About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2014
>>
[2014] ZAGPPHC 132
|
|
M.L.L v MEC for the Department of Health and Social Services, Mpumalanga (34176/2013) [2014] ZAGPPHC 132 (2 April 2014)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 39497/11
DATE:
2/4/2014
Not
Reportable
Not
of interest to other judges
In
the matter between:
M[…]
L[…]
L[…]
...
..................................................................................................
PLAINTIFF
and
THE
MEC FOR THE DEPARTMENT OF HEALTH
&
SOCIAL SERVICES,
MPUMALANGA
...........................................................
DEFENDANT
JUDGMENT
BAM
J
1.
The plaintiff, in his personal capacity and his representative
capacity for his minor child, issued summons against the defendant,
claiming damages from the defendant resulting from an alleged failure
by doctors and nursing staff at the Themba Hospital to treat
the
child in accordance with professional standards. The defendant filed
an exception against the particulars of claim on the basis
that it is
vague and embarrassing.
2.
The application is opposed. The plaintiff however failed to comply
with the Rules in that no heads of argument, nor the required
Practice Note, were filed. On 24 March 2014, the day of hearing, Mr
Potgieter appeared on behalf of the plaintiff. He was unable
to
advance any explanation for the plaintiff’s failure to comply
with the practice Rules. I indicated to Mr Potgieter that
in that
regard a punitive costs order may be considered against the
plaintiff.
3.
The relevant particulars of claim read as follows:
“
7.
7.1
On 30 November 2010 the minor child suffered an accident in which she
sustained right hand distal radius fracture.
7.2
On the same day the minor child was admitted at Themba Hospital
under number 1[…] for that injury.
7.3
The minor child was sent for an X-ray that showed distal radius
fracture displaced.
7.4
The minor child was treated by putting a plaster on the broken arm
and given medication.
8.
On the 21
st
December 2010 when the minor child went to
remove the plaster at the hospital, it was discovered that the
procedure was not properly
done and it was too late for an
intervention.
9.
The minor child’s arm is bent and will need future medical
attention.”
4.
In paragraphs 11 and 12 it is alleged that the hospital
and the medical practitioners accepted a legal duty that the
child
would be treated with due professional skill and
expertise.
5.
In paragraphs 17, 18, 19 and 20 it is averred that the
medical practitioners failed to treat the child with the necessary
professional
skill and expertise.
6.
In the exception the first attack is aimed at the
allegation that the child was involved in an accident. The defendant
complains
about the fact that the plaintiff did not state where, when
and how the alleged accident occurred. This attack, as it is worded
in paragraphs 1.1 to 1.5 of the exception, is without substance. The
particulars of claim clearly state that the cause of action
arose in
the hospital where the child was not properly treated after the
accident. As far as the alleged accident is concerned,
there was no
need for the plaintiff to state how, when and where, and in what
circumstances the child sustained the injury.
7.
The second attack is aimed at the failure by the plaintiff
to set out what was the nature of the procedure applied in the
hospital.
The plaintiff clearly stated when and where the child was
treated and even supplied a hospital reference number. In my view
there
was no need for the plaintiff to describe in medical terms the
nature of the procedure. The exact nature of the procedure falls
clearly within the knowledge of the defendant. This part of the
exception was evenly without substance.
8.
The excipient’s last complaint involves the
quantification of the damages. The evidence substantiating the
initial quantification
of the damages, save for past medical expenses
and general damages is usually supplied by experts when the issue of
quantum is
addressed during the pre-trial or at the trial itself. It
was in my view not necessary for the plaintiff to make detailed
averments
in the particulars of claim in that regard.
9.
In my view the plaintiff’s particulars of claim are
sufficiently detailed to enable the defendant to plead.
10.
It follows that the exception is not well founded and
should be dismissed.
11.
In view of the fact that the plaintiff failed to comply
with the Rules of Court, as alluded to above, the plaintiff should
disallowed
any costs pertaining to the exception.
12.
Accordingly I make the following order.
1.
The exception is dismissed.
2.
Each party to pay its own costs.
A
J BAM
JUDGE
OF THE HIGH COURT
28
March 2014.