Dutton - Medical Malpractice in SA

THE PRACTITIONER’S GUIDE TO

Medical Malpractice

IN SOUTH AFRICAN LAW

The Practitioner’s Guide to

Medical Malpractice

IN SOUTH AFRICAN LAW

Ian Dutton

BA LLB (Natal)

Advocate of the High Court of South Africa

2015

First published 2015

by

PO Box 30702

Tokai 7966

Cape Town

SOUTH AFRICA

www.siberink.co.za

ISBN (print edition): 978-1-920025-93-9

ISBN (epub): 978-1-920025-94-6

ISBN (pdf ebook): 978-1-920025-95-3

This work is copyright under the Berne Convention.

In terms of the Copyright Act 98 of 1978 no part

of this work may be reproduced or transmitted in

any form or by any means, electronic or mechanical,

including photo copying, recording or by any information

storage and retrieval system, without permission

in writing from the Publisher.

Typeset by GJ du Toit

Cover design by Nic Jooste, Comet Design

Printed by Creda Communications, Cape Town

Foreword

by Judge Neels Claassen

The law is an inexact science. Finding the appropriate law is sometimes a daunting

task, even for professionals. The problem is, however, that of all disciplines the

law is the one that stretches its tentacles far and wide into all spheres of human

endeavour, and more so in the medical discipline. The law touches the lives and

practices of all medical professionals. In my forty years’ experience at the bar and

on the bench, I have seen the frustrations of lawyers with medical practitioners

and vice versa. The courts have become clogged with medico-legal cases. There

has been an alarming increase in the quantity and quantum of medico-legal

cases during the past 10 years. The negative effects of this escalation are to be

seen in the exorbitant costs to the nation’s healthcare industry which, naturally,

has a detrimental effect on the effectiveness and standards of healthcare offered

to patients.

Much blame for this crisis has been laid at the door of lawyers, medical practitioners,

state health institutions, training institutions and others. Playing the

blame game is not going to solve the crisis to the satisfaction of the beneficiaries

of healthcare services. The average patient has little, if any, interest in the cause

of the high costs of medical services and the high costs and extraordinary delays

of the legal remedies available to them. What is needed from their point of view

are drastic solutions which would make their lives less complicated when they are

in need of medical and/or legal remedies.

One of the best ways to meet this crisis head-on, is to arrive at a better understanding

of the medical and legal implications of any particular medico-legal

problem. To the lay patient, the medical science affecting his or her predicament

is in itself a substantial hurdle to understanding. Add to that the intricacies of

the inexactitude of the law, and one easily realises why patients are despondent

about their chances of being treated fairly by these two disciplines when they

cross swords. The disciplines of law and medical science usually meet on the battlefield

of claims instituted in court. It is in that arena that the patient often feels

let down by either the lawyers or the medical practitioners or both.

It is, therefore, a refreshing breeze of hope when an experienced lawyer such

as Advocate Dutton puts in writing a clear description of the fundamental principles

involved in the litigation of medico-legal claims in court. He has set out using

layman’s language what patients, lawyers and medical practitioners can expect

when they become embroiled in court proceedings. This guide will be helpful

to these three main role players in any medico-legal litigation. I do believe that

a better understanding of the requirements placed upon participants in legal

proceedings will go a long way to establishing a better appreciation of the pitfalls

and risks involved in litigation. It may very well also assist in the shortening and/

v

vi

Medical Malpractice in South African Law

or settlement of such legal proceedings. Should this be the result of this exposé

of the law of medico-legal claims, Advocate Dutton will be justly commended for

the contribution which his writing has made to the benefit of all concerned with

medico-legal problems.

Neels Claassen

B Com (Pret), LL B (Pret) (Cum Laude), LL M (Rau) (Cum Laude), Commercial Mediation (UCT)

Retired judge of the High Court of South Africa

Chairperson of the South African Medico-Legal Society

Foreword

by Dr Herman Edeling

If women are from Venus and men from Mars, the planets from which lawyers

and doctors derive must be even further apart. Advocate Ian Dutton is to be

highly commended for his foundational work in building bridges. He has condensed

a large body of law and legal principles into a manageable book, providing

doctors also with some insight into how the law evolves and how lawyers think.

Having grown up in a scientific environment, doctors find it difficult to read

law and works written by lawyers. Apart from anything else, in order to follow

legal jargon it is necessary to frame it in a legal context, which of course doctors

do not have. In this book Adv. Dutton has gone to considerable lengths to present

the law and legal principles in ways that are more easily accessible to doctors. In

particular, chapter 2 and the highlighted passages within the book enable ease

of understanding

Chapter 1 eloquently introduces the complexities in the law and the methods

of its development. One is drawn to the conclusion that even the law does not

know what it will be tomorrow. How is a busy doctor to keep tabs on the legal

convictions of the community and the evolving findings of legal policy makers?

More pertinently, how is he or she to steer clear of litigation in such an unknowable

and unpredictable environment?

Having worked closely with lawyers and doctors for many years, and despite

having encountered bad doctors, bad attorneys, bad advocates and bad judges, I

am left with the firm conviction that both Medicine and Law are noble professions.

Both professions are based on ethical norms and both hold themselves to

a high standard. In my experience the majority of practitioners exhibit learning,

integrity and responsible dedication to service.

Medical ethics, and doctors themselves, expect of doctors to treat their

patients according to a high standard. In my experience the expectation of the

law is the same, but the demand of the law, to treat patients according to a reasonable

standard, is more lenient. The law does not punish doctors for not knowing

or understanding the complexities of the law. Nor does it punish doctors for

bad outcomes, or even for making mistakes. It punishes them when their professional

behaviour is considered to have descended into the realms of unjustifiable

assault, unreasonable neglect or error that, under the prevailing circumstances,

could and should have been prevented; and then only when such malpractice has

resulted in demonstrable permanent harm.

If this experience holds true, doctors should have nothing to fear of the law.

Reflecting on what the law expects and demands of doctors, lawyers and legal

policy makers should be mindful of the expectation of doctors that the law should

be just, and that at the very least the application of the law should be reasonable.

vii

viii


Viewing this book as a foundational work, I urge Adv Dutton to collaborate

with doctors, particularly in high-risk disciplines, in writing companion works in

medical language. The general principles alluded to above should be considered

and corrected or expanded upon. In addition, guiding principles in specific disciplines

should be formulated and illustrated with actual case reports and judgments.

One trusts that Adv. Dutton has the fortitude to complete the bridge he

has started building.

Herman Edeling

MB B Ch (Wits) FCS (SA) (Neuro) CIME (ABIME)

Neurosurgeon in Private Medico-Legal Practice

Chairperson of HPCSA Serious Injuries Appeal Tribunal

Deputy Chairperson of South African Medico-Legal Society

Preface

Medical malpractice law is particularly challenging. The subject matter by its

very nature covers a wide range of legal, medical and ethical areas of expertise.

In recent years, it has become essential for medical as well as legal practitioners

to have a sound understanding of the core principles of medical malpractice law.

This book sets out those principles. For medical practitioners, the key aspects of

the text have been highlighted by means of a dotted line in the margin. It is recommended

that medical practitioners initially master those concepts and understand

the overall context of the subject, before engaging with the more detailed

discussions set out elsewhere.

Books such as these must of necessity merge too many subjects for one person

to master in a lifetime. Therefore, since we are not immortal, it is inevitable that

in writing this book I have spent less time on any one part than those who

concentrate on an individual aspect; in that sense, this has been a community

effort. Gratitude is therefore due to the many judges, fellow practitioners and

academics who understand a particular individual subject better than I do, and

who may have expressed particular concepts better than I have; appreciation is

due to them for the considerable efforts and abilities which have contributed to

this work being produced.

I have, in presenting cases throughout my practice at the Bar, had the privilege

of dealing with a wide variety of experts. I have come to regard my role in

such matters as being akin to that of the conductor of an orchestra — my contribution

is not in mastering each individual instrument, but in organising and presenting

the overall performance coherently and effectively. I have attempted, in

this work, to achieve the same result by the same method. Finally, a few words of

sincere appreciation are called for: to my wife Nomé, my parents and my family,

for their unwavering patience and support; to Shanna Campbell for her assistance

in checking the footnoting; to Bianca Matches for her industry in preparing

the manuscript; to Simon Sephton of SiberInk for his commitment to this

project; and, finally, to all my colleagues, but especially Raymond Meneses, Paul

Schumann and Steve Shepstone, for their intellectual contributions, and to Judge

Claassen and Dr Edeling for kindly providing the Forewords.

ix

Contents

Foreword by Judge Neels Claassen . . . . . . . . . . . . . . . . . . . . . . . . v

Foreword by Dr Herman Edeling . . . . . . . . . . . . . . . . . . . . . . . . vii

Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix

Table of Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiii

Table of Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .xix

Chapter 1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

Chapter 2. An Overview for Medical Practitioners . . . . . . . . . . . . . . .5

Chapter 3. Causes of Action . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Chapter 4. Unlawfulness (Wrongfulness) . . . . . . . . . . . . . . . . . . . 30

Chapter 5. Causation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

Chapter 6. Fault . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .79

Precedents

1. The Aquilian Action. . . . . . . . . . . . . . . . . . . . . . . . . . . . 115

2. Pain and Suffering. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117

3. Claim for Negligence for Misdiagnosis . . . . . . . . . . . . . . . . . . 119

4. Claim for Negligence against a Novice . . . . . . . . . . . . . . . . . . 121

5. Misdiagnosis or Failure to Diagnose . . . . . . . . . . . . . . . . . . . 123

6. Failure to Refer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125

7. Claim for Negligent Failure to Render Post‐Operative Care . . . . . . . 127

8. Professional Error of Judgment . . . . . . . . . . . . . . . . . . . . . . 129

9. Imperitia Culpae Adnumeratur . . . . . . . . . . . . . . . . . . . . . . . 131

10. General Surgery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133

11. Plastic Surgery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135

Index. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137

xi

Table of Cases

Administrateur, Natal v Trust Bank van Afrika

Bpk 1979 (3) SA 824 (A) … 13, 30, 41

Administrateur, Transvaal v Van der Merwe

1994 (4) SA 347 (A) … 49

Administrator, Natal v Edouard 1990 (3) SA

581 (A) … 14, 24, 25, 38, 44, 48

Afrox Healthcare Bpk v Strydom 2002 (6) SA

21 (SCA) … 111

Allied Maples Group Ltd v Simmons &

Simmons (A Firm) [1995] 1 WLR 1602 … 70

Allott v Paterson and Jackson 1936 SR 221 …

101

Alston and Another v Marine and Trade

Insurance Co. Ltd 1964 (4) SA 112 (W) … 61,

63, 65

Amod v Multilateral Motor Vehicle Accidents

Fund (Commissioner for Gender Equality

Intervening) 1999 (4) SA 1319 (SCA) … 24,

25

Arndt v Smith [1996] 7 Med LR 108 … 43

Arthur v Bezuidenhout and Mieny 1962 (2)

SA 566 (A) … 112

Ashcroft v Mersey Regional Health Authority

[1983] 2 All ER 245 … 66, 68, 70

Athey v Leonati [1996] 3 SCR 458 … 71

Avonmore Supermarket CC v Venter 2014 (5)

SA 399 (SCA) … 94, 96

Baker v Willoughby [1970] AC 467 … 68

Barker v Corus UK Limited [2006] 3 All ER

785 … 68

Barnett v Chelsea and Kensington Hospital

Management Committee [1968] 1 All ER

1068 … 50, 59, 65, 104

Bayer South Africa (Pty) Ltd v Viljoen 1990

(2) SA 647 (A) … 112

Bennett v Minister of Police and Another

1980 (3) SA 24 (C) … 23, 82

Bester v Commercial Union

Versekeringsmaatskappy van SA Bpk 1973

(1) SA 769 (A) … 11, 16, 23

Blaikie and Others v The British Transport

Commission 1961 SC 44 … 75

Blyth v Van den Heever 1980 (1) SA 191 (A) …

50, 59, 62, 64, 65, 90, 105, 112, 128

BOE Bank Limited v Ries 2002 (2) SA 39 (SCA)

… 27

Bolam v Friern Hospital Management

Committee [1957] 2 All ER 118 … 50, 93

Bolitho v City and Hackney Health Authority

[1997] 4 ALL ER 771 … 93

Brooks v The Minister of Safety and Security

2009 (2) SA 94 (SCA) … 24, 25

Broude v McIntosh 1998 (3) SA 60 (SCA) …

11, 50, 52, 79, 112

Bruggeman v Schimke 718 P 2d 635 (Kan,

1986) … 43

Buls v Tsatsarolakis 1976 (2) SA 891 (T) … 79,

90, 123

Burger v Union National South British Ins Co

1975 (4) SA 72 (W) … 70

Burton v Islington Health Authority, de

Martell v Merton and Sutton Health

Authority [1992] 3 All ER 833 … 40

Buthelezi v Ndaba 2013 (5) SA 437 (SCA) …

70, 79, 110, 112

Campbell v Ord and Maddison (1873) IR 149,

… 88

Cape Empowerment Trust Ltd v Fisher

Hoffman Sithole 2013 (5) SA 183 (SCA) … 13

Cape Town Council v Jacobs 1917 AD 615 …

28

Cape Town Municipality v Bakkerud 2000 (3)

SA 1049 (SCA) … 31, 33, 37, 46, 49

Cape Town Municipality v Butters 1996 (1) SA

473 (C) … 97

Carmichele v Minister of Safety and Security

and Another (Centre for Applied Legal

Studies Intervening) 2001 (4) SA 938 (CC) …

34, 49, 64, 72

Cassidy v Ministry of Health [1951] 2 KB 343

… 112

Castell v De Greef 1993 (3) SA 501 (C) … 17,

38, 50, 101, 110

Castell v De Greef 1994 (4) SA 408 (C) … 50,

51, 53, 54, 56, 94, 101, 135

Cathkin Park Hotel v JD Makesch Architects

1993 (2) SA 98 (W) … 49

Chester v Afshar [2004] 3 WLR 927 … 59, 66,

67, 68, 72

xiii

xiv


Chin Keow v Government of Malaysia [1967]

