both
questions are answered in the affirmative, negligence is said to be
present.”
[11]
In the event of a duty of care a Plaintiff therefore also needs to
prove negligence in regards to breach of such duty of care.
Many of
the authorities dealing with breach of duty of care indeed refers to
“
negligent duty of
care”.
(e.g.
Indac
Electronics (Pty) Ltd v Volkskas Bank Ltd
[1991] ZASCA 190
;
1992 (1) SA 783
AD). In
Minister
van Polisie en Sekuriteit v Geldenhuys
2004 (1) SA 515
, the following was said:
“
Dit lei tot
die vraag of een of meer van die polisiebeamptes wat tydens
Geldenhuys se aanhouding aan diens was,
nalatig
was in sy of haar versuim om die voorgenoemde regsplig teenoor
Geldenhuys na te kom.” (My emphasis).
[12]
The
actio
legis aquiliae
enables
a Plaintiff to recover patrimonial loss (including purely economic
loss) suffered through a wrongful and negligent act of
a Defendant. A
Plaintiff for purposes of an
actio
legis aquiliae
must allege and prove that the Defendant was negligent.
[13]
The Plaintiff’s claim in the present matter, against both
Defendants and in particular the Second Defendant is based
on the
actio
legis aquiliae
.
It can therefore be taken that one of the
facta
probanda
which
the Plaintiff must allege and prove is indeed negligence.
[14]
Upon consideration of the particulars of claim, it is clear that it
contains no express allegation to the effect that the Second
Defendant was indeed at fault, more in particular negligent in its
breach of duty of care towards Plaintiff. For purposes
of an
exception it is, however, necessary to consider whether, as stated
above, upon every interpretation of the particulars of
claim no cause
of action or defence is disclosed. Furthermore, one should consider
whether as stated in
McKelvey
v Cowan
supra
any
possible evidence may be led on the pleading which can disclose
a cause of action.
[15]
The particulars of claim, in regards to the Second Defendant refers
to certain incidents which allegedly took place during
the period
April 2005 to April 2015 during which incidents the First Defendant
allegedly abused the Plaintiff as referred to above.
It further
refers to a particular incident during approximately April 2014. In
regards to the Second Defendant, the following allegations
are then
contained in the particulars of claim:
“
12. The Second Defendant:
12.1 failed to come to the assistance
of the Plaintiff, notwithstanding her request;
12.2 failed to act against the First
Defendant notwithstanding the fact that it was common knowledge that
the First Defendant treated
the Plaintiff and Second Defendant’s
nursing staff in a similar way;
12.3 failed to deal with allegations
of verbal abuse against the First Defendant seriously and
expeditiously;
12.4 permitted the First Defendant
wide latitude in his conduct towards the Second Defendant’s
staff, in particular the Plaintiff;
12.5 failed to create a working
environment in which the employees of the Second Defendant was not
subjected to verbal abuse;
12.6 failed to take all or reasonable
steps to preserve and protect the psychological wellbeing, mental
tranquillity and dignity
of the Second Defendant ‘s employees
in particular that of the Plaintiff.
13. By virtue of the aforegoing, the
Second Defendant breached its legal duty it owed to the Plaintiff to:
13.1 create a work environment free
from verbal abuse and intimidation;
13.2 take reasonable care for the
Plaintiff’s safety which included a duty to protect her from
psychological harm.”
[16]
If the Plaintiff can prove every fact as set out in paragraphs 12 and
13 (amongst others), the Plaintiff will be successful
in proving
negligence. I therefore cannot see how it can be said that the
Plaintiff’s particulars of claim, paragraphs 12
and 13 in
particular, do not disclose a cause of action. That being so, the
exception must fail as far as the first ground of complaint
are
concerned.
[17]
In regards to the second ground of complaint, an exception that a
pleading is vague and embarrassing ought not to be allowed
unless the
excipient would be seriously prejudiced if the offending allegations
were not expunged. In this regard a pleading will
not cease to be
prejudicial merely because it is possible to draft an unexcepiable
response to it. Prejudice to a litigant who
is faced with an
embarrassing pleading must ultimately lie in an inability properly to
prepare to meet the opponent’s case.
(See:
Levitan
v New Haven Holiday Enterprises CC
1991
(2) SA 297
C at 298);
Francis
v Sharpe
supra
at 240.
In this particular instance the mechanism provided for in Rule 21 in
regards to a request for further particulars for trial
purposes, is
also of importance.
[18]
The Second Defendant contends that the vagueness in the Plaintiff’s
particulars of claim in
casu
results
therein that the particulars of claim lacks particularity that
results that the Second Defendant is embarrassed to plead
to the
particulars of claim. In this regard the Second Defendant, relies,
amongst others, on
Quinlan
v MacGregor
1960
(4) SA 383
D. In dealing with potential prejudice in consideration of
an exception, Burney AJ said the following:
“
In the present case it seems to
me that as long as excipient is informed, albeit by
implication, that it is alleged that he
has failed to pay some of the
instalments, he is not blatantly embarrassed in pleading merely
because he is not informed of the
precise amount which the Plaintiff
says he has failed to pay.”
[19]
I am in agreement with
Mr Havenga
on behalf of the Second
Defendant that each alleged occasion that the Plaintiff was insulted
by the First Defendant constitutes
a distinct and separate unlawful
act and gives rise to a separate and distinct claim. I am furthermore
in agreement that in the
premises the claim in respect of any damages
that follow from an insult that occurred more than three years prior
to date of service
of the summons has prescribed in terms of the
provisions of
section 11
of the
Prescription Act, 68 of 1969
.
However, although the particulars of claim may be vague in this
regard, the Second Defendant may already at this stage plead that
any
incidents which might have occurred more than three years prior to
the institution of the action has prescribed in terms of
the
Prescription Act referred
to.
[20]
In the same breath, in dealing with paragraph 6 of Plaintiff’s
particulars of claim, and in particular the wording “includes,
but were not limited to” certain profanities, insults and
obscenities, the Second Defendant at this stage is indeed in a
position to plead and is not seriously prejudiced.
[21]
In regards to the special circumstances which Second Defendant
contends need to be alleged and proven for damages to be claimed,
judging from the alleged utterances by the first defendant, this is
not a case where the plaintiff was obliged to plead that, although
the words in their ordinary sense did not have a defamatory or
injurious meaning, there are special circumstances in the case which
gave the words used a special or secondary meaning in which sense
they were injurious. It appears that the words in the ordinary
sense in probability already have defamatory or injurious, meaning
being, “profanities, insults, obscenities and blasphemous
language. Therefore no special circumstances needed to be
pleaded showing why such words are now injurious. (See
Ciliza
v Minister of Police
1976 (4) SA 243
N at 248 A – B).
[22]
The availability of the mechanism of
Rule 21
is again of importance.
The Second Defendant will, of course, after receipt of such
particulars for trial purposes have the opportunity
to amend its plea
if necessary. I am therefore of the opinion that the exception in
regards to the particulars of claim being vague
and embarrassing
should also fail.
In
the premises the following order is made:
ORDER:
[23]
The exception is dismissed with costs.
______________
J.J.F
HEFER, AJ
On
behalf of the Excipient: Adv. D Havenga
Instructed
by:
Oosthuizen
Du Toit Berg & Boon Attorneys
c/o
McIntyre & Van der Post Attorneys
BLOEMFONTEIN
On
behalf of the Respondent/Plaintiff: Adv. W A van Aswegen
Instructed
by:
Kramer
Weihmann Joubert
Attorneys
BLOEMFONTEIN