Ndaliso v Member Of The Executive Council Of The Department Of Health Of The Eastern Cape Government, Bhisho (EL 478/2012, ECD 1178/2012) [2019] ZAECELLC 2 (22 January 2019)

Ndaliso v Member Of The Executive Council Of The Department Of Health Of The Eastern Cape Government, Bhisho (EL 478/2012, ECD 1178/2012) [2019] ZAECELLC 2 (22 January 2019)

The court found that the plaintiff did not have knowledge of the presence of the k-wire tip in his knee until June 2011, and the defendant failed to prove otherwise. Therefore, prescription did not begin to run until that date, and the special plea of prescription failed. The plaintiff gave timeous notice under the Legal Proceedings Act, and the notice was sufficient, so the special plea based on non-compliance also failed. On the merits, the court held that the standard procedure for internal fixation was not followed, as no x-ray was taken and no record was made of the missing k-wire tip. The medical staff acted negligently by failing to exercise the required duty of care, resulting in...

Citation
[2019] ZAECELLC 2
Parties
Plaintiff: Bonisile Chris Ndaliso; Defendant: Member Of The Executive Council Of The Department Of Health Of The Eastern Cape Government, Bhisho
Court
Eastern Cape High Court, East London Local Court
Jurisdiction
South Africa
Judgment Date
22 January 2019
Case Number
EL 478/2012, ECD 1178/2012
Procedural Posture
Civil Trial / Merits and Special Pleas Separated; Quantum Stood Over
Outcome
The defendant's special pleas are dismissed. The defendant is held liable to compensate the plaintiff for harm caused by negligence of medical and hospital staff. Costs awarded to the plaintiff.
Judges
S M Mbenenge
Legal Topics
Medical Negligence, Prescription Act, Duty of Care, Institution of Legal Proceedings Act
Delict Civil Procedure Medical Negligence Prescription Act Duty of Care Institution of Legal Proceedings Act

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 13 Party arguments 2
Sign in to unlock

Parties

Bonisile Chris Ndaliso

Plaintiff

Member Of The Executive Council Of The Department Of Health Of The Eastern Cape Government, Bhisho

Defendant

Procedural Posture

Civil Trial / Merits and Special Pleas Separated; Quantum Stood Over

Legal Issues

  1. 1 Whether the plaintiff's claim has become prescribed by effluxion of time.
  2. 2 Whether the plaintiff gave timeous notice of intention to institute action as required by the Institution of Legal Proceedings Against Certain Organs of State Act.
  3. 3 Whether the lodging of the k-wire tip in the plaintiff's knee is attributable to negligent conduct by hospital and medical staff.

Ratio Decidendi

The court found that the plaintiff did not have knowledge of the presence of the k-wire tip in his knee until June 2011, and the defendant failed to prove otherwise. Therefore, prescription did not begin to run until that date, and the special plea of prescription failed. The plaintiff gave timeous notice under the Legal Proceedings Act, and the notice was sufficient, so the special plea based on non-compliance also failed. On the merits, the court held that the standard procedure for internal fixation was not followed, as no x-ray was taken and no record was made of the missing k-wire tip. The medical staff acted negligently by failing to exercise the required duty of care, resulting in...

Court Disposition

The defendant's special pleas are dismissed. The defendant is held liable to compensate the plaintiff for harm caused by negligence of medical and hospital staff. Costs awarded to the plaintiff.

Orders

  • The defendant's special plea is dismissed with costs.
  • The defendant is held liable to compensate the plaintiff for harm caused by the negligence of medical and hospital staff at Frere Hospital in September 2004, including pain suffered and costs of removal of the k-wire tip.