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[2015] ZAECELLC 2
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N.E.N obo T v Sekwabe and Another (EL34/14, ECD 344/14) [2015] ZAECELLC 2 (17 February 2015)
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IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION - EAST LONDON
Case number: EL:
34/14
ECD: 344/14
Date Heard:
05/02/2015
Date Delivered:
17/02/2015
In the matter
between:
N[...] E[...]
N[...] obo
T[...]
.........................................................................................................
PLAINTIFF
And
DR E M
SEKWABE
........................................................................................................
1
st
DEFENDANT
THE MEDICAL
MANAGER OF LIFE ST.
DOMINICS
..........................................
2
nd
DEFENDANT
JUDGMENT
SMITH J:
[1]
The plaintiff, who acts in her capacity as mother and natural
guardian of her minor child, instituted civil action against the
defendants for damages arising out of injuries suffered by her ward
during child birth. The first defendant, Dr E.M Sekwabe, is
described
in the particulars of claim as a gynaecologist "
attached
to the maternity section of LIFE ST DOMINIC'S HOSPITAL",
and
the second defendant as
"THE
MEDICAL MANAGER OF THE BORDER HOSPITAL (PTY) LTD".
The
particulars of claim further state that the second defendant is sued
in "
his
official capacity and on the basis that he is vicariously liable for
the wrongful conduct of the employees of the Border Hospital".
Both
defendants subsequently filed exceptions on the ground that the
particulars of claim are vague and embarrassing.
[2]
The plaintiff's claim is pursuant to injuries suffered by her ward
during child birth on 15 January 2001, and allegedly caused
by the
"
first
defendant
,
alternatively, the
second defendant through the medical and hospital staff of the Life
St Dominies Hospital,"
in
that they:
(a)
failed to comply with their duties in accordance with an oral,
"alternatively
tacit agreement",
to
provide proper medical care to the plaintiff and her baby; and
alternatively
(b) negligently
acted in breach of their duty of care towards the plaintiff's baby.
[3] Both defendants
filed notices requiring the plaintiff to remove the causes of
complaint, and when she failed to remedy the alleged
defects, they
filed exceptions in the following terms:
(a) first defendant
averred that the particulars of claim are vague and embarrassing
since;
(i) it is unclear
from paragraph 7 thereof whether It is alleged that the first
respondent breached his duty of care to the plaintiff
or her baby, or
whether it is the medical and hospital staff who had breached their
duty of care;
(ii) it is not clear
from paragraph 8 thereof on which ground the plaintiff rely for the
averment that the first defendant had breached
the agreement between
the parties, alternatively, had breached his duty of care to the
plaintiff and her baby; and
(iii) the plaintiff
has failed to plead sufficient particularity of the injuries, and has
in particular failed to state whether
the pain and suffering is of a
permanent or temporary nature, and also failed to provide sufficient
particularity of the nature
of the injuries her ward had allegedly
suffered.
(b) The second
defendant's exception avers substantially the same grounds and, in
addition, avers that the plaintiff has failed:
to plead a proper
basis for the citation of the second defendant (there being no such
functionary); to state on what basis he would
bear vicarious
liability for the conduct of the employees of the Border Hospital;
and to set out grounds for the averment that
the defendants, or the
hospital staff, negligently breached their duty of care.
[4] Paragraph 7 of
the particulars of claim reads as follows:
"7. Upon
admission to the said hospital, an oral alternatively tacit agreement
came into being between the parties, alternatively,
the defendants
incurred legal duty, in terms whereof the defendants would, through
medical and hospital staff of the said hospital:
7.1 Attend to the
Plaintiff and her baby with the skill and diligence reasonably
expected of such medical and hospital staff which
included the taking
of the necessary steps and doing the necessary tests to ascertain and
monitor the condition of the Plaintiff's
baby at ali relevant times
in order to ensure that the Plaintiff's baby will be born without
abnormalities.
7.2 Follow the
generally acceptable procedures prior to and during delivery of the
baby and/or any emergency in relation thereto
timeously to ensure
that the baby is born normal;
7.3 In any event
provide medical care and attention to the Plaintiff's baby as
circumstances may require;
7.4 Take all the
necessary and reasonable steps to prevent or minimize pain and trauma
for the Plaintiff's baby;
7.5 Take all such
steps as may be reasonably required to keep the baby normal at all
times both prior to and after the delivery
process".
