The plaintiff issued summons against the defendant claiming R1,100,000.00 for alleged professional negligence by various hospitals’ doctors and nurses that treated the plaintiff. The defendant raised an exception, and the plaintiff amended her pleadings. The defendant raised a second exception on the basis that the plaintiff’s amended particulars failed to rectify the complaint, are vague and embarrassing, and lack the necessary averments to sustain a cause of action.
The plaintiff contends that it cured the complaints raised in the first exception and that the issues raised by the defendant in the second exception are technical and can be cured by evidence. The defendant submits that the plaintiff’s particulars are vague and embarrassing in that she:
- fails to allege how she learnt of the nature of her injury;
- fails to state the dates on which she was discharged from various hospitals;
- fails to state the treatment that she received;
- fails to state the alleged damaged caused by the doctors and nursing staff; and
- makes various contradictory allegations.
The court considered Rule 18(4) of the Uniform Rules of Court which provides that every pleading shall contain a clear and concise statement of the material facts upon which the pleader relies, with sufficient particularity to enable the opposite party to reply to.
In SA Motor Industy Employers’ Association v SA Bank of Athens it was held that an exception on the ground that it is vague and embarrassing can only be upheld, setting aside the summons, if the exception goes to the root of the action. The general principles relating to exceptions were outlined in Living Hands v Ditz, which are summarised as follows:
- In considering an exception, the court will accept the allegations pleaded by the plaintiff as true in assessing whether they disclose a cause
- The object of an exception is to dispose of the case or a portion thereof in an expeditious manner;
- The purpose of an exception is to raise a substantive question of law which may have the effect of settling the dispute;
- When alleging that a summons does not disclose a cause of action, it must be established that upon any construction of the particulars of claim, no cause of action is disclosed;
- A pleading must be read as a whole and an exception cannot be taken to a paragraph or a part of a pleading that is not self-contained; and
- Minor blemishes and unradical embarrassments caused by a pleading can and should be cured by further particulars.
The court held that the plaintiff’s particulars were sufficient to disclose a cause of action in that they state which hospital was the last to admit her, which hospital she was transferred from and which hospital told her that she was fully recovered. She further states when she became aware that she had not fully recovered and what happened thereafter. Her failure to not state the dates she was discharged, the number of days spent in hospital and the treatment received can be cured by requesting further particulars.
It was held that the complaints are all technical in nature and do not strike at the formulation of the cause of action. The defendant failed to establish that upon any construction of the plaintiff’s particulars, no cause of action has been disclosed, while the plaintiff raised sufficient averments to sustain her cause of action. The defendant’s exception was dismissed with costs.
This case confirmed the general principles relating to exceptions, outlining that in order to succeed with an exception, the excipient must persuade the court that upon every interpretation that the pleading can reasonably bear, no cause of action is disclosed.
Written by Wesley Pons and by Jenna Bentel