1 WLR 813 … 103

Christian Lawyers Association v Minister of

Health (Reproductive Health Alliance as

Amicus Curiae) 2005 (1) SA 509 (T) … 55, 56

Clarke v Hurst NO and Others 1992 (4) SA

630 (D) … 30, 38, 58, 59, 75, 77, 84

Clark v MacLennan [1983] 1 All ER 416 … 68,

70

Clinton-Parker v Administrator, Transvaal;

Dawkins v Administrator, Transvaal 1996 (2)

SA 37 (W) … 59, 75, 76, 78

Coles v Reading and District Hospital

Management Committee (1963) (107) Sol Jo

115 … 104

Collins v Administrator, Cape 1995 (4) SA 73

(C) … 79, 98

Coppen v Impey 1916 CPD 309 … 59, 79, 104,

107

Coronation Brick (Pty) Ltd v Strachan

Construction Co (Pty) Ltd 1982 (4) SA 371

(D) … 17, 27

Country Cloud Trading CC v MEC,

Department of Infrastructure Development

2014 (2) SA 214 (SCA) … 13, 18, 30, 32, 35,

83, 111

Country Cloud Trading CC v MEC,

Department of Infrastructure Development

2015 (1) SA 1 (CC) … 13, 79

Crivon v Barnet Group Hospital Management

Committee (1959) The Times, 19 November

… 104

Crown Chickens (Pty) Ltd t/a Rocklands

Poultry v Rieck 2007 (2) SA 118 (SCA) … 30,

36, 57, 58

Custom Credit Corporation (Pty) Ltd v

Shembe 1972 (3) SA 462 (A) … 28

C v Minister of Correctional Services 1996 (4)

SA 292 (T) … 22, 56, 79, 82

Dale v Hamilton 1924 WLD 184 … 79, 91,

108, 131

Dantex Investment Holdings (Pty) Ltd v

Brenner and Others NNO 1989 (1) SA 390

(A) … 13, 30, 83

De Klerk v ABSA Bank Ltd and Others 2003

(4) SA 315 (SCA) … 70

Dube v Administrator, Transvaal 1963 (4) SA

260 (W) … 50, 101, 102, 103, 128

Du Plessis v De Klerk 1996 (3) SA 850 (CC) …

72

Durr v ABSA Bank Ltd 1997 (3) SA 448 (SCA)

… 90, 92, 93

Duval v Seguin (1972) 26 DLR (3D) 418 … 40

Duval v Seguin (1973) 40 DLR (3d) 666 … 40

Edouard v Administrator, Natal 1989 (2) SA

368 (D) … 11, 14, 30

E R v Salituro [1991] 3 SCR 654 … 72

Eskom Holdings v Hendricks 2005 (5) SA 503

(SCA) … 79, 89

Esterhuizen v Administrator, Transvaal 1957

(3) SA 710 (T) … 50, 57, 79, 83, 84

Evins v Shield Insurance Co Ltd 1980 (2) SA

814 (A) … 11, 16, 17, 23, 24, 25, 26, 27, 28

Faircape Property Developers (Pty) Ltd v

Premier, Western Cape 2003 (6) SA 13 (SCA)

… 33, 39, 86

Fairchild v Glenhaven Funeral Services

Limited [2002] 3 All ER 305 … 59, 66, 68, 69

Financial Mail (Pty) Ltd and Others v Sage

Holdings Ltd and Another 1993 (2) SA 451

(A) … 21, 22

Fose v Minister of Safety and Security 1997

(3) SA 786 (CC) … 34

Fourway Haulage SA (Pty) Ltd v SA National

Roads Agency Limited 2009 (2) SA 150 (SCA)

… 13, 30, 31

Fradd v Jaquelin (1882) 3 NLR 144 … 81

Friedman v Glicksman 1996 (1) SA 1134 (W)

… 25, 30, 41, 42, 44

F v Minister of Safety and Security and

Others 2012 (1) SA 536 (CC) … 13, 33

F v R (1983) 33 SASR 189 … 54

Geary & Son (Pty) Ltd v Gove 1964 (1) SA 434

(A) … 23, 30, 83

Gibson v Berkowitz 1996 (4) SA 1029 (W) …

59, 75, 78

Gluckman v Schneider 1936 AD 151 … 83

Goliath v MEC for Health, Eastern Cape 2015

(2) SA 97 (SCA) … 70, 112, 113

Gouda Boerdery BK v Transnet 2005 (5) SA

490 (SCA) … 13, 30, 37

Government of the Republic of South Africa v

Basdeo 1996 (1) SA 355 (A) … 37

Gregg v Scott [2005] 4 All ER 812 HL … 63,

67, 70, 71, 72

Gregory v Pembrokeshire Health Authority

[1989] 1 Med LR 81 … 43

Groenewald v Conradie 1965 (1) SA 184 (A)

… 112

Groenewald v Groenewald 1998 (2) SA 1106

(A) … 76

Table of Cases

xv

Harriton v Stephens [2004] NSWCA 93 … 43

Hawekwa Youth Camp and Another v Byrne

2010 (6) SA 83 (SCA) … 30, 34

Hay v B and Others 2003 (3) SA 492 (W) …

5, 58

Hay v Bourhill and Young 1943 AC 92 … 77

Herschel v Mrupe 1954 (3) SA 464 (A) … 31,

87

Hoffa v SA Mutual Fire and General Insurance

Co Ltd 1965 (2) SA 944 (C) … 11, 15, 18, 23,

24, 28

Hotson v East Berkshire Health Authority

[1987] 2 All ER 909 … 72

Hucks v Cole [1968] 118 ULJ; ; [1993] 4 Med

LR 393 … 110

H v Fetal Assessment Centre 2015 (2) SA 193

(CC) … 27, 34, 35, 39, 43, 45

Indac Electronics (Pty) Ltd v Volkskas Bank

Ltd 1992 (1) SA 783 (A) … 13, 27

Insurance Co Ltd v Van Gool NO 1992 (4) SA

61 (A) … 24

International Shipping Company (Pty) Ltd

v Bentley 1990 (1) SA 680 (A) … 59, 60, 61,

74, 76

Jackson v SA National Institute for Crime

Prevention and Rehabilitation of Offenders

1976 (3) SA 1 (A) … 20

Jameson’s Minors v Central South African

Railways 1908 TS 575 … 11, 25

Jansen van Vuuren and Another NNO v

Kruger 1993 (4) SA 842 (A) … 11, 14, 20, 21,

22, 23, 48, 85

Jansen van Vuuren v Kruger 1993 (4) SA 842

(A) … 92

Jones NO v Santam Bpk 1965 (2) SA 542 (A)

… 88

Jones v Kaney [2011] 2 WLR 823 … 92

Jones v Manchester Corporation [1952] 2 All

ER 125 … 99

Jones v Santam 1965 (2) SA 542 (A) … 88

Knop v Johannesburg City Council 1995 (2)

SA 1 (A) … 13, 33, 35

Kovalsky v Kriege (1910) 20 CTR 822 … 102

Kranz v M’Cutcheon (1920) 18 Ontario WN

395 … 70

Kruger v Carlton Paper of SA Ltd 2002 (2) SA

335 (SCA) … 96

Kruger v Coetzee 1966 (2) SA 428 (A) … 35,

79, 86, 87, 94, 95, 96

Kruger v Van der Merwe 1966 (2) SA 266 (A)

… 94, 95

K v Minister of Safety and Security 2005 (6)

SA 419 (CC) … 35

Lee v Minister of Correctional Services 2013

(2) SA 144 (CC) … 59, 60, 61, 66, 68, 69, 71,

72

Legal Insurance Co v Botes 1963 (1) SA 608

(A) … 25

Le Roux v Dey 2010 (4) SA 210 (SCA) … 22, 82

Le Roux v Dey (Freedom of Expression

Institute and Authorative Justice Centre as

Amici Curiae 2011 (3) SA 274 (CC) … 13, 29,

30, 33, 82, 83

Lillicrap, Wassenaar and Partners v

Pilkington Brothers (SA) (Pty) Ltd 1985 (1)

SA 475 (A) … 11, 13, 14, 15, 18, 27, 31, 38,

46, 47, 48

Local Transitional Council of Delmas and

Another v Boshoff 2005 (5) SA 514 (SCA) …

13

Loureiro and Others v Imvula Quality

Protection (Pty) Limited 2014 (3) SA 394

(CC) … 30, 79, 111

Louwrens v Oldwage 2006 (2) SA 161 (SCA)

… 54, 94

Lymbery v Jefferies [1925] AD 236 … 101, 106

Mabaso v Felix 1981 (3) SA 865 (A) … 27

Mafesa v Parity Versekeringsmaatskappy Bpk

(in Likwidasie) 1968 (2) SA 603 (O) … 59,

64, 74

Magware-v-Minister of Health NO 1981 (4) SA

472 (Z) … 50

Mahon v Osborne [1939] 2 KB 14 … 70

Makgae v Sentraboer 1981 (4) SA 239 (T) … 11

Mallett v McMonagle [1970] AC 166 … 63

March v E & MH Stramare Pty Ltd (1991) 171

CLR 506 … 68

Matthews v Young 1922 AD 492 … 17, 28

McDonald v Wroe [2006] 3 All SA 565 (C) …

41, 43, 59, 106, 125

McGhee v National Coal Board [1972] 3 All

ER 1008 … 59, 68, 70, 71

McIntosh v Premier, KwaZulu-Natal 2008 (6)

SA 1 (SCA) … 30, 35

McKay v Essex Area Health Authority [1982] 2

ALL ER 771, CA … 43

McKenzie v Farmers’ Co-Operative Meat

Industries Ltd 1922 AD 16 … 11

Medical, Dental and Supplementary Health

Service Professions Act 56 of 1974 … 56

xvi


Michael v Linksfield Park Clinic (Pty) Ltd

2001 (3) SA 1188 (SCA) … 59, 79, 90, 92, 93,

94

Millward v Glaser 1949 (4) SA 931 (A) … 16

Minister of Finance and Others v Gore NO

2007 (1) SA 111 (SCA) … 13, 59, 62, 63, 64,

82

Minister of Justice v Hofmeyr 1993 (3) SA 131

(A) … 18, 19, 21, 22, 83

Minister of Law and Order v Kadir 1995 (1) SA

303 (A) … 34

Minister of Police v Mbilini 1983 (3) SA 705

(A) … 19

Minister of Police v Skosana 1977 (1) SA 31 (A)

… 49, 59, 60, 61, 76

Minister of Polisie v Ewels 1975 (3) SA 590 (A)

… 32, 33, 34

Minister of Safety and Security and Another v

Carmichele 2004 (3) SA 305 (SCA) … 64

Minister of Safety and Security v Madyibi

2010 (2) SA 356 (SCA) … 24

Minister of Safety and Security v Scott and

Another 2014 (6) SA 1 (SCA) … 18, 94

Minister of Safety and Security v Van

Duivenboden 2002 (6) SA 431 (SCA) … 30,

35, 36, 37, 38, 47, 49, 62, 63, 64, 86, 96

Minister van Justisie, Ex parte In re: S v

Grotjohn 1970 (2) SA 355 (A) … 12, 84

Minister van Polisie v Ewels 1975 (3) SA 590

(A) … 30, 31, 33, 48

Minister van Veiligheid en Sekuriteit v

Geldenhuys 2004 (1) SA 515 (SCA) … 49, 63

Mitchell v Dixon 1914 AD 519 … 79, 89, 90,

104, 119

Mkhatswa v Minister of Defence 2000 (1) SA

1104 (SCA) … 94, 95

Moses v Minister of Safety and Security 2000

(3) SA 106 (C) … 49

Mukheiber v Raath and Another 1999 (3) SA

1065 (SCA) … 25, 30, 39, 41, 42, 59, 60, 74,

75, 76, 86, 94, 95

National Media Ltd v Bogoshi 1998 (4) SA

1196 (SCA) … 37

Ndlovu v Road Accident Fund 2014 (1) SA 415

(GSJ) … 92

Ngubane v South African Transport Services

1991 (1) SA 756 (A) … 23, 96

Nonkwali v Road Accident Fund 2009 (4) SA

333 (SCA) … 27

Ocean Accident and Guarantee Corporation

Ltd v Koch 1963 (4) SA 147 (A) … 64, 65, 94,

95

Olitzki Property Holdings v State Tender

Board and Another 2001 (3) SA 1247 (SCA)

… 31, 49

Osborne Panama SA v Shell & BP South

African Petroleum Refineries (Pty) Ltd 1982

(4) SA 890 (A) … 112

Oslo Land Co Ltd v The Union Government

1938 AD 584 … 28

Overseas Tankship (UK) Limited v Morts Dick

and Engineering Company Limited [1961] 1

ALL ER 404 (PC) … 39

Overseas Tankship (UK) Ltd v Morts Dock &

Engineering Co Ltd (The Wagon Mound)

1961 AC 388 … 96

Paixão and Another v Road Accident Fund

2012 (6) SA 377 (SCA) … 24

Pilkington Brothers SA (Pty) Ltd v Lillicrap,

Wassenaar and Partners 1983 (2) SA 157 (W)

… 13

Pillay v Krishna 1946 AD 946 … 111

Pinchin and Another NO v Santam Insurance

Co Ltd 1963 (2) SA 254 (W) … 40, 44

Portwood v Svamvur 1970 (4) SA 8 (RA) … 60

Premier, KZN v Sonny 2011 (3) SA 424 (SCA)

… 79, 102, 127, 128

Pringle v Administrator, Transvaal 1990 (2)

