Eye surgery mishap victim challenges PI’S role in investigation

AN ELDERLY man who claimed millions in damages against a hospital group after he went blind in one eye following an operation has objected to the court accepting the forensic report submitted by the hospital group after it had a private investigator monitor him.

Nicolaas de Jager, 66, objected in the Gauteng High Court, Pretoria, to the introduction by Netcare of 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.

His lawyer, Conrad van der Vyver, submitted that the hospital group had violated the constitutional rights of De Jager, his wife, children and grandchild by having them followed and their movements recorded.

On March 18, 2014, he was admitted to the Netcare Pretoria East Hospital for a cataract operation and lens implantation. The operation was, however, unsuccessful, and De Jager is now permanently blind in his left eye.

He still has good vision in his right eye.

De Jager was a sole member of a close corporation specialising in the manufacture, procurement and installation of specialised baking equipment. He is an electrical and wiring specialist by occupation.

De Jager says he has been unable to continue with his profession, and all of his existing contracts have been cancelled. He is claiming damages for loss of income/income capacity, as well as future loss of income and the capacity to earn a living.

The question of merit was settled in favour of De Jager, with the hospital group making two interim payments totalling R4.5 million to the plaintiff for damages.

De Jager later upped his initial claim to around R25m. His claim included compensation for medical expenses, loss of earnings and earning capacity, in addition to general damages.

The hospital then hired a private investigator, to “prove” that the damages were not as severe as De Jager claimed. The investigators recorded that De Jager used no walking aids at any time while under observation.

It also made a number of other observations regarding his movements and those of his family, including his grandchild, in a bid to prove that he was not as severely injured as he claimed. Objecting to the introduction of this evidence, De Jager’s legal team argued that Netcare had conducted unsanctioned surveillance in violation of his right to privacy, as well as that of his family.

They told the court that less intrusive means were available to the hospital group, such as obtaining expert medical reports regarding his existing condition.

De Jager and his team also objected to the use of experts, on the basis that the observations by the private forensic investigators did not constitute expert evidence and that their evidence was immaterial and irrelevant to the dispute before the court.

Judgment was reserved on the question of the admissiblity of evidence.

Meanwhile, in the latest development in the saga and in a separate matter, De Jager and his family are further claiming millions in damages from the hospital group after they claimed that the private investigators had invaded their privacy.

They said the pictures and video footage taken of them and their movements, including that of their little grandson, were published in the public domain without their consent as it formed part of the public court file.

They said this infringed on the terms of Protection of Public Information Act and violated their rights.

Van der Vyver said the hospital group had indicated that it would defend the damages claim, but it had not yet filed its defence.