[5] And paragraph 8
reads as follows:
"The First
Defendant, alternatively, the Second Defendant through the medical
and hospital staff of the Life St Dominic's Hospital,
acting within
the course and the scope of their employment with the Second
Defendant failed to comply with their duties as set
out in paragraphs
7.1 to 7.5 hereinabove and thereby breach the agreement between the
parties, alternatively, negligently acted
in breach of their of care
towards the Plaintiff's baby in and as a result whereof the baby
suffered an injury on the right arm
and shoulder which led to the
right arm being immobile".
[6]
Mr
Godongwana,
who
appeared for the plaintiff, conceded during oral argument that the
second defendant's complaint regarding the manner of his
citation was
valid and that this has rendered the particulars of claim vague and
embarrassing - at least in respect of the second
defendant. He thus
accepted that the second defendant's exception should be upheld on
this basis. He argued, however, that the
other grounds raised by the
defendants are untenable.
[7]
I do not agree with the latter submission. In my view Mr
Bester,
for
the first defendant, and Mr
Woods,
for
the second defendant, correctly argued that it is unclear on what
basis the defendants are alleged to have breached the oral,
alternatively tacit terms of the agreement. In addition, although the
defendants are alleged (in the alternative) to have negligently
breached their duty of care towards the plaintiff's ward, the
particulars of claim fail to set out any grounds of negligence.
Furthermore, the averments contained In the particulars of claim fail
to establish a clear nexus between the alleged negligence
of the
first defendant and that of the second defendant, or the hospital
staff.
[8] In respect if
the Injuries suffered by the plaintiff's ward, the particulars of
claim state only that: "the baby suffered
an injury on the right
arm and shoulder which led to the right arm being immobile."
[9]
Rule 18(10) requires of a plaintiff to plead facts relating to
damages
"in
such a manner as
will enable the defendant reasonably to assess the quantum thereof:
provided that the plaintiff suing for damages
for personal injury
shall specify his date of birth, the nature and extent of the
injuries and the nature, effects and duration
of the disability
alleged to give rise to such damages..."
[10]
I am of the view that paragraphs 7 and 8 of the plaintiff's
particulars of claim are indeed vague and embarrassing for the
reasons contended for by the defendants. It is not possible, on every
conceivable reading, to distil a clear single meaning from
these
paragraphs, and the defendants are left guessing as to the legal
basis on which they allegedly incurred liability for the
actions of
the hospital staff. (
Venter
and Others NNO v Barritt Venter and Others NNO v Wolfsberg Arch
Investments 2 (Pty) Ltd
2008 (4) SA 639
(C) at 644-B).
[11] In addition,
the averments relating to the nature of the injuries contained in
paragraph 18 of the plaintiff's particulars
of claim lack
particularity as required in terms of Rule 18 of the Uniform Rules of
Court, and are accordingly vague and embarrassing.
[12] In my view it
is virtually impossible for the defendants to distil from the
particulars of claim exactly what case it is that
they are required
to plead to, and they would accordingly be severely prejudiced should
they be required to plead thereto in its
present state. That it may
be possible for them to simply plead a bare denial does not detract
from the fact that the pleading
remains vague and embarrassing, and
they are accordingly entitled to except thereto. I am accordingly of
the view that the exceptions
must succeed.
[13] In the result
the following order issues:
1. The first and
second defendant's exceptions are upheld with costs;
2. The plaintiff is
granted leave to amend her particulars of claim within fifteen (15)
days from the date of this order;
J.E SMITH
JUDGE OF THE HIGH
COURT
Appearances
Counsel for the
Applicant : Mr Ngodongwana
Attorneys for the
Applicants : Godongwana Ngonyama Pakade
280 Oxford Street
Cnr St Mathew Road &
Oxford Street
Southernwood
EAST LONDON
Ref: Mr L
Godongwana/zm/NGOOl/OO
Counsel for the 1
st
Respondent : Advocate Bester
Attorneys for the
Respondent : B L C Attorneys
C/O
Drake Flemmer and
Orsmond
22 S James Road
Southernwood
EAST LONDON
Ref: Mr A
Pringle/3498
Counsel for the 2
nd
Respondent Advocate Woods
Attorneys for the
Respondent : Whalley & Van Der Lith Inc
C/O
Smith Tabata Inc
12 Helena Street
Beacon Bay
EAST LONDON
Ms C
Thessen/ab/63W/149002
Date Heard: 05
February 2015
Date Delivered: 17
February 2015