SA 379 (W) … 5, 79, 98, 109, 110, 112, 115,

129, 133

Prowse v Kaplan 1933 EDL 257 … 79, 101,

103, 105

RAF v Mtati 2005 (6) SA 215 (SCA) … 39, 40

Ramsay v Minister van Polisie en Andere 1981

(4) SA 802 (A) … 82

Ratcliffe v Plymouth and Torbay Health

Authority [1998] EWCA Civ 2000 (11

February 1998) … 112

Rees v Darlington Trust [2003] All ER (D) 271

… 68

Richter and Another v Estate Hammann 1976

(3) SA 226 (C) … 50, 94, 101

Road Accident Fund v Mtati 2005 (6) SA 215

(SCA) … 30

Roads and Traffic Authority v Royal (2008)

245 ALR 653 … 67

Rogers v Whitaker [1993] 4 Med LR 79 … 53,

54, 93

Rompel v Botha 1953 (TPD) (unreported) …

50

Table of Cases

xvii

Roux v Hattingh 2012 (6) SA 428 (SCA) … 13

Rudolph v Minister of Safety and Security

2009 (5) SA 94 (SCA) … 111

R v Makali 1950 (1) SA 340 (N) … 84

R v Umfaan 1908 TS 62 … 19

R v Van der Merwe 1953 (2) PHH 124 (W) …

102

R v Van Schoor 1948 (4) SA 349 (C) … 99, 100

Ryan v Petrus 2010 (1) SA 169 (ECG) … 19

Saaiman and Others v Minister of Safety and

Security and Another 2003 (3) SA 496 (O)

… 47

SA Medical and Dental Council v

McLoughlin 1948 (2) SA 355 (A) … 50

Santam Bpk v Henery 1999 (3) SA 421 (SCA)

… 24, 25

Santam Insurance Co Ltd v Vorster 1973 (4)

SA 764 (A) … 13

Schloendorff v Society of New York Hospital

211 N.Y. 125, 105 N.E. 92 (1914) … 52

Sea Harvest Corporation (Pty) Ltd v Duncan

Dock Cold Storage (Pty) Ltd 2000 (1) SA 827

(SCA) … 36, 37, 86, 95

SEEMA v Lid van die Uitvoerende Raad vir

Gesondheid, Gauteng 2002 (1) SA 771 (T) …

46, 49

Seetal v Pravitha 1983 (3) SA 827 (D) … 21

Sidaway v Governors of Bethlehem Royal

Hospital and Others [1985] 1 All ER 643 HL

… 50

Silver v Premier, Gauteng Provincial

Government 1998 (4) SA 569 (A) … 59, 102

Siman & Co (Pty) Ltd v Barclays National

Bank Ltd 1984 (2) SA 888 (A) … 61, 62

Slomowitz v Vereeniging Town Council 1966

(3) SA 317 (A) … 28

SM Goldstein & Co (Pty) Ltd v Cathkin Park

Hotel (Pty) Ltd and Another 2000 (4) SA

1019 (SCA) … 13, 37, 39

Smit v Abrahams 1992 (3) SA 158 (C) … 95

Smit v Abrahams 1994 (4) SA 1 (A) … 76, 77

Snell v Farrell [1990] 2 SCR 311 … 71

Sonny and Another v Premier of the Province

of Kwazulu-Natal and Another 2010 (1) SA

427 (KZP) … 101

Soobramoney v Minister of Health, Kwazulu-

Natal 1998 (1) SA 765 (CC) … 5

South Cape Corporation (Pty) Ltd v

Engineering Management Services (Pty) Ltd

1977 (3) SA 534 (A) … 111

Stacey v Kent 1995 (3) SA 344 (E) … 112

Standard Chartered Bank of Canada v

Nedperm Bank Ltd 1994 (4) SA 747 (A) …

74, 76

Steenkamp NO v Provincial Tender Board,

Eastern Cape 2006 (3) SA 151 (SCA) … 13

Stewart and Another v Botha and Another

2007 (6) SA 247 (C) … 59

Stewart and Another v Botha and Another

2008 (6) SA 310 (SCA) … 25, 27, 30, 44, 45,

49

Stoffberg v Elliott 1923 CPD 148 … 57

Stone & Rolls Ltd (in liq) v Moore and

Stephens (a firm) [2009] 3 WLR 455 … 67

S v A and Another 1971 (2) SA 293 (T) … 12,

19, 21

S v Bochris Investments (Pty) Ltd and

Another 1988 (1) SA 861 (A) … 96

S v Burger 1975 (4) SA 877 … 87

S v De Bellocq 1975 (3) SA 538 (T) … 84

S v Goosen 1989 (4) SA 1013 (A) … 84

S v Gordon 1962 (4) SA 727 (N) … 84

S v Hartmann 1975 (3) SA 532 (C) … 12, 79,

84

S v Hibbert 1979 (4) SA 717 (D) … 84

S v Kramer 1987 (1) SA 887 (W) … 12

S v Marengo 1991 (2) SACR 43 (W) … 84

S v McBride 1979 (4) SA 313 (W) … 84

S v Mini 1963 (3) SA 188 (A) … 96

S v Mkwetshana 1965 (2) SA 493 (N) … 12, 79,

99, 100, 106, 108, 121

S v Mokgethi 1990 (1) SA 32 (A) … 12, 59, 73,

74, 75, 76, 77

S v Mshumpa 2008 (1) SACR 126 (E) … 40

S v Nel 1987 TPD (unreported) … 106

S v Ngubane 1985 (3) SA 677 (A) … 79, 80, 81,

111

S v Nkwanyana 2003 (1) SA 303 (W) … 84

S v Smorenburg 1992 (2) SACR 389 (C) … 84

S v Soobramoney 1998 (1) SA 765 (CC) … 92

S v Williams 1986 (4) SA 1188 (A) … 84

Telematrix (Pty) Ltd t/a Matrix Vehicle

Tracking v Advertising Standards Authority

SA 2006 (1) SA 461 (SCA) … 13, 27, 30, 31,

32, 35, 47

Thomas v BMW South Africa (Pty) Ltd 1996

(2) SA 106 (C) … 39

Trustees, Two Oceans Aquarium Trust v

Kantey & Templer (Pty) Ltd 2006 (3) SA 138

(SCA) … 13, 35, 38, 46

Truter v Deysel 2006 (4) SA 168 (SCA) … 11,

26, 27, 28

xviii


Union Government v Ocean Accident and

Guarantee Corporation Ltd 1956 (1) SA 577

(A) … 13

Union Government v Warneke 1911 AD 657

… 17

Van der Merwe v Road Accident Fund 2006

(4) SA 230 (CC) … 11, 20

Van Duivenboden v Minister of Safety and

Security 2002 (6) SA 431 (SCA) … 27, 61, 62

Van Eeden v Minister of Safety and Security

(Women’s Legal Centre Trust as Amicus

Curiae) 2003 (1) SA 389 (SCA) … 30, 31, 36,

37, 48

Van Wyk v Lewis 1924 AD 438 … 11, 17, 29,

47, 48, 49, 56, 70, 79, 89, 90, 91, 92, 93, 97,

109, 112, 113

Viv’s Tippers (Edms) Bpk v Pha Phama Staff

Services (Edms) Bpk h/a Pha Phama Security

2010 (4) SA 455 (SCA) … 13, 30, 48

Walker v Van Wezel 1940 WLD 66 … 19

Watt v Rama [1972] VR 353 … 40

Webb v Isaac 1915 ECD 273 … 101, 103, 128

Weber v Santam Versekeringsmaatskappy Bpk

1983 (1) SA 381 (A) … 87, 88, 100

Western Cape v Faircape Property Developers

(Pty) Ltd 2003 (6) SA 13 (SCA) … 37

Whitehouse v Jordan [1981] 1 All ER 267 …

109, 110, 129

Whittaker v Roos and Bateman 1912 AD 92 …

11, 18, 83

Wilsher v Essex Area Health Authority [1988]

1 All ER 871 HL … 59, 68, 70, 71, 99, 100,

106

Wroe v McDonald [2011] JOL 29733 (C) …

43, 106

X v Y and Others [1988] 2 All ER 648 (QB) …

22

Table of Statutes

Children’s Act 38 of 2005 … 5, 21

s 129 … 54, 55

s 129(1) … 56

s 129(2) … 55

s 129(2)(b) … 5

s 129(3)(b) … 5

s 130 … 55

s 132 … 55

s 133 … 55

Choice on Termination of Pregnancy Act 92

of 1996

s 1 — medical practitioner … 56

s 1 — registered midwife … 56

s 5(2) … 55, 56

s 5(3) … 56

s 6 … 56

Constitution of the Republic of South Africa,

1996 … 2, 34

Chapter 3 … 3

s 12 … 21

s 12(2)(a) … 55

s 14 … 21

s 35(1) … 3

Constitution of the Republic of South Africa

Act 200 of 1993 … 2

Criminal Procedure Act 51 of 1977 … 58

s 37(2) … 58

s 225(2) … 58

Institution of Legal Proceedings Against

Certain Organs of State Act 40 of 2002 … 26

Magistrates’ Courts Act 32 of 1944

s 28(1)(d) … 11

Mental Health Care Act 17 of 2002

s 26 … 58

s 27 … 58

s 32 … 58

s 33 … 58

s 40 … 58

National Health Act 61 of 2003 … 5, 21, 50

s 6(1) … 5

s 7(1)(d) … 58

s 8(3) … 58

ss 14–17 … 22

Nursing Act 33 of 2005 … 56

Prescription Act 68 of 1969 … 26

Promotion of Access to Information Act 2 of

2000

s 30 … 58

xix

1

Introduction

The purpose of this book is to provide a practical guide to the essential principles

of medical malpractice in South African law. Due to the nature of its subject

matter, the book is primarily a legal work. It is, however, becoming essential for

medical practitioners to have a working knowledge of malpractice law. The fundamental

legal principles have therefore been made more accessible to medical

professionals by including a chapter setting out an overview of relevant aspects

of South African law for medical professionals, 1 and by highlighting (by way of

a dotted line in the margin) the most important principles of the law in each

subsequent chapter.

Medical malpractice law is particularly challenging because its principles lie

at the intersection of the disciplines of medicine and law, each with its own separate

professional culture and accumulated body of knowledge and experience.

This presents formidable challenges, both to the proper understanding of the

relevant principles, and to finding practical and sustainable solutions to an everevolving

set of ethical and policy issues which need to be assimilated into the

legal system. A response to those challenges is urgently needed. The nature of

the issues involved gives rise to intense and searching debate, and judicial examination

of people’s most intimate interests. Fundamental questions are asked of

the courts regarding the very nature of the human condition, and how we as a

society ought to respond: What is a person? When does life begin, and when

does it end? Matters of reproduction, sexuality, autonomy, the proper approach

to the vexed and urgent issues of socio-economic rights and the allocation of

resources, the relationship between doctor and patient, questions relating to

medical technology and whether we should manipulate states of human health

from transplantation to genetic modification and on to (de)selection of traits

such as deafness and even gender, are at issue. 2 The way in which those questions

are answered goes to the very heart of who we are as a society. The confluence of

law, medicine and ethics presents us with hard choices. Our choices and how we

handle them shape the people we become. These issues involve profound policy

considerations which need to be considered and assimilated into the legal system.

At the time of writing, South Africa is entering its third decade as a constitutional

democracy, and the aphorism that ‘a country’s law can be found in the

1

Chapter 2 below.

2

See, e g J K Mason & G T Laurie Mason and McCall Smith’s Law and Medical Ethics 8 ed (Oxford

University Press 2011) at para 1.06.

1

2


last thirty years of its law reports’ 3 seems particularly poignant. The practice of

medicine is presently plagued by an obstructive anxiety, as medical malpractice

claims continue to sharply increase in number and in value. The health professions

feel under siege: the South African Medical Journal recently described the

climate of medical practice as ‘increasingly hostile, pressurised and uncertain.’ 4

And the provision of an acceptable public sector healthcare system seems to be

an impossible ideal. Our healthcare system should protect and foster our bodily

and psychological integrity, and progressively realise access to healthcare services

— an essential feature of our common humanity. Instead, a fundamental

component of our constitutional democracy faces paralysis and failure.

These challenges are further complicated by the fact that, since 1994, the foundations

of South African law have undergone ‘a paradigm shift with profound

implications.’ 5 The changes introduced by the Interim and Final Constitutions 6

were as drastic as any in the long pedigree of this area of the law, which dates

back more than two millennia. 7 Twenty years after the enactment of the Interim

Constitution, 8 these developments have had time to settle into practical reality.

Structurally, our legal system has, on the whole, assimilated the constitutional

changes with somewhat surprising ease and equanimity. The reason for this relatively

untroubled transition lies in the innate flexibility of the inherited legal

principles governing medical malpractice. Liberated from the strictures of Roman

casuistry by the quintessentially pragmatic Roman-Dutch jurists, the ancestor

of modern South African malpractice law acquired a remarkably robust adaptability,

and it is this malleable quality which allowed the changes brought about

by the new Constitutional order to be accommodated.

But to say that the inherent structure of our common law has demonstrated

a commendable ability to accommodate profound change is not to say that the

law has met its objective. The purpose of the private law is, in a narrow sense,

to regulate relationships between individuals by allowing a person to claim

damages negligently or intentionally caused by another in civil proceedings. 9

3

Proculus Redivivus ‘South Africa at the Crossroads or, What is the Common Law?’(1965) 82

SALJ 17 at 24.

4

G Howarth et al ‘The importance of comprehensive protection in today’s healthcare environment’

S Afr Med J 2013; 103(7): 453–454.

5

A phrase used by Alfred Cockrell in ‘Rainbow Jurisprudence’, (1996) 12 SAJHR at 1. The article

remains as relevant as when it was first published.

6

The Interim Constitution, Act 200 of 1993; the Constitution of the Republic of South Africa,

1996.

7

The delict known by the Romans as the damnum iniuria datum, which is now (in extended

form) the mainstay of the modern South African delictual action for patrimonial loss suffered

through injury to person or property, was created by the lex Aquilia in 287 bc; the

delict of iniuria, which today affords a remedy for injury to personality, enjoys an even more

ancient heritage, having been enacted in the Twelve Tables in approximately 450 bc.

8

Constitution of the Republic of South Africa Act 200 of 1993.

