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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.}

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