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[2012] ZAECELLC 20
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Ndaliso v MEC of the Department of Health of the Eastern Cape Government, Bisho (EL 478/12, ECD 1178/12) [2012] ZAECELLC 20 (30 November 2012)
5
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION –
EAST LONDON
Case no: EL 478/12
ECD 1178/12
Date Heard: 27/11/12
Date Delivered: 30/11/12
In the matter between:
BONISILE CHRIS NDALISO
..............................................................
PLAINTIFF
And
MEMBER OF THE EXECUTIVE COUNCIL
OF THE
DEPARTMENT OF HEALTH OF THE
EASTERN CAPE
GOVERNMENT, BHISHO
................................................................
DEFENDANT
JUDGMENT
SMITH J:
The Plaintiff issued summons
against the Defendant for damages in the amount of R1 020 000,
arising out of the alleged negligence
of the medical staff of the
Frere Hospital, East London, during the course of medical treatment
administered to the Plaintiff
in respect of a fracture of his right
patella. The Defendant has filed an exception to the Plaintiff’s
particulars of claim
on the grounds that:
(a) they are vague and embarrassing;
and
(b) they lack averments necessary to
sustain a cause of action.
The Defendant has in particular
averred that the plaintiff’s particulars of claim do not:
set out the basis of the
defendant’s alleged negligence;
state the period and time when the
alleged negligence took place;
state whether the alleged
negligence occurred at the time of, or after, the defendant’s
medical and hospital staff conducted
the open reduction procedure
and internal fixation; and
state when, how and by whom the
foreign body which was lodged in the plaintiff’s knee was
discovered.
The impugned paragraphs of the
Plaintiff’s particulars of claim read as follow:
“
6. Despite the
agreement, the Defendant, through its medical and hospital staff,
carried out medical treatment to the Plaintiff
negligently in one or
more of the following respects:
6.1 an open reduction
procedure and internal fixation was, performed in the course of which
a foreign body, being the end of a K-wire
became lodged in the
Plaintiff’s knee;
6.2 the said medical
and hospital staff failed to prevent the lodging of the said foreign
body in the Plaintiff’s knee;
6.3 they failed to
notice the presence of the said foreign body in the Plaintiff’s
knee;
6.4 they failed to have
X-rays taken after the internal fixation had been performed;
6.5 they failed to
remove foreign body from the Plaintiff’s knee.
7. As a result of the
aforegoing the Plaintiff suffered a significant degree of injury
involving the articular surfaces of the knee
for a period of about 7
years resulting in premature degenerative changes with resultant
inability to perform certain weight-bearing
activities on a permanent
basis together with the associated pain and suffering and the loss of
amenities of life.”
In terms of Rule 18(4) of the
Uniform rules of Court:
“
Every pleading
shall contain a clear and concise statement of the material facts
upon which the pleader relies on for his claim,
defence or answer to
any pleading, as the case may be, with sufficient particularity to
enable the opposite party to reply thereto.”
And in terms of Rule 18.10 a
plaintiff suing for damages is required to set them out in such a
manner “as will enable the
defendant reasonably to assess the
quantum thereof.”
A plaintiff is therefore required
to plead a summary of the material facts on which he or she will
rely with sufficient clarity
to enable the defendant to plead
thereto. These primary factual allegations, which are also referred
to the
facta probanda,
are those which the plaintiff will be
required to prove at the trial in order to succeed with his or her
claim. They must be
distinguished from the secondary allegations, or
facta probantia,
which are usually matters for evidence.
(Jowel v Bramwell Jones
1998 (1) SA 836
(WLD) at 903 A-B).
The enquiry as to whether a
pleading is vague and embarrassing involves a two-fold
consideration. The first being whether the
pleading lacks
particularity to the extent that it is vague. The second is whether
the vagueness causes embarrassment of such
a nature that the
excipient is prejudiced. (
Trope v South African Reserve Bank And
other two cases
1992 (3) SA 208
(TPD) 211B-E.)
An exception on
the ground that the pleading is vague and embarrassing will only be
allowed if the excipient will be prejudiced
if the offending
paragraphs are allowed to stand. (
Levitan v Newhaven Holiday
Enterprises CC
1991 (2) SA 297
(CPD)
at 298A-D.)
Mr
Sishuba,
on behalf of the
Defendant, has submitted that it is not clear from paragraph 6 of
the Plaintiff’s particulars of claim
whether the Plaintiff’s
cause of action is founded on an averment that the medical staff
were negligent in making use of
a foreign object (namely the K-wire)
during the operation, or the fact that a portion of the K-wire,
namely the head thereof,
was left lodged in the Plaintiff’s
knee. The impugned portions are therefore open to different
interpretations, and the
Defendant is left guessing as to what the
Plaintiff’s actual cause of action is. They will therefore be
prejudiced if the
particulars are allowed to stand in their present
form, so he argued. In my view this argument cannot be upheld. It is
clear
on a reasonable reading of the Plaintiff’s particulars
of claim that he relies on the alleged negligence of the medical
staff in: allowing a foreign object, namely the head of a K-wire, to
become lodged in his knee; failing to take reasonable steps
to
detect the said foreign object; and in failing to arrange for it to
be removed. It is also clear that the alleged negligent
conduct of
the hospital staff occurred during, and after, the open reduction
procedure which was performed during September 2004.
In my view
therefore the Plaintiff has set out the material facts on which he
will rely with sufficient clarity and particularity
so as to enable
the Defendant to plead thereto.
I am also satisfied that paragraph
7 of the particulars of claim contain sufficient particularity to
enable the Defendant reasonably
to assess the
quantum
of the
Plaintiff’s damages. The Plaintiff has set out with sufficient
particularity: the nature of the injury; the duration;
and the
sequelae
thereof. The detail relating to the discovery of the
foreign object lodged in the plaintiff’s knee, which Mr
Sishuba
has submitted should have been pleaded by the
Plaintiff, in my view do not form part of the
facta probanda
,
and it was therefore not incumbent on the Plaintiff to plead them.
In the result I am of the view that the exception cannot
be upheld.
I therefore make the following
order:
The exception is dismissed with
costs.
_____________________
J.E SMITH
JUDGE OF THE HIGH COURT
Appearances
Counsel for the Plaintiff : Advocate
Sishuba
Attorney for the Applicant :
Niehause McMahon Attorneys
12 Belgravia Crescent
Southernwood
Eass London
Ref: McMahon/ap/gn1071
Counsel for the Respondents :
Advocate Louw
Attorney for the Respondents : State
Attorney’
1
st
Floor, Permanent
Building
East London
Ref: 358/12-p11(Mr Maqambayi)
Date Heard : 27 November 2012
Date
Delivered : 30 November 2012