9

McKerron The Law of Delict 7 ed (Juta, 1971) 1; Neethling et al Law of Delict 6 ed (LexisNexis

2010) 3; Boberg The Law of Delict vol 1 Aquilian Liability 2 imp (Juta 1984) at 1–3.

Introduction 3

There is, however, a broader context to this. 10 With the incorporation of values

in Chapter 3 of the Constitution, our legal order metamorphosed from a rulebound

model to a model in which the touchstone of legal values is central. The

latter form of legal reasoning compels legal rules to conform with notions of

what is right, just or good, and thereby promotes moral, policy-oriented and values-based

reasoning in the development of the law.

This referencing of ‘values’ finds particular resonance in the field of medical

law. It is precisely the complex nature of the issues raised in the field of medical

law — and the hard choices that we as a society face — that provides a resounding

validation of the shift in legal emphasis. Our legal system’s capacity to now incorporate

values-based criteria as central to judicial decision-making allows a fuller

response to the searching questions which arise at the confluence of medicine

and law, and undoubtedly imbues our legal system with the capacity for a transformative

intellectual and moral maturity.

However, as members of the legal profession and judiciary will attest, it should

not be overlooked that formal rules have their own virtues of consistency, predictability

and uniformity. 11 This is in accordance both with ethical principles

and the legal doctrine of precedent which reflects and requires that judges follow

legal rulings in previous judicial decisions. And so, leading cases (so-called ‘paradigm

cases’ 12 ) should ‘become enduring and authoritative sources of reflection

and decision-making. Past decisions about moral rights and wrongs in cases serve

as a form of authority for decisions in new cases.’ 13 If the formal virtue of precedent

is diluted, the seductive call of values-based decisions can, in the end, turn

out to be a siren-song leading to an incoherent and chaotic jurisprudence.

There is another, international, dimension to the quest for an effective

response to the challenges confronting malpractice law. We live in a globalised

world, and the challenges we face and the solutions we implement play out on a

larger stage before the community of nations. We should look to the lessons and

experiences of other nations with a sense of openness, modesty, and a willingness

to learn from others and to share our experiences. 14

In conclusion, our current case law is worryingly threadbare in respect of

a variety of issues which affect the daily practice of medicine. In the development

of informed consent, patient confidentiality, the nature of the relationship

between doctor and patient, access to healthcare services, a more sophisticated

response to the challenges of causation, and the clarification and development

of health rights in general (which are only examples of a far broader range of

10

See, generally, F D J Brand ‘Influence of the Constitution on the law of delict’, Advocate, 42 at

45.

11

These benefits are referred to by Cockrell as ‘second-level substantive reasons’. Cockrell, op

cit note 20 at 21.

12

T L Beauchamp ‘Methods and Principles in Biomedical Ethics’ J Med Ethics 2003, 29 at 269–

274.

13

Ibid.

14

Section 35(1) of the Constitution of the Republic of South Africa, 1996.

4


issues), the guidance provided by our legal system has been patchy and incomplete.

Upon its ancient foundations our legal system has, via the liberating practicality

of the Roman-Dutch jurists, the broadening of perspective through the

contribution of the English law, and the transition from a rules-based to a values-based

legal system introduced by our constitutional democracy, developed to

the point where it has the structural capacity to deal admirably with the manifold

challenges arising from the confluence of medicine and the law. Clear and

decisive direction is urgently needed from our legislature and judiciary as part of

a broader response to these challenges. It is hoped that this book will contribute

to that development.

2

An Overview for Medical Practitioners

2.1 Introduction

In general, the medical and legal professions function independently of each

other perfectly well. But sometimes a medical issue becomes a legal issue.

Complications arise in a routine procedure, and a patient is injured; 1 a provincial

hospital with limited resources formulates a policy which has the effect of

denying renal dialysis facilities to an unemployed man with chronic renal failure

who dies as a result; 2 the parents of a gravely ill child refuse to consent to medical

treatment for religious or cultural reasons. 3 In these situations, and many others,

it quickly becomes apparent that what seemed to be a purely medical matter is

subject to the invisible and all-pervading scrutiny of the legal system.

There are pressing demands on the modern medical practitioner, who faces a

bewildering range of legal and ethical issues, consisting of a forest of rules, regulations,

guidelines, statutes and judicial decisions. One feature of these demands

is that medical practitioners are increasingly faced with situations in which the

exercise of a judgment is called for. So, for example, the Children’s Act 4 provides

that a child may consent to his or her own medical treatment or to the medical

treatment of his or her child (including the performance of a surgical operation)

if ‘the child [giving consent] is of sufficient maturity and has the mental capacity

to understand the benefits, risks, social and other implications of the treatment.’ 5

Similarly, the National Health Act, 6 prescribes that a patient’s informed consent

must be obtained and, in order to do so, the patient must have been informed

of, inter alia, ‘the range of diagnostic procedures and treatment options generally

available to the user’ and ‘the benefits, risks, costs and consequences generally

associated with each option.’ 7 These provisions in both the Children’s Act and the

National Health Act are open to interpretation, and will depend to a large extent

on the particular facts of the case being dealt with. Medical practitioners are not

lawyers and are often not equipped, by training or experience, to deal with such

1

Pringle v Administrator, Tvl 1990 (2) SA 379 (W).

2

Soobramoney v Minister of Health, Kwazulu-Natal 1998 (1) SA 765 (CC) (1997 (12) BCLR 1696;

[1997] ZACC 17).

3

Hay v B and Others 2003 (3) SA 492 (W).

4

38 of 2005.

5

Ibid, s 129(2)(b) and (3)(b).

6

61 of 2003.

7

Ibid, s 6(1).

5

6


challenges. An understanding of the fundamental principles of the legal and

ethical framework against which these principles operate is essential, both for an

understanding of the express requirements of the law, and for the proper exercise

of judgment where this is called for. This book explores those foundational legal

principles — a firm grasp of those principles can then be applied by the medical

practitioner to a host of situations which arise in practice.

2.2 Summary of key principles

This section serves as an introduction and a summary of the foundational legal

principles. The various chapters in the book each deal with a particular aspect

of medical malpractice law. Together, these chapters make up a coherent body

of knowledge. Throughout the body of the text, key concepts are highlighted by

way of a dotted line in the margin. It is suggested that members of the medical

profession initially focus on the summaries in this chapter and the key concepts

contained in the highlighted text.

Extensive reference has been made to foundational medical malpractice

cases — a practical example is often worth pages of theory. The reader is advised

to identify the underlying principle which emerges. Every effort has been made

to set out the underlying principles in straightforward, coherent terms and to

avoid the use of jargon.

2.2.1 Chapter 3: Causes of action 8

For our purposes, the South African legal system can conveniently be divided

into two — civil proceedings and criminal proceedings. In civil proceedings, an

individual brings the claim. The claim could be against an individual practitioner,

against a hospital, or against a provincial health authority. In criminal

proceedings, on the other hand, the State brings the legal proceedings.

Civil proceedings are governed by the civil law, while criminal proceedings

are governed by the criminal law. ‘Civil wrongs’ regulate relationships between

individuals by allowing a person to claim relief in the form of damages against

another in civil proceedings. In malpractice claims, damages are usually in the

form of monetary relief.

The criminal law is not regularly used to prosecute medical practitioners as

the result of malpractice, although it has on occasion occurred. For that reason,

the criminal law is not dealt with in any great depth in this book. Suffice to say

that compliance with the general principles governing the civil law will almost

entirely protect the medical practitioner against criminal liability.

Under the civil law, there are two forms of civil wrongs that make up almost

the entire body of civil claims in medical malpractice cases: breach of contract

and delict. Most people have a fairly good general idea of what is meant by ‘contract’

and ‘breach of contract.’ But what is meant by a ‘delict’?

8

See ch 2 below.

An Overview for Medical Practitioners 7

Briefly stated, the law of delict allows a person to claim damages negligently

or intentionally caused by another, irrespective of whether a contract was concluded

between the parties. The majority of claims for medical malpractice are

founded in delict, and this book therefore focuses mainly on the civil wrong of

delict. A common example of a delictual claim is one between individuals arising

out of a motor vehicle accident. For obvious reasons, there is usually no contract

between the parties, but legal relief is still available. The basis of the relief lies in

delict.

Sometimes, however, there is an overlap between different grounds of relief.

So, for example, where a doctor concludes a contract with a patient, injury to

the patient caused by the doctor’s negligence may be potentially be claimed in

contract or in delict. In addition, the same negligent conduct may possibly lead

to criminal liability. However, the courts will not allow a party to recover double-compensation

in such circumstances.

In order to obtain judgment, a plaintiff needs to establish his right to the relief

which he seeks. The right to judgment depends on proving certain essential facts.

The plaintiff first sets out his or her case in writing. 9 These essential facts make

up a ‘cause of action’. The defendant then sets out a defence in writing. This may

take the form of denying that the conduct in question was negligent, denying

that any negligent conduct caused the harm sued on, or disputing the value of

the claim. These essential facts must then be proven by way of evidence. The

evidence may be written, in the form of an affidavit or other documents, or it

may be oral. If the plaintiff makes out a case, then the defendant will have to set

out and prove a valid defence. Should the court find that the essential facts of a

particular cause of action are proven, it will assess whether any valid defence has

been established by the defendant.

2.2.2 Chapter 4: Unlawfulness 10

This chapter deals with the first of the essential elements of a delictual

action — unlawfulness.

The concept of unlawfulness is an essential element of delictual liability.

Conduct is unlawful if public policy considerations demand, that, in the circumstances,

the plaintiff should be compensated for the negligent or intentional

conduct of the defendant. Unlawfulness of conduct is tested against the legal

convictions of the community, as perceived by the legal policy makers of the

community, such as the legislature and the judiciary. The legal convictions of

the community are distinct from mere moral indignation. In determining the

legal convictions of the community, the courts take into account many factors,

including ideas of morals and justice, the convenience of administering the rule

and social ideas as to whether the harm suffered should give rise to a legal claim.

9

Most commonly through a summons on behalf of the plaintiff claim and a plea for the

defendant.

10

See ch 3 below.

8


Finally, the legal convictions of the community are not cast in stone, but shift

and change over time.

Unlawfulness must be distinguished from the concept of ‘fault’, which

assesses whether a person is to blame for the consequences of his or her conduct.

Even where conduct is blameworthy because there is the necessary intention or

negligence, legal liability will not result unless the conduct is regarded as being

unlawful. The concept fault is discussed in chapter 6 below.

Our law recognizes a number of defences which justify conduct which would

otherwise give rise to legal liability. Therefore, even where a person’s negligent or

intentional conduct causes harm to another, legal liability will not result where

a legally recognized defence exits. The most commonly encountered in medical

malpractice are informed consent, necessity, unauthorised administration, statutory

authority and the existence of a court order.

In respect of medical malpractice claims, an important principle is that it is

unlawful to infringe upon another person’s physical integrity, and this is so even

where the motive for such infringement is to heal. However, where a person provides

valid informed consent to the infringement of his or her physical integrity,

the conduct will not be unlawful. Consent therefore forms an important defence

to the otherwise unlawful conduct of the medical practitioner.

In medical law, for consent to be valid, the consenting party must have:

(i) had knowledge and been aware of the nature and extent of the harm or risk;

(ii) appreciated and understood the nature and extent of the harm or risk;

(iii) consented to the harm or assumed the risk, including all the consequences

thereof.

Consent in this form is known as ‘informed consent’.

It is not always necessary to obtain a patient’s informed consent. Other

defences, relevant to medical malpractice arise in emergency situations where

the patient’s consent cannot be obtained, where it is necessary in the interests of

society or where authorised by statute or court order.

2.2.3 Chapter 5: Causation 11

In order to be legally liable, a person’s conduct must have caused harm to another.

The law applies a two-stage approach to determine whether this has happened.

The first stage proceeds on the basis that the law will not hold a person

liable unless that person’s conduct in fact caused harm to another. The first stage

of the enquiry is known as factual causation. It is concerned with whether the

conduct in question actually caused the harm. The courts assess whether particular

conduct in fact caused harm by asking whether the harm would have

occurred but for the particular act or failure to act. However, the law will not hold

a person liable simply because his conduct caused harm to another. The law will

not allow the legal consequences of conduct to stretch into infinity.

11

See ch 5 below.

An Overview for Medical Practitioners 9

If it is found that conduct in fact caused the harm in question, the Courts

conduct a further enquiry. The next stage of the enquiry assesses whether the

conduct is closely enough connected to the consequence for it to be fair, reasonable

and just to hold the defendant liable. The courts therefore use a flexible

approach based on considerations of fairness, reasonableness and justice to determine

whether there is a close enough relationship between the conduct and its

consequence for legal liability to result.

2.2.4 Chapter 6: Fault

The next aspect to examine is the concept of fault. For legal liability to result,

causing harm to another is not enough. The law must also disapprove of the

defendant’s conduct or state of mind. In other words, the defendant must be

at fault. There are two forms of fault: negligence and intention. The concept of

medical malpractice embraces both forms.

A person is negligent when his or her conduct falls short of the standard which

the law expects of the reasonable person in those particular circumstances. In

the case of professional medical negligence, the law does not expect the highest

possible degree of professional skill. The standard which the law expects is the

general level of skill and diligence possessed and exercised at the time by the

members of the branch of the profession to which the practitioner belongs.

Negligence is assessed objectively by comparing the conduct of the defendant to

that of the reasonable medical practitioner in the same circumstances.

Negligence arises where the reasonable medical practitioner in the branch of

the profession to which the defendant belongs would have foreseen the reasonable

possibility of his or her conduct injuring another person, that the reasonable

practitioner would have taken reasonable steps to guard against the injury occurring,

and the defendant failed to take those steps.

It should also be noted that guidelines and the usual practices of the medical

profession are instructive, but not decisive, as to whether conduct is negligent.

Ultimately, the court assesses the reasonableness of the conduct, but will take

guidelines and usual practices into account in making this assessment.

