In a damages claim with a twist, an elderly man who claimed millions in damages against a hospital group after he went blind in one eye following an operation, has raised a constitutional challenge after the hospital group had a private investigator monitoring him.
Nicolaas de Jager, 66, objected in the Gauteng High Court, Pretoria, about the Netcare group wanting to introduce the evidence of the private investigator in a bid to prove that De Jager’s eye was in fact not hampering his ability to lead a normal life.
De Jager, the plaintiff, submitted that the evidence of the private investigator was irrelevant, immaterial and could neither prove nor disprove the extent of his damages. If anything, it was argued on his behalf, that the hospital group violated his constitutional right to privacy.
He thus wanted the report by the private eye to be excluded as evidence in his damages case.
In the opening to his judgment, Judge Mandlenkosi Motha questioned whether programmes such as Uyajola 99 and Cheaters, to mention but a few, fell foul of section 14 of the Constitution, in their effort to “uncover the elusive and sometimes illusive truth”.
De Jager underwent a successful right eye phacoemulsification cataract extraction in 2014. Shortly afterwards, he underwent an unsuccessful left eye phacoemulsification cataract extraction at the Pretoria East Hospital. The plaintiff contracted Toxic Anterior Segment Syndrome (TASS), which resulted in blindness in his left eye.
The question of merits was settled at 100% in favour of the plaintiff. Subsequently, the hospital group made two interim payments to the tune of R4.5 million to the plaintiff for damages claimed.
De Jager later upped his initial multi-million rand damages claim, to around R25 million from the hospital group. His claim included compensation for medical expenses, loss of earnings and earning capacity, as well as general damages.
The hospital then decided to obtain the services of a private investigator, to “prove” that the damages were not as severe as De Jager claimed . A few days before the damages claim was due to proceed, De Jager raised the point that the fact that he was followed by a private investigator violated his constitutional rights.
The hospital group, meanwhile, amended its plea and among others, and in defence stated that De Jager enjoyed all daily activities of life, unaided and without assistive devices, despite being blind in his left eye.
The group further stated that he ambulated without any walking aids and did not experience loss of balance and drove his car without difficulty.
It argued that the plaintiff's participation in daily activities of his life was indicated that he lived a normal life with no impairment.
These details were obtained from their private investigator, who kept De Jager under surveillance. Judge Motha, in his judgment, gave an account of how the private investigator obtained a picture of De Jager on social media and how he then followed and observed him for some time.
As the plaintiff submitted that the surveillance amounted to the violation of his Section 14 constitutional right to privacy, the judge postponed the matter so that De Jager could comply with Rule 16A, to give notice of his constitutional challenge.
The aim is to afford any interested party an opportunity to be admitted to the proceedings as a friend of the court.
After 20 days, the court will issue a directive on the way forward, if there are any takers. If there are none, the court would proceed to finalise the judgment, Judge Motha said.
Pretoria News