Paul v ER Consulting Incorporated and Another (22932/2014) [2018] ZAGPPHC 827 (17 October 2018)

Paul v ER Consulting Incorporated and Another (22932/2014) [2018] ZAGPPHC 827 (17 October 2018)

The court found that the plaintiff had both actual and constructive knowledge of the identity of the debtor and the material facts giving rise to the debt by 26 March 2011, the date of his son's death. The hospital records and relevant information were freely available to him, and he could have obtained any additional facts with reasonable care. The post-mortem report, received in June 2011, did not reveal new facts or apportion blame, merely confirming the cause of death. The plaintiff's delay in instituting proceedings was not justified by the evidence, and the court held that prescription commenced on 26 March 2011. As more than three years had elapsed before summons was issued on 25...

Citation
[2018] ZAGPPHC 827
Parties
Plaintiff: Alton Paul; Defendant: ER Consulting Incorporated; Defendant: Netcare Olivedale Hospital (Pty) Ltd; Defendant: Dr Geetesh M Vala
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
17 October 2018
Case Number
22932/2014
Procedural Posture
Civil Trial / Special Plea of Prescription Separated and Determined Before Merits.
Outcome
Plaintiff's claim dismissed with costs.
Judges
Moshidi
Legal Topics
Prescription Act, Special Plea of Prescription, Commencement of Prescription, Knowledge of Debt, Reasonable Care, Hospital Negligence
Civil Procedure Prescription Act Special Plea of Prescription Commencement of Prescription Knowledge of Debt Reasonable Care Hospital Negligence

Case Brief

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Parties

Alton Paul

Plaintiff

ER Consulting Incorporated

Defendant

Netcare Olivedale Hospital (Pty) Ltd

Defendant

Dr Geetesh M Vala

Defendant

Procedural Posture

Civil Trial / Special Plea of Prescription Separated and Determined Before Merits.

Legal Issues

  1. 1 Whether the plaintiff's claim against the second defendant has become prescribed under the Prescription Act.
  2. 2 When prescription commenced to run in respect of the plaintiff's claim for damages following the death of his son.
  3. 3 Whether the plaintiff had knowledge of the facts giving rise to the debt and the identity of the debtor as required by section 12(3) of the Prescription Act.

Ratio Decidendi

The court found that the plaintiff had both actual and constructive knowledge of the identity of the debtor and the material facts giving rise to the debt by 26 March 2011, the date of his son's death. The hospital records and relevant information were freely available to him, and he could have obtained any additional facts with reasonable care. The post-mortem report, received in June 2011, did not reveal new facts or apportion blame, merely confirming the cause of death. The plaintiff's delay in instituting proceedings was not justified by the evidence, and the court held that prescription commenced on 26 March 2011. As more than three years had elapsed before summons was issued on 25...

Court Disposition

Plaintiff's claim dismissed with costs.

Orders

  • The plaintiff's claim is dismissed with costs.