The harm suffered by the defendant must be reasonably foreseeable on all the

facts of the case. Whether the reasonable medical practitioner would have taken

steps to prevent the harm from occurring will depend on an assessment of all of

the facts in the case. The risk of harm, the seriousness of the harm and the cost

or difficulty of taking preventative steps are factors which the courts take into

account.

A somewhat controversial principle is that the same standard of competence

is required of the newly qualified physician as the experienced practitioner. The

necessary standard is a single, objective yardstick — there is not a multitude of

differing requirements based on the level of experience of the practitioner. The

courts’ approach is, however, mitigated in this regard by the principle that the

10


required standard of reasonableness will be met should the novice seek advice or

consult with more experienced colleagues.

As far as the question of whether a medical practitioner has the requisite intention,

the approach of the courts is that this is met when his or her will is directed

at a result which was either the person’s principal object, or one which the person

foresaw might follow from the conduct and was reckless as to the result.

It is not yet settled whether a person needs to realise or foresee the possibility

that his or her conduct was unlawful for the person to be at fault. In respect of

invasion of privacy and assault, the current state of the law is that such knowledge

of unlawfulness is not required.

It should also be appreciated that intention as a form of fault is distinct from

motive. Intention is a reflection of the will rather than desire. A person can

therefore act with a noble motive, and still have the intention to cause harm to

another for which legal liability may result.

3

Causes of Action

‘Before you draw a pleading you’ve got to know the law.’ 1

INTRODUCTION 2

3.1 Definition

A ‘cause of action’ may be defined as:

‘Every fact which it would be necessary for the plaintiff to prove, if traversed, in order

to support his right to the judgment of the court. It does not comprise every piece of

evidence which is necessary to prove each fact, but every fact which is necessary to be

proved.’ 3

3.2 Facta probanda and facta probantia

The starting point in medical malpractice cases, as in all areas of the law, is a

thorough grounding in the fundamental principles of the substantive law. The

essential legal elements which make up each cause of action or defence — and

accordingly the material facts to be pleaded and proved in each case — is a matter

of substantive law. As was stated by Hiemstra, J in Makgae v Sentraboer: 4 ‘[This]

case … vividly illustrates the truth of what the late Prof. Wille used to say: “Before

you can draw a pleading you’ve got to know the law.”’

It is important to bear in mind the distinction between the facts which are

necessary for the party instituting the proceedings to prove, and the evidence

supporting the existence of those facts. The authors of ‘Jones & Buckle: The Civil

Practice of the Magistrates’ Courts in South Africa’ 5 state:

‘The application of this definition [in paragraph 3.1.] above has given rise to difficulties,

and it has been suggested that most difficulties will in practice be resolved if,

1

Makgae v Sentraboer 1981 (4) SA 239 (T).

2

See, generally: Hoffa v SA Mutual Fire and General Insurance Co Ltd 1965 (2) SA 944 (C); Whittaker

v Roos and Bateman 1912 AD 92; Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty)

Ltd 1985 (1) SA 475 (A); McKenzie v Farmers Co-Operative Meat Industries 1922 AD 16; Evins v

Shield Insurance Co Ltd 1980 (2) 814 (A); Edouard v Administrator, Natal 1989 (2) SA 368 (D);

Jansen van Vuuren and Another NNO v Kruger 1993 (4) SA 842 (A); Van der Merwe v Road Accident

Fund 2006 (4) SA 230 (CC); Bester v Commercial Union Versekeringsmaatskappy van SA Bpk 1973

(1) SA 769 (A); Jameson’s Minors v Central South African Railways 1908 TS 575; Truter v Deysel

2006 (4) SA 168 (SCA); Broude v McIntosh 1998 (3) SA 60 (SCA); Van Wyk v Lewis 1924 AD 438.

3

Per Maasdorp JA in McKenzie v Farmers’ Co-Operative Meat Industries Ltd 1922 AD 16 at 23.

4

1981 (4) SA 239 (T).

5

9 ed vol 1 The Act: in the commentary on s 28(1)(d) under ‘If the cause of action arose wholly

within the district’.

11

12


in applying the definition to any given case, it is borne in mind that [the “cause of

action”] relates only to “material facts”, and if at the same time due regard be paid to

the distinction between the facta probanda and the facta probantia. This distinction is

of great importance and care must be taken in any given case to distinguish the facts

which must be proved in order to disclose a cause of action (the facta probanda) from

the facts which prove them (the facta probantia).’

The practical effect of these principles has been well summarised as follows: ‘The

material facts are therefore the essential legal elements of the particular cause of

action, charge or defence, stated in such a way that the legal elements are made

applicable to the facts of the case concerned.’ 6

3.3 Medical malpractice

‘Medical malpractice’ embraces professional medical misconduct, committed

either intentionally or negligently. 7 It includes the concept of ‘professional

medical negligence’, but goes further. It also includes intentional conduct which,

as we shall see, is a necessary element in respect of rights of personality, and plays

an increasingly important role in medical malpractice cases.

The substantive law governing medical malpractice must be seen within the

context of the South African legal system as a whole. Traditionally, since the

days of Justinian, the national law of a State has been divided into private and

public law; the former governing legal relationships between private citizens, and

the latter applying where the state is involved in the legal relationship. 8 Most

relevant to medical malpractice in the sphere of the private law are the fields of

contract and delict; while in the public law constitutional, administrative and

criminal law all play an important role.

3.4 The role of delict in medical malpractice claims

Generally speaking, the law of contract plays a more limited role than the law

of delict in the South African law of medical malpractice, 9 and claims founded

in the public law are uncommon — criminal proceedings, although theoretically

available, are rare, 10 as are claims founded in administrative or constitutional law.

6

Marnewick Litigation Skills for South African Lawyers 3 ed (LexisNexis 2012) at 85.

7

See ch 6 below.

8

Hosten et al Introduction to South African Law and Legal Theory 2 ed (LexisNexis 1995) 491.

A third sphere, formal law, embraces criminal and civil procedure and evidence. Although

somewhat simplified, this model serves the present purpose well.

9

The relative primacy of delict over contract is apparent in other jurisdictions. See e g C P

McGrath, ‘Medical Malpractice and Compensation in Global Perspective: Vienna 3–4

December 2010’ (2011) 1 PN 4–12, who report that in England, the United States and Canada

the dominance of tort in dealing with malpractice issues is apparent, that it is an exceptional

approach to base an action for malpractice on a contract and that this situation is most pronounced

in the context of public care.

10

But see e g: S v A 1971 (2) SA 293 (T); S v Hartmann 1975 (3) SA 532 (C); S v Kramer 1987

(1) SA 887 (W); S v Mkwetshana 1965 (2) SA 493 (N); S v Mokgethi 1990 (1) SA 32 (A); Ex

parte Minister van Justisie: in re S v Grotjohn 1970 (2) SA 355 (A); This is not universally so,

and in some jurisdictions criminal sanctions are far more widespread: Kazarian, ‘Criminal

Causes of Action 13

For practical reasons, therefore, this work focuses mainly on the delictual principles

governing medical malpractice claims.

3.5 Selecting causes of action in contract or delict

When selecting an appropriate cause of action, a number of principles governing

the interaction between contract and delict require consideration.

The starting point for a proper understanding of the relationship between contract

and delict remains Grosskopf AJA’s judgment for the majority in Lillicrap,

Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd. 11 The appellant, a firm

of engineers, concluded a contract with the respondent to perform professional

services relating to the planning and construction of a glass plant. The respondent

was dissatisfied with the appellant’s performance, and brought an action in delict 12

for damages arising from the appellant’s breach of its contractual duties. The issue

to be determined was whether the infringement of a contractual duty is per se a

wrongful act for purposes of delictual liability. 13 The Court found, on the facts,

that there was no damage to property or injury to person. The only infringement

Responsibility for Medical Malpractice in France’ Journal of Professional Negligence (2011) 4

PN 188–199; Furner & S McDowell ‘Doctors Charged with Manslaughter in the Course of

Medical Malpractice 1795–2005: A Literature Review’ (2006) 99 Journal of the Royal Society

of Medicine 309; M Brazier & Alghrania ‘Fatal Medical Malpractice and Criminal Liability’

(2009) 25 PN 51. In New Zealand, there was a backlash when doctors were convicted of manslaughter

on the basis of simple and not gross negligence: see A Merry ‘When are Errors a

Crime — Lessons from New Zealand’ in CA Erin & S Ost (Eds) The Criminal Justice System and

Healthcare (Oxford University Press 2007). see also C P McGrath, ‘Medical Malpractice and

Compensation in Global Perspective: Vienna 3–4 December 2010’ (2011) 1 PN 4–12.

11

1985 (1) SA 475 (A). The minority judgment of Smuts AJA, and the judgment a quo by Margo

J in Pilkington Brothers SA (Pty) Ltd v Lillicrap, Wassenaar and Partners 1983 (2) SA 157 (W)

are, regrettably, seldom referred to, but remain instructive and thought-provoking. See also

Administrateur, Natal v Trust Bank van Afrika Bpk 1979 (3) SA 824 (A): Cape Empowerment Trust

Ltd v Fisher Hoffman Sithole 2013 (5) SA 183 (SCA); Country Cloud Trading CC v MEC, Department

of Infrastructure Development 2015 (1) SA 1 (CC) at [62]–[66]; Dantex Investment Holdings (Pty) Ltd

v Brenner and Others NNO 1989 (1) SA 390 (A): F v Minister of Safety and Security and Others 2012

(1) SA 536 (CC); Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd 2009 (2) SA 150

(SCA); Gouda Boerdery BK v Transnet 2005 (5) SA 490 (SCA); Indac Electronics (Pty) Ltd v Volkskas

Bank Ltd 1992 (1) SA 783 (A); Knop v Johannesburg City Council 1995 (2) SA 1 (A); Le Roux v Dey

(Freedom of Expression Institute and Restorative Justice Centre as Amici Curiae) 2011 (3) SA 274 (CC);

Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 (1) SA 475 (A); Local

Transitional Council of Delmas and Another v Boshoff 2005 (5) SA 514 (SCA) ([2005] 4 All SA 175);

Minister of Finance and Others v Gore NO 2007 (1) SA 111 (SCA); Roux v Hattingh 2012 (6) SA 428

(SCA); Santam Insurance Co Ltd v Vorster 1973 (4) SA 764 (A); SM Goldstein & Co (Pty) Ltd v Cathkin

Park Hotel (Pty) Ltd and Another 2000 (4) SA 1019 (SCA); Steenkamp NO v Provincial Tender Board,

Eastern Cape 2006 (3) SA 151 (SCA); Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising

Standards Authority SA 2006 (1) SA 461 (SCA) ([2006] 1 All SA 6); Trustees, Two Oceans Aquarium

Trust v Kantey & Templer (Pty) Ltd 2006 (3) SA 138 (SCA) ([2007] 1 All SA 240); Union Government

v Ocean Accident and Guarantee Corporation Ltd 1956 (1) SA 577 (A); Viv’s Tippers (Edms) Bpk v

Pha Phama Staff Services (Edms) Bpk t/a Pha Phama Security 2010 (4) SA 455 (SCA); Country Cloud

Trading CC v MEC, Department of Infrastructure Development 2014 (2) SA 214 (SCA).

12

Under the actio legis Aquilia.

13

At 499 E–F. Strictly speaking, the ratio of the decision related to Aquilian liability, since that

was the cause of action before the Court.

14


which the respondent complained of was the appellant’s breach of a contractual

duty to perform specific professional work with due diligence. The Court held that

policy considerations did not require that delictual liability should be imposed for

the negligent breach of a contract of professional employment where there had

been no injury to person or damage to property, with the result that the breach

of the contractual duty was not in itself a wrongful act for purposes of Aquilian

liability and that the elements of delict had to be independently established. The

mere existence of a breach of contract did not therefore suffice to establish a claim

in delict. Thus South African law, largely for policy reasons, maintains a clear division

between the law of contract and the law of delict.

There are a number of practical implications for medical malpractice matters

flowing from the resultant jurisprudential relationship between contract and delict.

Firstly, the law of delict affords greater scope for relief than the law of contract: this

is because non-patrimonial loss, recoverable in delict, is not recoverable for breach

of contract. In Administrator, Natal v Edouard, 14 a contract was concluded between

a married couple and a medical practitioner for the performance of a sterilisation

operation. A year after the operation, the plaintiff’s wife gave birth to a child. The

plaintiff, in his capacity as administrator of the joint estate, brought an action

in damages for breach of contract. He claimed the cost of supporting and maintaining

the child, as well as general damages for discomfort, pain and suffering,

and the loss of amenities of life suffered by his wife. The Appellate Division upheld

the validity of the contract, and allowed the claim for damages to compensate

the plaintiff for the cost of maintenance and support of the child, but refused to

extend liability for breach of contract to include liability for non-patrimonial loss.

The claims for damages for discomfort, pain and suffering, and loss of amenities of

life experienced by the plaintiff’s wife during her pregnancy and the birth of the

child were accordingly rejected, and the principle that only patrimonial loss may

be claimed in contract was reaffirmed. 15 In respect of damages for infringement of

rights of personality, the Court held that the claim must be brought in terms of the

actio iniuriarum — a delictual remedy — and not in contract.

Secondly, as most medical malpractice cases involve physical harm, the

medical practitioner is usually under an independent delictual duty to prevent

harm to the patient by virtue of the very fact that professional medical services

are being provided, even should no contract have been concluded requiring the

defendant to perform such services. 16 South African law allows the same facts to

give rise to a claim for damages in delict as well as in contract, and allows the

plaintiff to choose which to pursue. The existence of the doctor–patient relationship

may originate in contract 17 and, where it does, a concursus actionum

may exist, entitling the plaintiff to elect whether to proceed by way of contract

14

1990 (3) SA 581 (A); See also Edouard v Administrator, Natal 1989 (2) SA 368 (D).

15

At 597–598.

16

Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 (1) SA 475 (A) at 499.

17

Jansen van Vuuren and Another NNO v Kruger 1993 (4) SA 842 (A) at 848–849.

