South Africa: Careful! An Unreasonable Exception Can Cost You Dearly

When it comes to personal injury litigation, one of the most common tactics used by defendants is to attempt to delay the process through exceptions which are increasingly ill founded.

Let us face it: most of the doctors and hospitals sued for personal injury claims are insured. These insurance companies are civil litigation veterans. They know that victims are dealing with medical expenses, are unable to work, and have to provide for their families. The longer the delay in finalising matters, the greater the financial burden becomes for victims, resulting in them being more likely to accept any sort of settlement offer forthcoming from a defendant.

Principles Gathered from Case Law on the Requirements for Pleadings

A plaintiff is required to plead his / her case in terms that are lucid, logical and intelligible.¹ A plaintiff must only plead the facta probanda and not the facta probantia.²

A plaintiff does not need to plead the evidence, and a defendant is not entitled to an abridged version of the plaintiff's evidence.³ It is only entitled to such information as to put it in the picture as to what the issues are.⁴

A plaintiff does not need to show a defendant precisely how a claim is arrived at. A plaintiff is not required to put a monetary value on each item claimed.⁵

Neither party can accurately assess damages, and same will only be finally adjudicated after the evidence has been led and tested.⁶ By nature, a precise evaluation of damages is not possible.

A defendant is not entitled to such detailed information as to the injuries or as to such elements of general damages as pain and suffering or loss of amenities or possible future medical treatment as may be necessary for an exact assessment to be made of the sum which should in the final analysis be awarded.⁷

A plaintiff should plead the outline of his case. That does not mean a defendant is entitled to a framework like a crossword puzzle where every gap can be filled by logical deduction. The outline may be asymmetrical and possess rough edges not obvious until actually explored by evidence.⁸  The pleadings must provide a clear idea of the material facts which are necessary to make the cause of action intelligible.

The pleadings must be read as a whole and no sentence must be seen in isolation. Minor blemishes are irrelevant. Conclusions of law need not be pleaded, and thus certain allegations expressly made may carry with them implied allegations and must be read accordingly.⁹

When the lack of particularity relates to mere detail, the remedy of the defendant is to plead to the averment made and to obtain the particularity he / she requires:  (i) either by means of discovery/inspection of the document procedure in terms of the Rules; or (ii) by means of a request for particulars for trial of those particulars which are strictly necessary to enable the defendant to prepare for trial.¹⁰

Principles Gathered from Case Law on an Excipient's Onus and Prejudice

An exception that the pleading is vague and embarrassing may only be taken when the vagueness and embarrassment strikes at the root of the cause of action as pleaded.¹¹

The onus on the excipient is to show that the pleadings are vague and that they are also thereby prejudiced. An exception that a pleading is vague and embarrassing will not be upheld unless the excipient will be seriously prejudiced.¹²

If any of the information sought is within the knowledge or contemplation of the excipient, he / she cannot complain and/or show prejudice.

A defendant is required to perform his / her own investigations and cannot demand that the plaintiff provide him / her with every detail. A defendant is not a passive party who merely checks on what the plaintiff says. He / she has a duty himself / herself to work out what is a reasonable assessment of the damage sustained by the plaintiff.¹³

The excipient has a duty to persuade the court that the pleading is excipiable on any interpretation that can be attached to it.  The pleading must be looked at as a whole.¹⁴

An exception that the pleading is vague and embarrassing is not directed at a particular paragraph within a cause of action; it goes to the whole cause of action, which must be demonstrated to be vague and embarrassing. ¹⁵ An exception that the pleading is vague and embarrassing will not be allowed unless the excipient will be seriously prejudiced if the offending allegations were not expunged.  The effect of this exception is that the exception can only be taken if the vagueness relates to the cause of action.¹⁶

An overly technical approach should be avoided because it destroys the usefulness of the exception procedure, which is to weed out cases without legal merit. ¹⁷

Previously, a plaintiff was obliged to furnish such particulars as were "reasonably necessary" to enable the defendant to plead or to tender. The position is now that such particulars are required to be furnished as are "strictly necessary".¹⁸

Principles Gathered from Case Law on Costs and What Amounts to an Abuse of Process

A court should be able, where necessary, to cut to the chase and be practical about matters. Resolution of matters on technicalities only serves to delay the resolutions of disputes between the parties much to the unnecessary escalation of costs of dispensing justice.¹⁹

Technical objections to less than perfect procedural steps should not be permitted, in the absence of prejudice, to interfere with the expeditious and inexpensive decision of cases on their real merits.²⁰

Where the exception is trifling or frivolous, and has the effect of unnecessarily delaying the trial in the action, the other party is entitled to his costs on the attorney client scale.²¹

A preferable route where particularity is sought and does not go to the root of the cause of action, is to apply the Rule 30 procedure, and not an exception.²²

SP Nengovhela V Dr Mbele and Netcare Femina Hospital Judgment, Dated 18 November 2020

The plaintiff ("Ms Nengovhela") sued for loss she claimed was caused by the first defendant ("Dr. Mbele") and the staff employed by the second defendant ("Netcare") during and after intrauterine foetal death surgery. The surgery involved the performance of a hysterectomy. It was alleged that during and after the surgery Dr. Mbele and the Netcare staff were responsible for various negligent acts and omissions that led to serious post-operative complications and long-term harm. Chief among the acts of negligence alleged was that a swab was left inside Ms Nengovhela's abdominal cavity. This allegedly caused an ileus and various other life-threatening complications.

