TN obo BN v Member of the Executive Council for Health, Eastern Cape (36/2017) [2020] ZAECBHC 24; [2021] 1 All SA 561 (ECB) (17 November 2020)

TN obo BN v Member of the Executive Council for Health, Eastern Cape (36/2017) [2020] ZAECBHC 24; [2021] 1 All SA 561 (ECB) (17 November 2020)

The court held that the order of 14 November 2018 did not preclude the defendant from raising the D Z defences at the quantum stage. The order only determined liability and specifically postponed quantum for later adjudication. The language of the order does not reference payment, lump sum damages, or exclusion of constitutional remedies. The separation of issues meant that the merits court had no power to decide quantum or the manner of compensation. Both parties were entitled to amend pleadings before judgment on quantum, and the defendant's intention to amend was communicated prior to the order. The D Z judgment had already established that common law could be developed to allow...

Citation
[2020] ZAECBHC 24
Parties
Applicant: T[…] N[…] obo B[…] N[]; Respondent: Member of the Executive Council for Health, Eastern Cape
Court
Eastern Cape High Court, Bhisho
Jurisdiction
South Africa
Judgment Date
17 November 2020
Case Number
36/2017
Procedural Posture
Civil Application / Interpretation of Prior Order; Separation of Issues Under Rule 33(4)
Outcome
The plaintiff's application for a declarator is dismissed. The defendant is not precluded from raising the D Z defences at the quantum stage. Costs are awarded to the defendant.
Judges
Zilwa
Legal Topics
Medical Negligence, Quantum of Damages, Public Health System Defence, Development of Common Law, Res Judicata, Constitutional Interpretation
Delict Civil Procedure Medical Negligence Quantum of Damages Public Health System Defence Development of Common Law Res Judicata Constitutional Interpretation

Case Brief

Summary, issues, holding and outcome

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Parties

T[…] N[…] obo B[…] N[]

Applicant

Member of the Executive Council for Health, Eastern Cape

Respondent

Procedural Posture

Civil Application / Interpretation of Prior Order; Separation of Issues Under Rule 33(4)

Legal Issues

  1. 1 Does the court order of 14 November 2018 preclude the defendant from raising the D Z defences at the quantum stage of the trial?
  2. 2 Is the issue of the defendant's liability and its basis res judicata by reason of the prior order?
  3. 3 Can the defendant seek development of the common law to allow for compensation in kind or periodic payments rather than lump sum damages?

Ratio Decidendi

The court held that the order of 14 November 2018 did not preclude the defendant from raising the D Z defences at the quantum stage. The order only determined liability and specifically postponed quantum for later adjudication. The language of the order does not reference payment, lump sum damages, or exclusion of constitutional remedies. The separation of issues meant that the merits court had no power to decide quantum or the manner of compensation. Both parties were entitled to amend pleadings before judgment on quantum, and the defendant's intention to amend was communicated prior to the order. The D Z judgment had already established that common law could be developed to allow...

Court Disposition

The plaintiff's application for a declarator is dismissed. The defendant is not precluded from raising the D Z defences at the quantum stage. Costs are awarded to the defendant.

Orders

  • The relief sought by the plaintiff in paragraphs 2.6.1 to 2.6.4 in the Statement of Agreed Facts and Issues to be Decided is dismissed.
  • The remaining issues in dispute, including the relief sought by the defendant in her amended plea, are referred to trial.