Causes of Action 15

or delict, or to sue in the alternative. This jurisprudential latitude is, however,

subject to the requirement that a concursus actionum exists only where the independent

requirements of both a contractual and a delictual action are present. 18

As a result, it is often more prudent to found a claim in delict than in contract

(possibly with the latter cause of action pleaded in the alternative). This is the

case where, for example, the terms of a contract are not clear, or the existence

of a contract is doubtful. This frequently occurs, for example, in claims against

public health authorities. 19 As the essence of the claim in contract is agreement,

the intention to conclude a contract (the animus contrahendi) is a prerequisite.

The public sector is capable of concluding contracts for the delivery of healthcare

services, but whether or not this has in fact taken place in any given case may be

unclear. Some of the common reasons for this lack of clarity are that the state provides

health services to the indigent, from whom no payment is required; there is

a constitutional obligation upon the state to ensure the progressive realisation of

the right of access to healthcare services, regardless of a contractual undertaking

to do so; and the intention of the state to conclude a contract is often difficult

to establish. 20 The existence of a claim in delict is, in these circumstances, more

easily established than a claim in contract.

3.6 Delictual causes of action

A delict is a form of civil wrong. 21 It regulates relationships between individuals

by allowing a person to claim damages against another in civil proceedings, irrespective

of whether a contract was concluded. (Although there may also be a

contract, in which case a concursus actionum arises, and the law of contract will

apply in addition to the law of delict). 22

It is now established, in the light of Van Winsen J’s lucid juridical assessment

in Hoffa v SA Mutual Fire and General Insurance Co Ltd, 23 that the true position in

our law of delict is that the actio iniuriarum, the Aquilian action and the eponymous

general remedy for pain and suffering (and allied damage in the form of loss

of the amenities of life, disfigurement, shortened life expectancy and the like) 24

form the individual components of a triptych of general delictual remedies.

In Roman law, a strictly casuistic approach was adopted, and a number of separate

and distinct civil wrongs existed, each with its own rules and appropriate

18


19

See, generally, Carstens et al Foundational Principles of South African Medical Law (Lexis Nexis

2007) at 284 ff.

20

See, esp Carstens et al loc cit.

21

See e g Boberg The Law of Delict vol 1 Aquilian Liability 2 imp (Juta 1984) at 1: ‘A delict is a civil

wrong.’

22


23

1965 (2) SA 944 (C) In particular the dictum of Van Winsen, J that ‘from the foregoing, it

would seem therefore that in our law the actio ex lege Aquilia is an action for the recovery of

patrimonial loss and would not include within its ambit a claim for compensation for pain and

suffering, and loss of amenities of life’ at 952.

24

Hoffa v SA Mutual Fire and General Insurance Co Ltd 1965 (2) SA 944 (C) at 949.

16


remedy. 25 The two most important Roman delictual remedies surviving in

modern law are the damnum iniuria datum (now claimable through the Aquilian

action, which affords a general remedy for patrimonial loss arising from wrongs

to interests of substance 26 ) and the iniuria (now claimable through the actio iniuriarum,

being the general remedy for wrongs to interests of personality 27 ). 28

Onto this structure, and apparently having their origins in Germanic and local

Netherlandic custom, the Roman-Dutch jurists grafted the action for pain and

suffering and the anomalous dependants’ action 29 (the latter remedy, due to its

peculiar nature, is usually treated separately: the same approach is taken in this

work 30 ).

3.7 The essential elements of the South African law of delict

The general essential elements of a delict are: unlawful conduct (whether by positive

act or omission), which is intentional or negligent (the fault element), and

which causes damage to person or property, or injury to personality. 31 The particular

application of the various general remedies is subject to certain specific

principles which regulate the application of the essential elements of the remedy.

Moreover, certain forms of the general remedies have developed in our law, with

resultant adaptation of the general principles. 32 It is convenient to deal with the

following common forms of medical malpractice claims: emotional shock, invasion

of privacy, misdiagnosis cases, medical malpractice in relation to fields of

specialisation, medical malpractice in the context of injuries or death caused by

therapeutic agents and retained objects; all of which are considered in this work. It

is, however, important to bear in mind that these specific forms of delictual action

fall within the framework of the general principles governing the law of delict. 33

The same action can be brought to claim various forms of loss suffered

through the same unlawful act. 34 South African law tends to avoid the casuistic

approach of the Anglo-American and Roman systems, in terms of which the

25

McKerron The Law of Delict 7 ed (Juta 1971) at 6; Neethling et al Law of Delict 6 ed (LexisNexis

2010) at 5;.

26

By which is meant physical injury to the person or property of the plaintiff in the wide sense

of including any interference with the plaintiff’s person or with a corporeal thing in which

she has a legally protected interest.

27

McKerron The Law of Delict 7 ed (Juta 1971) at 6.

28

McKerron The Law of Delict 7 ed (Juta 1971) at 10; Boberg The Law of Delict vol 1 Aquilian

Liability 2 imp (Juta 1984) at 18.

29

Voet Commentarius Book IX Title 2 The Aquilian Law 9 2 11; Bester v Commercial Union Vers ekerings

maatskappy van SA Bpk 1973 (1) SA 769 (A).

30

As Van den Heever stated in Millward v Glaser 1949 (4) SA 931 (A) at 941: ‘By reason of its

history and its place in our legal system the action for compensation for the loss of a breadwinner

is a peculiar remedy and it would be dangerous to apply its rules to Aquilian actions

in general.’

31

See, generally, Neethling et al Law of Delict 6 ed (LexisNexis 2010) at 4; J. Burchell Principles

of Delict (Juta 2007) at 10; Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A) at 838–839.

32

Neethling et al Law of Delict 6 ed (LexisNexis 2010) at 275.

33


34

See paras 3.5 and 3.29 above.

Causes of Action 17

requirements of a specific delict must be fulfilled or the claim will fail. Our generalising

approach has the advantage of being able to accommodate developments

in the law without having to create new delictual actions, and the flexible nature

of the South African law of delict facilitates its use by the courts to respond to

evolving circumstances.

3.8 Clinical malpractice and lack of consent

There is an increasing distinction in medical malpractice cases between, on the

one hand, a line of cases in which fairly standard issues in respect of technical

failure or medical misadventure are involved — that is, cases in which medical

treatment is involved in one form or another 35 and, on the other hand, a line of

cases in which the alleged fault is related to issues ancillary to the actual medical

treatment such as informed consent, confidentiality and the like. 36 However, the

underlying structure of the law remains the same, albeit with specific principles

relevant to each type of claim.

THE AQUILIAN ACTION (ACTIO LEGIS AQUILIAE)

3.9 Essential elements

The essential elements (the facta probanda) of the Aquilian action for damages

suffered as the result of bodily injury are: 37

1. Unlawful conduct by the defendant which caused bodily injury;

2. Fault, in the sense of culpa or dolus, on the part of the defendant; 38 and

3. Damnum, i e loss to plaintiff’s patrimony, caused by the bodily injury.

3.10 Characteristics of the Aquilian action

This action has an ancient pedigree, 39 which has evolved and expanded over the

millennia. 40 Today it is the general delictual remedy available to the plaintiff

who has suffered patrimonial loss (damnum iniuria datum; vermoënskade) through

injury to person or damage to property. 41 The Aquilian action is important in

medical malpractice claims, as it is the basis of the claim for patrimonial loss suffered

as the result of bodily injury caused by professional negligence. The corollary

of this principle is that the Aquilian action is only available for the recovery

35

See e g Van Wyk v Lewis 1924 AD 438.

36

See e g Castell v De Greef 1993 (3) SA 501 (C).

37

Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A) at 838–839.

38

The Aquilian action is available for loss caused by either intentional or negligent conduct:

Burchell Principles of Delict (Juta 1993) at 23; Coronation Brick (Pty) Ltd v Strachan Construction

Co (Pty) Ltd 1982 (4) SA 371 (D) at 377.

39

The delict known as damnum iniuria datum was created by a plebiscitum, the lex Aquilia, in

287 bc.

40

Burchell Principles of Delict (Juta 2007) at 11–13.

41

Union Government v Warneke 1911 AD 657 at 662; Matthews v Young 1922 AD 492.

18


of patrimonial loss; non-patrimonial loss such as pain and suffering, loss of the

amenities of life and the like cannot be claimed in this action. 42

The scope of the remedy was originally restricted to physical injury, and was

later expanded to encompass physical damage to property. 43 The remedy has long

since shed these restrictions, and it is now quite clear that damages for pure economic

loss may be claimed. 44 However, this notional availability of relief for pure

economic loss should not be taken to mean that such loss stands on the same

footing as loss resulting from physical injury or damage to property; the courts

are for policy reasons reluctant to extend the claim for pure economic loss — our

courts adopt a conservative approach and do not extend the scope of the Aquilian

action unless there are cogent policy factors favouring such an extension. 45

The Courts occasionally refer to ‘the extended Aquilian action’, by which they

include the solatium awarded for pain and suffering, loss of amenities of life and

the like. This is inaccurate, as it is now settled that the action for pain and suffering

is sui generis and does not fall under the mantle of the Aquilian action. 46

Relief in terms of the Aquilian action and the action for pain and suffering are

however commonly and appropriately sought in the same action. 47

THE ACTIO INIURIARUM

3.11 Definition

The actio iniuriarum is the general remedy for injury to rights of personality (iniuria),

48 being a person’s rights to bodily integrity (corpus), 49 reputation (fama) 50 and

dignity. 51

42


43

McKerron The Law of Delict 7 ed (Juta 1971) at 6.

44

See e g Country Cloud Trading CC v MEC, Department of Infrastructure Development 2014 (2) SA

214 (SCA); Minister of Safety and Security v Scott and Another 2014 (6) SA 1 (SCA).

45

Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 (1) SA 475 (A) at 504;

Country Cloud Trading CC v MEC, Department of Infrastructure Development 2014 (2) SA 214

(SCA).

46


47

Whittaker v Roos and Bateman 1912 AD 92; JJ Gauntlett The Quantum of Damages in Bodily and

Fatal Injuries Cases, Volume 1 at 1.

48

Minister of Justice v Hofmeyr 1993 (3) SA 131 (A); McKerron The Law of Delict 7 ed (Juta 1971) at

10; Boberg The Law of Delict vol 1 Aquilian Liability 2 imp (Juta 1984) at 18.

49


50


51

Although somewhat controversial, it is submitted that dignitas may for present purposes be

taken to be a collective term for all rights of personality, with the exception of corpus and

fama. See, generally: Neethling et al Law of Delict 6 ed (LexisNexis 2010) at 15; and for a

searching synopsis of the meaning of ‘dignity’ in our law: Woolman & Bishop Constitutional

Law of South Africa 2 ed Revision Service 5 (Juta 2015) at ch 36 and esp at para 36.2.

3.12 Essential elements 52

Causes of Action 19

The essential elements (the facta probanda) of the actio iniuriarum are: 53

1. The conduct complained of must be unlawful.

2. The conduct must be intentional.

3. The conduct must violate a right related to personality (being a person’s rights

to corpus, fama and dignity).

3.13 Characteristics of the actio iniuriarum

This action is available for intentional injury to a person’s feelings, reputation or

personality which does not involve loss of a patrimonial nature. 54 This cause of

action is commonly encountered in medical malpractice law — the scope of the

relief contains a number of remedies which are regularly claimed. Animus iniuriandi,

the fault element of the actio iniuriarum, is merely a species of dolus (intention).

55 The action can trace its history back to the Twelve Tables in approximately

450 BC 56 and, remarkably, the essential structure of the Roman remedy of iniuria

has received little material alteration in the Roman-Dutch or the modern law. 57

In Roman times, the actio iniuriarum was a purely penal action, its primary object

being to punish the defendant by the imposition of a pecuniary penalty, payable

52

Our courts have expounded on the concept of dignity to state that there are three essentials

to an iniuria: the act complained of must be wrongful; it must be intentional and must violate

a real right related to personality. ‘[An iniuria is] a wrongful act designedly done in contempt

of another, which infringes his dignity, his person or his reputation. If we look at the essentials

of iniuria we find . . . that they are three. The act complained of must be wrongful; it

must be intentional; and it must violate one or other of those real rights, those rights in rem,

related to personality, which every free man is entitled to enjoy.’ (per Innes CJ in R v Umfaan

1908 TS 62 at 66); Minister of Justice v Hofmeyr 1993 (3) SA 131 (A).

53

The starting point for a proper understanding of the common law roots of the actio iniuriarum

is generally regarded as being Voet’s definition of iniuria in this context as: ‘… a wrongdoing

committed in contempt of a free human being, and by which his person or dignity or reputation

is injured with evil intent.’ (Voet Commentiarius 7 47 10 1) ‘Dignity’ was defined by

Melius de Villiers The Roman and Roman-Dutch Law of Injuries (Juta 1899) at 24, as ‘that valued

and serene condition in his social or individual life which is violated when he is, either

publicly or privately, subjected by another to offensive and degrading treatment, or when

he is exposed to ill-will, ridicule, disesteem or contempt’ and at 24–25: ‘Every person has an

inborn right to the tranquil enjoyment of his peace of mind, secure against aggression upon

his person, against the impairment of that character for moral and social worth to which

he may rightly lay claim and of that respect and esteem of his fellow-men of which he is

deserving, and against degrading and humiliating treatment; and there is a corresponding

obligation incumbent on all others to refrain from assailing that to which he has such right’.

For acceptance of this statement by our courts see: Minister of Police v Mbilini 1983 (3) SA 705

(A) at 715G–716A; R v Umfaan 1908 TS 62 at 66 and 67; Walker v Van Wezel 1940 WLD 66; S v

A and Another 1971 (2) SA 293 (T) at 296–297; Ryan v Petrus 2010 (1) SA 169 (ECG) at 173.

54

Minister of Justice v Hofmeyr 1993 (3) SA 131 (A) at 154.

55

Intention is discussed more fully in ch 5 below. See generally Minister of Justice v Hofmeyr 1993

(3) SA 131 (A).

