M.B.M obo M.M v Elevator Maintenance Company (26267/21) [2022] ZAGPPHC 256 (8 March 2022)

M.B.M obo M.M v Elevator Maintenance Company (26267/21) [2022] ZAGPPHC 256 (8 March 2022)

The court held that the plaintiff's particulars of claim failed to lay a sufficient basis for negligence, as it did not aver the existence of a legal duty on the defendant's employees which was wrongfully and culpably breached. Therefore, the first exception was upheld. However, the court found that Rule 18(10) does not require the plaintiff to plead evidence, and that the particulars of claim were sufficiently clear and concise for the defendant to plead to, resulting in the dismissal of the second exception. The plaintiff was granted leave to amend the particulars of claim within fifteen days, failing which the defendant would be absolved from the instance with costs.

Citation
[2022] ZAGPPHC 256
Parties
Plaintiff: M.B.M obo M.M; Defendant: Elevator Maintenance Company
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
8 March 2022
Case Number
26267/21
Procedural Posture
Civil Procedure / Exception to Particulars of Claim
Outcome
The first exception is upheld with costs, including the costs of senior counsel. The second exception is dismissed with costs. The plaintiff is permitted to file amended particulars of claim within fifteen days, failing which the defendant shall be absolved from the instance with costs.
Judges
D Makhoba
Legal Topics
Negligence, Legal Duty, Pleading Requirements, Rule 18 10, Exception Procedure
Civil Procedure Delict Negligence Legal Duty Pleading Requirements Rule 18 10 Exception Procedure

Case Brief

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Parties

M.B.M obo M.M

Plaintiff

Elevator Maintenance Company

Defendant

Procedural Posture

Civil Procedure / Exception to Particulars of Claim

Legal Issues

  1. 1 Whether the plaintiff's particulars of claim disclose a cause of action for negligence against the defendant.
  2. 2 Whether the particulars of claim are vague and embarrassing in terms of Rule 18(10) regarding personal injury damages.

Ratio Decidendi

The court held that the plaintiff's particulars of claim failed to lay a sufficient basis for negligence, as it did not aver the existence of a legal duty on the defendant's employees which was wrongfully and culpably breached. Therefore, the first exception was upheld. However, the court found that Rule 18(10) does not require the plaintiff to plead evidence, and that the particulars of claim were sufficiently clear and concise for the defendant to plead to, resulting in the dismissal of the second exception. The plaintiff was granted leave to amend the particulars of claim within fifteen days, failing which the defendant would be absolved from the instance with costs.

Court Disposition

The first exception is upheld with costs, including the costs of senior counsel. The second exception is dismissed with costs. The plaintiff is permitted to file amended particulars of claim within fifteen days, failing which the defendant shall be absolved from the instance with costs.

Orders

  • The first exception is upheld with costs including the cost of senior counsel.
  • The second exception is dismissed with costs.