Question 1
Carefully read through the set of facts and then answer the question that follows.
Mr and Mrs C are a happily married couple and they have two beautiful children, aged 6 and 4. After the birth of their second child, E, the couple decided to request the doctor to sterilise Mrs C as they felt they could not afford more children. However, it turned out that their doctor, D, had not performed the procedure as agreed and Mrs C fell pregnant with the couple’s third child. They agreed that they would keep the child, F, raise him and not give him up for adoption. Mr C now wants to institute a claim for damages against Doctor D for breach of contract for an amount of R2 000 000 in respect of the costs for raising F until he was 18 years old and/or self-sufficient. Mr C also wants to institute a claim for R500 000 against Doctor D for the pain and suffering, as well as loss of amenities of life that his wife suffered as a result of the pregnancy and birth of F.
Write an essay in which you advise Mr C on his prospects of success with these claims. In your answer you must discuss in detail one of your prescribed cases that deals with a similar issue. You must also discuss the relationship between medical professionals and patients in relation to this set of facts.
Marks will be awarded as follows:
- Identifying the case correctly. (1)
- Discussion of the facts of the case. (3)
- Correctly identifying the legal question(s) (2), the ratio decidendi and judgment. (8)
- A discussion of the relationship between the medical practitioner and the patient (i.e. the client). (6)
- And finally, your conclusion whether Mr C will succeed with his claim based on your discussion. (4)
Question 2
M is a well-known lecturer at a South African university, Stadio. K, one of his students, does not like him as she is of the opinion that he was prejudiced towards her in the exam. As a result of this, she posted on Facebook that he sexually assaulted her. Subsequently, M’s career has been damaged and he has been suspended by the university, pending an investigation. He also does private work for another company and after the Facebook posts, this position was terminated. M, who is convinced of his innocence, approaches you, as his attorney, to advise him on his success to claim compensation for damages resulting for defamation. Fully advise him on his chances of success. In your answer you have to refer to recent case law.
Question 3
Every morning of the week, B crosses the R21 Highway from Thembisa to catch a minibus taxi on the opposite side to get to work in Kempton Park where he works as a waiter at the Easy Coffee Shop and Deli. He always manages to avoid the oncoming traffic from both sides. However, on the morning of 7 October 2020 he misjudged the traffic and was hit by a Mahindra SUV. The driver of the Mahindra did everything he could to avoid hitting B; he swerved and tried to break, but he still hit B. B was flung into the air by the impact and landed on his left side. As a result of the accident B suffered concussion, his left femur was fractured and dislocated his shoulder. B was unconscious when he was taken to the Thembisa hospital by ambulance. On arrival at the hospital, he was immediately taken for surgery where an open reduction and internal fixation was performed on him.
The hospital charged him R10 000 per night and he spent 7 nights in hospital, while the surgeon charged him R50 000 for the surgery. The ambulance fee was R5000. B would need to go for physiotherapy twice a week for 8 weeks after the surgery. The physiotherapist charged R1 000 per session. He had to take a taxi to get to the physiotherapist. It cost him R50 to the physiotherapist and another R50 to get home. To add insult to injury, he would not be able to work for 8 weeks. His employer has a no-work-no-pay policy and he also relies on tips from customers to supplement his income. He earns R1 500 per week as a waiter, but this is supplemented by R3 500 per week that he earns from tips. He would like to know from his attorney whom he instructed to institute a claim against the RAF whether he would be able to claim for the bodily injuries he suffered. The attorney informed him that usually the amounts awarded are very conservative and that comparable awards amounted to R50 000.
3.1 Draw a table in which you indicate (1) the claims, (2) categorise the different claims, (3) indicate whether they resort under general or special damages and (4) the amounts that B may claim from the RAF.
3.2 Use the same set of facts, but this time assume that the court held that B was 70% negligent. How would this influence his claim?