56

McKerron The Law of Delict 7 ed (Juta 1971) at 9; Brand J A ‘Influence of the Constitution on

the law of Delict’ Advocate (GCB SA) April 2014.

57

For a full discussion see Neethling et al Law of Delict 6 ed (LexisNexis 2010) at 12 ff; Voet

Commentiarius 47.10; R v Umfaan 1908 TS 62 at 66–67; McKerron The Law of Delict 7 ed (Juta

1971) at 9.

20


to the plaintiff as a solatium for the injury to his or her feelings. 58 Today, damages

awarded seek to compensate the plaintiff by assuaging injured feelings (solatium

or ‘sentimental damages’; ‘genoegdoening’). 59 The plaintiff must, as a general

rule, allege and prove impairment of the relevant aspect of personality relied

upon, including an allegation of animus iniuriandi. 60 However, the averment need

not be express if ‘the alleged iniuria is obviously an infringement of personality,

or where the facts pleaded allow for an inference of animus iniuriandi.’ 61

In the field of medical law, the action has relatively effortlessly incorporated

contemporary notions of rights of personality. So remarkable has the adaptation

been that it has, with a good deal of justification, been claimed that it is in respect

of rights of personality that South Africa comes out best in comparison to other

Anglo-American jurisdictions in dealing with the dynamic challenges presented

in medical malpractice law. 62 Infused with Constitutional values, personality

interests which are now protected are physical integrity, mental integrity, bodily

freedom, reputation, privacy, feelings and identity. A wrongful reduction of the

quality of these personality interests or rights entitles the victim to non-patrimonial

damages. 63 Physical integrity and privacy are of particular relevance to

medical law, and are specifically dealt with below.

3.14 Physical integrity (corpus)

Two separate aspects of physical integrity are recognised in South African law:

the body itself and a person’s physical liberty. The former aspect is of obvious

importance to the law of medical malpractice.

The corpus (bodily and psychological integrity) is protected against a broad

range of infringements of a person’s physique or psyche. 64 The right to phys-

58

Melius de Villiers The Roman and Roman-Dutch Law of Injuries (Juta 1899) at 179–181; McKerron

The Law of Delict 7 ed (Juta 1971) at 9.

59

Boberg The Law of Delict vol 1 Aquilian Liability 2 imp (Juta 1984) at 18.

60

Jansen van Vuuren and Another NNO v Kruger 1993 (4) SA 842 (A) at 849.

61

Jansen van Vuuren and Another NNO v Kruger 1993 (4) SA 842 (A) at 849; see also Jackson v SA

National Institute for Crime Prevention and Rehabilitation of Offenders 1976 (3) SA 1 (A) at 13 F–H.

62

See, for example, the remark by Rhiannon Thomas (in the context of informed consent by

legally competent adults in non-emergency, invasive medical procedures): ‘Where to from

Castell v de Greeff? Lessons from recent developments in South Africa and abroad regarding

consent to treatment and the standard of disclosure’ 2007 SALJ 188 at 201: ‘In one respect

South Africa comes out best in a comparison with [Canada, Australia and England]. In

granting compensation (in the form of a solatium) by way of the actio iniuriarum for the

infringement of the right to bodily integrity, irrespective of whether plaintiff suffered physical

harm, South Africa provides direct protection to individual autonomy’. To this may

be added that it is particularly in dealing with non-therapeutic claims generally, such as

informed consent cases and the right to confidentiality, that the actio iniuriarum has come

into its own. In this respect it has been an invaluable jurisprudential tool, allowing the

law to respond with alacrity to the challenges of modern notions of patient autonomy and

Constitutional rights to life, dignity, privacy and bodily integrity which lie at the heart of our

evolving conception of medical law. See also Diggelmann, ‘How the right to privacy became

a human right’ Human Rights Law Review (2014) 14 (3) 441–458.

63

Van der Merwe v Road Accident Fund 2006 (4) SA 230 (CC) at 253–254.

64

Van der Merwe v Road Accident Fund 2006 (4) SA 230 (CC) at 253–254.

Causes of Action 21

ical integrity falls under the ambit of the actio iniuriarum, which includes the

right to mental well-being, or psychological integrity. 65 In addition, a person’s

physical integrity is protected by section 12 of the Constitution, 66 as well as by

the common law remedies of the Aquilian action and the action for pain and

suffering.

Although an iniuria primarily infringes a personality interest, it often causes

patrimonial damage as well. In such circumstances, the plaintiff relies on two

causes of action in the same proceedings: the actio iniuriarum for satisfaction

(solatium) and the actio legis Aquilia for patrimonial damages.

3.15 Privacy 67

The right to privacy is constitutionally and statutorily protected. 68 Our common

law also recognises a right to privacy, and categorises it as a right of personality

actionable under the actio iniuriarum. 69 The actio iniuriarum protects a person’s

dignitas and dignitas in turn embraces privacy. 70 Although the right to privacy

has on occasion been referred to as a real right or ius in rem, 71 it is better described

as a right of personality. 72 An invasion of privacy may take place by way of an

unlawful intrusion upon the personal privacy of another or the unlawful publication

of private facts about a person. 73 Both forms are important to medical

malpractice claims. The former type of claim has given rise to the notion of

‘informed consent’, which is discussed in more detail in paragraphs 4.15 to 4.25

and following; the latter is discussed in paragraph 3.16 below.

3.16 Breach of confidentiality

South African law provides a remedy for breach of medical confidentiality by

means of a breach of the right to privacy, actionable under the actio iniuriarum.

65

Minister of Justice v Hofmeyr 1993 (3) SA 131 (A).

66

Constitution of the Republic of South Africa, 1996, s 12:

‘Freedom and security of the person …

(2) Everyone has the right to bodily and psychological integrity, which includes the right-

(a) to make decisions concerning reproduction;

(b) to security in and control over their body; and

(c) not to be subjected to medical or scientific experiments without their informed

consent.’

67

See, generally ch 38 ‘Privacy’ in Woolman et al Constitutional Law of South Africa 2 ed (Juta);

Neethling et al Neethling’s Law of Personality (2005); and, for a comparative perspective,

Diggelmann ‘How the right to privacy became a human right’ Human Rights Law Review

(2014) 14 (3) 441–458.

68

See e g s 14 of the Constitution of the Republic of South Africa, 1996; The National Health Act

61 of 2003; The Children’s Act 38 of 2005.

69

Jansen van Vuuren and Another NNO v Kruger 1993 (4) SA 842 (A) at 849; Seetal v Pravitha 1983

(3) SA 827 (D).

70


71

S v A and Another 1971 (2) SA 293 (T) at 297D–G.

72


73

Financial Mail (Pty) Ltd and Others v Sage Holdings Ltd and Another 1993 (2) SA 451 (A) at 462;

Jansen van Vuuren and Another NNO v Kruger 1993 (4) SA 842 (A).

22


The notion of medical confidentiality relates to the invasion of the right to personality

by means of a public disclosure of private medical facts. 74 The basis of

medical confidentiality is twofold. It protects the privacy of the patient, and it

performs a public interest function. 75 The duty of a physician to respect the confidentiality

of his patient is not merely ethical but is also a legal duty recognised by

the common law. 76 However, competing interests are weighed up by the courts,

and a doctor may be justified in disclosing his knowledge ‘where his obligations

to society would be of greater weight than his obligations to the individual.’ 77 In

this regard, sections 14 and 15 of the National Health Act, 61 of 2003 embody

this principle. Although consent to disclosure of information should ordinarily

be in writing, section 15 should be noted, which is an exception to this rule

and allows a health care provider or health establishment to disclose such personal

information as is necessary for any legitimate purpose within the ordinary

course and scope of his or her duties where such access or disclosure is in the

interests of the user. 78

It has been held that the concept of knowledge of unlawfulness (consciousness

of wrongfulness, ‘wederregtelikheidsbewussyn’) does not apply

in actions for breach of privacy. 79 The question in this regard is whether the

defendant must have performed conduct which he or she knew to have been

unlawful. 80 A plaintiff must normally allege and prove animus iniuriandi on the

74

Jansen van Vuuren and Another NNO v Kruger 1993 (4) SA 842 (A) at 849. See also Financial Mail

(Pty) Ltd and Others v Sage Holdings Ltd and Another 1993 (2) SA 451 (A) at 462E–F.

75

Jansen van Vuuren and Another NNO v Kruger 1993 (4) SA 842 (A) at 850: ‘This was recognised in

X v Y and Others [1988] 2 All ER 648 (QB) at 653 a–b where Rose J said: ‘In the long run, preservation

of confidentiality is the only way of securing public health; otherwise doctors will

be discredited as a source of education, for future individual patients “will not come forward

if doctors are going to squeal on them”. Consequently, confidentiality is vital to secure public

as well as private health, for unless those infected come forward they cannot be counselled

and self-treatment does not provide the best care …’.

76

Jansen van Vuuren and Another NNO v Kruger 1993 (4) SA 842 (A) at 850E. See also the National

Health Act, 61 of 2003, ss 14–17.

77

Jansen van Vuuren and Another NNO v Kruger 1993 (4) SA 842 (A) at 850G. ‘One is, as always,

weighing up conflicting interests and, as Melius de Villiers The Law of Injuries indicated, a

doctor may be justified in disclosing his knowledge “where his obligations to society would

be of greater weight than his obligations to the individual” because “(t)he action of injury is

one which pro publica utilitate exercetur”. To determine whether a prima facie invasion of the

right of privacy is justified it appears that, in general, the principles formulated in the context

of a defence of justification in the law of defamation ought to apply.’ See also McQuoid-

Mason The Law of Privacy In South Africa (Juta 1978) at 218; Neethling The Law of Personality

3 ed at 247).

78

The other exceptions recognized by s 14 are: where a court order or any law requires that

disclosure, and where non-disclosure of the information represents a serious threat to public

health.

79

C v Minister of Correctional Services 1996 (4) SA 292 (T) at 306A–F; referred to with approval in

Le Roux v Dey 2010 (4) SA 210 (SCA) at 222 (fn 43); para 6.9. below.

80

In Minister of Justice v Hofmeyr 1993 (3) SA 131 (A) at 154F, Hoexter JA stated: ‘On behalf of

the defendant it was strenuously submitted that in the present case, even if the infringement

of the plaintiff’s personality rights was objectively unjustifiable, the plaintiff’s action should

nevertheless have failed for the reason that there was no consciousness of the wrongfulness

Causes of Action 23

part of the defendant. Where the unlawful conduct amounted to an unlawful

invasion of the plaintiff’s right to privacy and animus is sufficiently clear from

the allegation of the unlawful conduct, an express averment of animus iniuriandi,

although lacking in the pleadings, may be implied from the other averments

in the pleadings, provided that the implication necessarily flows from

those averments. 81

THE ACTION FOR PAIN AND SUFFERING


The essential elements (facta probanda) of the action are: 82

1. Unlawful conduct by the defendant causing bodily injury,

2. Fault, in the sense of culpa or dolus, on the part of the defendant, and

3. Damnum (harm) in the sense of pain and suffering, loss of the amenities of

life, disability and/or loss of expectation of life caused by the bodily injury.

3.18 Characteristics of the action for pain and suffering

Our law adopts the approach that every person is entitled to live free from pain

and in the enjoyment of those pleasures of life which accrue to the possessor of

a healthy mind and body, and where the unlawful conduct of another causes a

person to lose those advantages, the law affords him or her the comfort which is

assumed to flow from being put in possession of a sum of money derived from an

award of damages awarded against such wrongdoer. 83

The action for pain and suffering was adopted by the Roman-Dutch jurists

under the influence of Germanic customary law. 84 It is now settled that the action

for pain and suffering is sui generis and does not fall within the ambit of the

Aquilian action. 85 The action was developed further by the South African courts

and now protects the physical-mental integrity of a person in its entirety. The

action is available for pain, suffering and disfigurement; psychological or mental

injury; emotional shock and loss of life expectancy; amenities of life and health.

These aspects are all recognised as injuries to the physical-mental integrity of the

person. 86 The damages awarded are in a sense analogous to the solatium which

of the conduct in question; and hence no animus iniuriandi. Dolus was excluded, it was said,

by reason of the ignorance on the part of the prison officials of the wrongful character of

their acts which injuriously affected the plaintiff. For the reasons which follow I am unable

to accede to this argument.’ See also Geary & Son (Pty) Ltd v Gove 1964 (1) SA 434 (A) at 441C.

(This issue is discussed in ch 6 at para 6.9 below).

81

Jansen van Vuuren and Another NNO v Kruger 1993 (4) SA 842 (A); Bennett v Minister of Police

1980 (3) SA 24 (C).

82

Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A) at 838–839.

83


84

Voet Commentiarius 9 2 11; Bester v Commercial Union Versekeringsmaatskappy van SA Bpk 1973

(1) SA 769 (A).

85


86

See, generally, Bester v Commercial Union Versekeringsmaatskappy van SA Bpk 1973 (1) SA 769 (A);

Ngubane v South African Transport Services 1991 (1) SA 756 (A); Administrator, Natal v Edouard

24


is awarded under the actio iniuriarum as a salve to the claimant’s wounded feelings,

87 and bear a direct relationship to the personal sufferings of the injured

party, as they are intended for his or her personal benefit. Once a person dies no

award of damages can achieve the object for which such awards are made. The

right to claim such damages therefore dies with the claimant. 88

THE DEPENDANT’S ACTION 89


The essential elements of the action are: 90

1. A duty of support, and a concomitant right to receive the support, established

by proving that:

(a) The deceased, while he was alive, was under a legal duty to support the

dependant and, if so, that the right deserved protection for the purposes of

the dependant’s action. 91

(b) The dependant is in need of support.

(c) The breadwinner was capable of providing the support.

(d) The dependant had a right to the support (that is the right was capable of

legal protection against third parties).

(e) The right to receive support is assessed by application of the ‘legal convictions

of the community’ test for unlawfulness. 92

2. Unlawful conduct by the defendant which caused the death of the deceased. 93

3. Culpa (or dolus) on the part of the defendant in causing the death of the

deceased.

