The plaintiff in this matter is seeking to recover damages from the defendant, a general medical practitioner. The plaintiff alleges that the defendant was negligent in that the defendant failed to properly diagnose the plaintiff’s stroke. In the second claim, the plaintiff seeks to recover damages for the failure of the defendant to properly treat the unitary tract condition.
During the Rule 37(8) of the Uniform Rules of Court pre-trial conference, it was held that the issues of the merits and quantum would be separated in accordance with Rule 33(4) of the Uniform Rules of Court. However, following the pre-trial conference, it was found that the parties shared a difference in opinion concerning the scope of the separation that they initially agreed on.
The plaintiff contended that the separation of issues would be limited to the factual merits as reflected in the joint minutes of experts from the pre-trial conference. The defendant argued, however, that considering the notion of merits in the context of delictual claim, connotes “liability”. This means that the plaintiff would have to thoroughly prove all elements of a delict, in order to render the defendant liable in terms of such.
In argument, counsel for the plaintiff contended that the purpose of Rule 33(4) is to determine the plaintiff’s claim without the costs and delays of a full trial and that the intention of the process is to ensure a convenient and expeditious disposal of litigation.
The court considered the case of Denel (Edms) Bpk v Vorster where it was held that Rule 33(4) entitles courts to try issues separately in
appropriate circumstances. It shouldn’t be assumed that results will be achieved by separating the issues, as some issues can be found to be inextricably linked, when at first sight they appeared to be discrete. The best way to decide on separating the issues is only after thought has been given to the whole matter at hand. This case also clarified the approach to be adopted in relation to the ambit of the terms agreed upon by the parties, merits and quantum. It held that it is the duty of that Court to ensure that the issue to be tried is clearly circumscribed, if it satisfied that it is proper to make such an order.
Counsel for the defendant argued that the SCA has expressed some criticism in courts granting generalised and non-specific orders in relation to the separation of issues. To substantiate the above assertion, reference was made to the case of Odinfin (Pty) Ltd v Reynecke where the court held that judges are not compelled to agree to separation of issues simply because the parties to the matter have agreed to do so. Should the separation be approved, the court should ensure that the terms of the agreement are clear.
Furthermore, the defendants counsel referred to the case of Stedall and Another v Aspeling and Another suggesting that the plaintiff would be mistaken in imputing a limitation to what constitutes “merits”. The case suggests that the court should consider all relevant factors as to what would constitute delictual liability and not just negligence, as there are other elements to be taken into consideration. In support of the above, the case of MTO Forestry (Pty) Ltd v Swart NO explicitly mentioned all five elements of a delict and that the plaintiff would have to prove same.
The court held that the non-specific separation with unclear terms would attract the same criticism as evidenced in the above cases. Therefore, it would be prudent to prove all elements of delictual liability.
Separation of issues in a trial is not just restricted to the agreement by the parties concerned.
Written by Puseletso Radebe and supervised by Nicola Du Toit, 16 July 2018