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[2013] ZAGPPHC 166
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Vermeulen v Medi-Clinic Ltd (47614/08) [2013] ZAGPPHC 166 (12 June 2013)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE NO: 47614/08
DATE:12/06/2013
In
the matter between:
G
VERMEULEN
........................................................................................
Plaintiff
(Applicant)
and
MEDI-CLINIC
LIMITED
......................................................................
Defendant(Respondent)
JUDGMENT
MOTHLE
J:
[1]
On 29 October 2012 I delivered a judgment (“the main judgment')
in which I ruled in favour of the plaintiff and awarded
costs against
the defendant. On 28 March 2013 I once again delivered a judgment
(“the cost judgment") in an application
brought by the
plaintiff, for reconsideration of the cost order in the main
judgment.
[2
The plaintiff had instituted action in this Court for damages arising
out of injuries he sustained during his stay at the defendant’s
hospital facility in Nelspruit. The plaintiff was admitted for
treatment of malaria infection and in the process, developed bedsores
which resulted in a gaping wound on the sacrum. The injury caused the
collapse of his sciatic nerves which resulted in a loss of
the use of
his legs and him being confined to a wheelchair. This injury was
attributed to the negligent conduct of the defendant’s
nurses.
[3]
The defendant denied any negligence on the part of the nurses and
contended that the bedsores were as a result of the predisposed
condition of the patient and the fact that due to the critical stage
of his condition, he was supposed to remain in a stable condition,
making the standard prescribed treatment for bedsores impossible.
[4]
In essence, the plaintiff on the one hand contended that he developed
bedsores because the nurses failed to turn him regularly
as
prescribed by their interna! treatment procedures and training. The
defendant on the other hand contents that the plaintiff
developed
bedsores because it was too dangerous to turn him while in that
critical condition. I found on the facts that the nurses
were
negligent. I ruled that the defendant was liable for damages
including the costs of the proceedings.
[5]
Before me is an application by the defendant for leave to appeal the
main judgment as well as an application by the plaintiff
to cross-
appeal the cost judgment. The defendant raises a number of grounds in
support of its application which, in light of the
decision I am about
to make, I deem it unnecessary to deal with in detail.
[6]
It is indeed trite that in considering an application for leave to
appeal, the question is whether there are reasonable prospects
of
success in the appeal, or put differently, whether there are
reasonable prospects of another Court arriving at a different
decision than the one arrived at, see Roman Catholic Church,
Klerksdorp Diocese v Southern Life Association Ltd
1992 (2) S.A 807
AD.
[7]
I have listened carefully to the submissions by both counsels in
regard to these applications. Both counsel referred me to extracts
from the record which I found to be out of context of the entire
evidence and were thus unhelpful. The record runs into volumes
of
documents which contain the oral and written evidence, most of it
from experts, submitted during the trial. Extrapolating isolated
statements from the record and presenting arguments on the basis
thereof is woefully inadequate and tends to misrepresent the import
of the expert opinions. It is apposite in this instance to refer to
the Learned Judge’s remarks in the matter of Alipay
Consolidated Investments Holdings (Pty) Ltd and Others v The Chief
Executive Officer of the South African Social Security Agency
and
Others, case number 678/2012, paragraph 21, delivered in the Supreme
Court of Appeal on 27 March 2013, where he stated in paragraph
21
thus; 7 do not think it is helpful to extrapolate from selected
statements made in cases decided in a different context”.
In
that case, the Learned Judge was referring to statements extrapolated
from case law. I am of the view that this remark also
holds true in
regard to isolated statements of evidence extracted from the trial
record.
[8]
It is indeed trite that leave to appeal in this instance should only
be granted when:
8.1
there is a reasonable prospect of success;
8.2
the amount in dispute is not trifling; or
8.3
the matter is of substantial importance to one or both of the parties
concerned.
[8]
I accept the plaintiff's submission that my decision is based on the
facts and ordinarily the appeal Court would not interfere
with my
finding of credibility of witnesses unless on the record it appears
that I was patently wrong. However, it seems to me
that this matter
is of substantial importance to the defendant, as it affects the
conduct of its business in various other hospital
facilities with
potential to attract liability as in cases of this nature.
[9]
For the reason stated above, I am persuaded that it will be in the
interest of justice that I should grant leave to appeal.
Both parties
are ad idem that in the event I decide to grant leave to appeal, I
should also allow the cross appeal on the issue
of costs and that the
appeals should be referred to the Supreme Court of Appeal.
[10]
In the premises, I make the following order:
Leave
to appeal the main judgment and orders and the cross appeal on the
cost judgment and orders to the Supreme Court of Appeal
is hereby
granted. Costs are costs in the appeal.
S.
P. Mothle
Judge
of the High Court
PRETORIA.
Date
of Judgment:
For
the Plaintiff: Adv. WP De Waal, SC
Adv
WL Munro
Instructed
by: Adams and Adams Inc
Lynwood
Bridge, 4 Daventry Street Lynwood Manor. Pretoria
For
the Respondent. Adv. R van Riet, SC
instructed
by: Fairbridges Attorneys
c/o
MacRobert Inc
MacRobert
Building, Cnr Justice Mahomed & Jan Shoba Street Brooklyn,
Pretoria