The Constitutional Court in Member of the Executive Council for Health, Gauteng Provincial Government v PN recently confirmed that where a court grants an order disposing of the issue of merits in terms of Rule 33(4) of the Uniform Rules of Court, the terms of the aforesaid order do not preclude the MEC for Health ("the defendant") from raising the public healthcare and undertaking to pay defences. In doing so, the Constitutional Court confirmed the correct interpretation of the word "pay" in liability court orders, in the applicable context.
It is common for parties in medical negligence proceedings to seek a separation of merits from the quantification of the plaintiff's damages in terms of Rule 33(4), usually for purposes of convenience for both the courts and litigants. The separation orders often simultaneously resolve the issue of liability in the following terms: that, "the defendant must pay to the plaintiff 100% of the agreed or proven damages". As the public healthcare defence is increasingly raised as an alternative method of compensation, the courts have been faced with an important question as to whether the word "pay" in the merits orders simultaneously renders the manner of payment res judicata. In other words, is the effect of such orders that compensation can only be in a lump sum payment sounding in money and thus preclude the defendant from raising the public healthcare defence (that some of the plaintiff's future medical expenses be provided for in the defendant's provincial facilities instead of money) and the undertaking to pay defence (that some future medical expenses which are not available in the defendant's provincial facilities be paid for when they arise in future) ("the defences").
Preceding the Constitutional Court's decision, the Supreme Court of Appeal had earlier held that the defendant could not raise the defences after the merits had been settled on the basis that the defendant is to pay the plaintiff for her proven or agreed damages. The SCA interpreted the "ordinary grammatical meaning" of the word "pay" in the merits order to mean that both the defendant's liability and method of compensation had been settled. The consequence of the SCA judgment in cases where liability had already been settled between the parties, and where a court order granted to that effect is specific in that the defendant is ordered to "pay" the plaintiff, is that the defendant would be precluded from raising the defences at the determination of quantum and the court adjudicating quantum would be precluded from developing the common law.
The issue before the Constitutional Court was whether the liability order effectively precludes the Judge who is to determine the quantum of damages from developing the common law in terms of section 173 of the Constitution and whether such preclusion would result in implications for the State's realisation of the rights to healthcare under section 27 of the Constitution.
In its interpretation of the liability order, the Constitutional Court held that the intention of such order is to determine whether the defendant is liable to compensate the plaintiff and to what extent such compensation is to be affected. The Constitutional Court held further that the word "pay" has no influence on the manner in which the defendant is to compensate the plaintiff. This is because any liability order which uses the word "pay", will effectively have the same consequences as a liability order which does not use the word "pay".
This Constitutional Court's interpretation of the liability order has the effect that the defendant can lead evidence in support of an argument for the development of the common law, as per the judgment in MEC for Health and Social Development, Gauteng v DZ obo WZ.
Finally, it is uncertain to what extent developments in the law relating to the defences will impact on future medical negligence claims against the State. As we know, the State Liability Amendment Bill which is to provide for "structured settlements" in medical negligence claims against the State, is currently before the National Assembly. If this Bill is passed, the courts will be compelled to order payment to be paid in structured settlement, for claims exceeding R1 million.
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