Netcare took exception to Ms Nengovhela's particulars of claim, on the grounds that they were vague and embarrassing and that they did not comply with Rule 18, in four discrete respects. All four of Netcare's complaints related to a lack of particularity in the way Ms Nengovhela pleaded her damages.

In the judgement, judge Stuart Wilson said: "The question in this case is whether there is an ambiguity that prevents Netcare from reasonably estimating the quantum of Ms Nengovhela's damages and pleading to her particulars of claim."

Judge Wilson found that: "In truth, the way the damages have been pleaded in this case is more than adequate. In the circumstances, it is exemplary. Every relevant particular that can be given has been given. Read as a whole, the particulars are more than sufficient to allow Netcare to reasonably assess the quantum claimed and to plead.

On the aspect of costs, judge Wilson further found that: "It seems to me that the exception was so poorly taken that Ms Nengovhela ought to be more than fully indemnified against the costs of opposing the exception than an ordinary party and party order would allow. Exceptions are not occasions for word games or abstract debates about whether there has been technical compliance with the letter of Rule 18. They are meant to insulate a party against having to plead to allegations that they cannot reasonably be expected to answer. In other words, they are meant to prevent or cure actual prejudice."

For all these reasons, judge Wilson dismissed the exception with costs on the scale as between attorney and client.

Conclusion

In the field of personal injury law, including medical negligence, motor vehicle accident claims, trip and fall cases, a requirement that plaintiffs must present a fully quantified claim is simply too onerous and expensive. It is also not necessary for the proper conduct of these matters.

Accordingly, defendants should only file exceptions when there is a lack of particularity which prevents a defendant from reasonably ascertaining the case to be answered, failing which they are certain to be met with punitive cost orders.

Footnotes

1 Pretorius v Road Accident Fund (4743/2018) [2019] ZAFSHC 29 (18 April 2019) at paras [8 ];

Jowell v Bramwell Jones 1998 (1) SA 836 at 902 H

2 Jowell v Bramwell Jones 1998 (1) SA 836 at 903 A and Vodacom (Pty) Ltd v GM Graphix (Pty) Ltd 18241/2018 [2019] ZAGP JHC 73 (12 March 2019) at para [45]

3 Coop & Another v Motor Union Insurance Co Ltd 1959 (4) WLD 273 at 278 A

4 Reid, N.O. v Royal Insurance Co. Ltd (1951) (1) 713 (T) at 717 D and Coop & Another v Motor Union Insurance Co Ltd 1959 (4) WLD 273 at 278 A

5 Coop & Another v Motor Union Insurance Co Ltd 1959 (4) WLD 273 at 277 A – G

6 Cete v Standard and General Insurance Co Ltd 1973 (4) 349 (WLD) at 353 H – 354 G

7 Coop & Another v Motor Union Insurance Co Ltd 1959 (4) WLD 273 at 278 G – H

8 Pretorius v Road Accident Fund (4743/2018) [2019] ZAFSHC 29 (18 April 2019) at para [9]

9 Jowell v Bramwell Jones 1998 (1) SA 836 at 902 I – 903 E

10 Jowell v Bramwell Jones 1998 (1) SA 836 at 902 B

11 Jowell v Bramwell Jones 1998 (1) SA 836 at 902 F to G

12 Vodacom (Pty) Ltd v GM Graphix (Pty) Ltd 18241/2018 [2019] ZAGP JHC 73 (12 March 2019)at para [54]

13 Cete v Standard and General Insurance Co Ltd 1973 (4) 349 (WLD) at 354 G

14 Vodacom (Pty) Ltd v GM Graphix (Pty) Ltd 18241/2018 [2019] ZAGP JHC 73 (12 March 2019) para [55]

15 Vodacom (Pty) Ltd v GM Graphix (Pty) Ltd 18241/2018 [2019] ZAGP JHC 73 (12 March 2019) para [56]

16 Vodacom (Pty) Ltd v GM Graphix (Pty) Ltd 18241/2018 [2019] ZAGP JHC 73 (12 March 2019) para [58]

17 Vodacom (Pty) Ltd v GM Graphix (Pty) Ltd 18241/2018 [2019] ZAGP JHC 73 (12 March 2019) para [62]

18 South African Railways and Harbours v Deal Enterprises (Pty) Ltd 1975 (3) SA 944 (W) at 947

19 Vodacom (Pty) Ltd v GM Graphix (Pty) Ltd 18241/2018 [2019] ZAGP JHC 73 (12 March 2019) at para [63]

20 Trans-African Insurance Co Ltd v Maluleka (1956) (2) 273 (A) at p. 278 E – G

21 Beinash v Wixley (457/95) [1997] ZASCA 32;  1997 (3) SA 721 (SCA);  [1997] 2 All SA 241 (A)

and Reid, N.O. v Royal Insurance Co. Ltd (1951) (1) 713 (T)

22 Jowell v Bramwell Jones 1998 (1) SA 836

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.