4. Damnum (harm), in the sense of a real deprivation of anticipated support.

1990 (3) SA 581 (A); Guardian National Insurance Co Ltd v Van Gool NO 1992 (4) SA 61 (A); Hoffa

v SA Mutual Fire and General Insurance Co Ltd 1965 (2) SA 944 (C).

87


88


89

See, generally, Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A) at 838H–839C; Santam

Bpk v Henery 1999 (3) SA 421 (SCA) at 430; Amod v Multilateral Motor Vehicle Accidents Fund

(Commissioner for Gender Equality Intervening) 1999 (4) SA 1319 (SCA); Brooks v The Minister of

Safety and Security 2009 (2) SA 94 (SCA); Minister of Safety and Security v Madyibi 2010 (2) SA

356 (SCA); see generally on loss of support: Neethling et al Law of Delict 6 ed (LexisNexis

2010) at 278 ff; Trynie Boezaart ‘Finding the perfect balance: The challenge of contemporary

private law’ in Trynie Boezaart & Piet de Kock (Eds) Vite perit, labor non moritur: Liber memorialis

(PJ Visser 2008) 153; M C Buthelezi ‘The action of dependants revisited in the light of

Brooks v The Minister of Safety and Security’, 2011 SALJ 642.

90

Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A) at 838H–839C; Santam Bpk v Henery 1999 (3)

SA 421 (SCA) at 430; Amod v Multilateral Motor Vehicle Accidents Fund (Commissioner for Gender

Equality Intervening) 1999 (4) SA 1319 (SCA).

91

Santam Bpk v Henery 1999 (3) SA 421 (SCA) at 425–426; Amod v Multilateral Motor Vehicle

Accidents Fund (Commissioner for Gender Equality Intervening) 1999 (4) SA 1319 (SCA) at [19].

92

The common law has recently been developed to extend the dependant’s action to unmarried

persons in heterosexual relationships, who have established a contractual reciprocal

duty of support: Paixão and Another v Road Accident Fund 2012 (6) SA 377 (SCA) esp paras [1]

and [40] at 378E and 391E–F.

93

Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A) at 838H–839C; Brooks v The Minister of Safety

and Security 2009 (2) SA 94 (SCA) at [8].

3.20 Characteristics of the dependant’s action

Causes of Action 25

This action has been described as ‘anomalous, peculiar and sui generis — but effective.’

94 The rationale for the dependant’s action is that the death of a breadwinner

who has a duty to support the dependants undoubtedly causes pecuniary loss to

those dependants, who should therefore be able to recover such loss from a party

who has unlawfully caused the death of the breadwinner. 95

The cause of action is distinct from the Aquilian action for damages for

bodily injury. The dependant’s action is unorthodox because the duty which

was breached was one owed to the deceased person, but the right to compensation

is that of the dependants, who acquire the right not through the estate

of the deceased person, but automatically on the fact of the death of the breadwinner.

The right to claim is therefore not based on a delict committed against

the dependant, but against the breadwinner. 96 Innes CJ in Jameson’s Minors v

Central South African Railways described the anomaly:

‘While, on the one hand’, said the learned Chief Justice, ‘it resembles the ordinary

action for personal injury in that it is based on culpa, and while the breach of duty

essential to its existence is the breach of a duty owed at the time of the wrongful act to

the injured man; yet, on the other hand, the compensation claimable under it is due to

third parties, who do not derive their rights through his estate, but on whom they are

automatically conferred by the fact of his death.’

The curious nature of the action can be explained by its origins in early Germanic

custom, in which the payment of ‘maaggeld’ was regarded as a conciliation to

obviate revenge by the kinsmen of the deceased.

3.21 Wrongful birth actions 97

As an adjunct to the duty of support which gives rise to the dependant’s action

which arises through the intentional or wrongful injury to a breadwinner, parents

have a potential claim for maintenance and medical costs for the wrongful birth

of a disabled child. The basis of this claim is the doctor’s omission to inform the

parents of the possibility of the baby being disabled and thereby depriving the

parents of the election to keep the child or not.

94

Legal Insurance Co v Botes 1963 (1) SA 608 (A) at 614.

95

Jameson’s Minors v Central South African Railways 1908 TS 575; Evins v Shield Insurance Co

1980 (2) SA 814 (A); Santam Bpk v Henery 1999 (3) SA 421 (SCA) at 427, 429 and 430; Amod v

Multilateral Motor Vehicle Accidents Fund (Commissioner for Gender Equality Intervening) 1999 (4)

SA 1319 (SCA) at 1324.

96

Brooks v The Minister of Safety and Security 2009 (2) SA 94 (SCA) at [10] to [11]. But see, contra,

Neethling et al Law of Delict 6 ed (LexisNexis 2010) at 278–279.

97

See e g Adminsitrator, Natal v Edouard 1990 (3) SA 581 (A). See, generally; Mukheiber v Raath

1999 (3) SA 1065 (SCA); Stewart v Botha 2008 (6) SA 310 (SCA); Friedman v Glicksman 1996 (1)

SA 1134 (W).

26


PRACTICAL ASPECTS OF THE CONCEPT OF THE ‘CAUSE OF ACTION’

3.22 Relevance of the concept of the cause of action

The principles governing the cause of action are of particular relevance to, inter

alia, prescription, exceptions, jurisdiction and res judicata. 98

3.23 Prescription 99

In regard to prescription of claims, if a cause of action for delictual damages has

accrued and the prescriptive period has run, the plaintiff’s right of action has

prescribed. The date of the existence of the facta prabanda becomes crucial to

determining the inception of the prescription period.

3.24 Prescription and the plaintiff’s knowledge of negligence

In Truter and Another v Deysel 100 the plaintiff instituted action against the defendants

for damages for personal injury allegedly sustained by him as a result of the

negligence of the defendants in performing certain medical and surgical procedures.

The plaintiff, despite his efforts, could only secure an expert medical

opinion that the defendants were negligent more than three years after the procedure

in question had been performed. A special plea of prescription was taken.

This was upheld by the Supreme Court of Appeal, which held that a delictual debt

began running when the debt became due. A debt, in turn, became due when the

creditor acquired knowledge of the facts from which the debt arose. For the purposes

of prescription ‘cause of action’ meant every fact which it was necessary for

the plaintiff to prove in order to succeed in his claim (the facta probanda). It did

not comprise every piece of evidence which was necessary to prove those facts

(the facta probantia). The court held that an expert opinion that certain conduct

had been negligent was not itself a fact, but rather evidence. This is because, in

a delictual claim, the requirements of fault and unlawfulness are not factual

ingredients of the cause of action, but are legal conclusions to be drawn from the

facts, and the plaintiff’s cause of action was therefore complete and the debt of

the defendants became due as soon as the first known harm was sustained by the

plaintiff. The plaintiff knew the details of the operations performed on him, that

he had suffered harm, as well as that the two doctors were required to exercise

reasonable care and skill in treating him, more than three years before action was

instituted. As a result, prescription did not begin running only when the plaintiff

obtained an expert opinion that the conduct was negligent.

3.25 Prescription and amendments to pleadings

Where the plaintiff seeks by way of amendment to augment his claim for damages,

he will be precluded from doing so by prescription if the new claim is based upon

a new cause of action and the relevant prescriptive period has run, but not if it was

98

Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A).

99

See, generally, the Prescription Act, 68 of 1969 and the Institution of Legal Proceedings

Against Certain Organs of State Act, 40 of 2002.

100

2006 (4) SA 168 (SCA).

Causes of Action 27

part and parcel of the original cause of action and merely represents a fresh quantification

of the original claim or the addition of a further item of damages. 101

3.26 Pleading unlawfulness and negligence

The question of how the elements of unlawfulness and negligence should be

set out in the pleadings requires consideration. 102 Unlawfulness and negligence,

although elements of delictual liability do not, strictly speaking, have to be specifically

alleged. This is because unlawfulness and negligence are not facts, but

conclusions of law which the courts draw from the facts that the plaintiff has

alleged and proved. 103 The true position is therefore that, although conclusions

of law are often contained in pleadings, their absence cannot be a fatal flaw, since

without them the pleading may yet contain all the facts that a party needs to

prove in order to sustain the cause of action. Boberg 104 states that ‘the plaintiff

must allege, not wrongfulness itself, but such facts as will justify the conclusion

that the defendant’s conduct was wrongful’; the mere allegation of wrongfulness,

being a conclusion of law, can add nothing: ‘it is mere surplusage that can safely

be omitted.’ Having said that, in light of the widespread practice of including a

specific allegation of negligence, it is advisable to specifically allege negligence

and then itemise the grounds of negligence. It should also be borne in mind that,

in the case where an omission or the negligent causing of pure economic loss

is relied on, the consequences of the conduct are not prima facie unlawful and

details of the basis of the unlawfulness are required. 105

Where the case requires a particular assessment of the unlawfulness element,

many policy considerations can be determined without evidence, and unlawfulness

may sometimes be decided on exception. 106 However, it may be difficult to

balance the competing interests at play without full information of the relevant

circumstances. Where evidence is lead, it must be relevant to the policy factors

under consideration. 107 When determining whether the law should recognise the

existence of a legal duty in any particular circumstances what is called for is not

an intuitive reaction to a collection of arbitrary factors but rather a balancing

against one another of identifiable norms. 108

101

Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A) at 836D; Nonkwali v Road Accident Fund 2009

(4) SA 333 (SCA) at [10].

102

See generally in this regard Coronation Brick v Strachan Construction Co (Pty) Ltd 1982 (4) SA

371 (D); Truter v Deysel 2006 (4) SA 168 (SCA).

103

Mabaso v Felix 1981 (3) SA 865 (A) at 874; Coronation Brick v Strachan Construction 1982 (4) SA

371 (D); Boberg 34. See also the approach in Truter v Deysel 2006 (4) SA 168 (SCA).

104

Boberg, The Law of Delict vol 1 Aquilian Liability 2 imp (Juta 1984) at 145.

105

Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 (1) SA

461 (SCA) [13]; BOE Bank Limited v Ries 2002 (2) SA 39 (SCA) paras [12]–[13].

106

Stewart and Another v Botha and Another 2008 (6) SA 310 (SCA); Lillicrap, Wassenaar and Partners

v Pilkington Brothers (SA) (Pty) Ltd 1985 (1) SA 475 (A); H v Fetal Assessment Centre 2014 ZACC 34.

107

Indac Electronics Pty (Ltd) v Volkskas Bank Limited 1992 (1) SA 783 (A) at 797F–G.

108

Van Duivenboden v Minister of Safety and Security 2002 (6) SA 431 (SCA) at [21].

28


3.27 The ‘once-and-for-all’ rule

Expressed in relation to delictual claims, the rule is to the effect that, in general,

a plaintiff must claim in one action all damages, both already sustained and

prospective, flowing from one cause of action. 109 Its purpose is to prevent a multiplicity

of actions based upon a single cause of action and to ensure that there is

an end to litigation. 110

3.28 Res judicata

Closely allied to the “once and for all” rule is the principle of res judicata which

establishes that, where a final judgment has been given in a matter by a competent

court, then subsequent litigation between the same parties, or their privies,

in regard to the same subject-matter and based upon the same cause of action,

is not permissible. The object of this principle is to prevent the repetition of

lawsuits, the harassment of a defendant by a multiplicity of actions and the possibility

of conflicting decisions. 111

3.29 Pleading multiple causes of action

It is the clearly established practice to claim damages under all relevant heads

in a single action and not to bring separate actions. ‘In our practice’, said De

Villiers JA in Matthews v Young 112 as far back as 1922, ‘the necessity for bringing

two separate actions has long since disappeared and there is no objection to the

plaintiff in one and the same action now claiming, if so advised, both kinds of

redress’ — and now, by logical extension (and since Hoffa 113 ), all three causes of

action. As a result of the extension of the Aquilian action to recover compensation

for patrimonial loss sustained, the position is now that where patrimonial

loss was caused by an iniuria, both the Aquilian action and the actio iniuriarum

are available; and where the iniuria results in damage in the form of pain and suffering

and the like, all three remedies are potentially available in the same action

(and are almost invariably so claimed).

This does not however mean that where a person has suffered patrimonial

loss or pain and suffering because of an iniuria he necessarily has an election of

remedies. It is only in exceptional cases that the Aquilian action will be available

for patrimonial loss not arising out of an injury to person or property (so-called

‘pure economic loss’). Moreover, modern Aquilian relief is aimed at compensation

for loss of patrimony, and the requisite fault element is either intention or negligence.

The aim of the actio iniuriarum is satisfaction for an insult — a contumelia

109

See Cape Town Council v Jacobs 1917 AD 615 at 620; Oslo Land Co Ltd v The Union Government

1938 AD 584 at 591; Slomowitz v Vereeniging Town Council 1966 (3) SA 317 (A) at 330; Custom

Credit Corporation (Pty) Ltd v Shembe 1972 (3) SA 462 (A).

110

Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A) at 835D–E; Truter v Deysel 2006 (4) SA 168

(SCA).

111

Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A) at 835F–G.

112

1922 AD 492 at 507.

113

Hoffa v SA Mutual Fire and General Insurance Co Ltd 1965 (2) SA 944 (C).

Causes of Action 29

(that is, any act committed in contempt of another’s personality) — and hence

the requisite fault element is generally intent; negligence will not suffice. 114 These

differing essentialia must be kept in mind at all times.

Moreover, it has recently been held that the same conduct cannot give rise to

two actiones iniuriarum in the hands of the same plaintiff. For example, an assault

gives rise to an actio iniuriarum. A humiliating assault will not give rise to an

additional action for the impairment of dignity. 115

3.30 Identifying the parties

In some cases, identifying the responsible party will be a simple exercise; in

others, this may be more complicated and will have be done from a comparatively

large group, which may include a range of individuals such as a general

practitioner, nursing staff and various specialists as well as institutions, such as

an ambulance service, a clinic or a hospital. 116

The perils of failing to join all potential wrongdoers is demonstrated by the

facts of Van Wyk v Lewis, 117 where a surgeon was sued for negligently failing to

remove a swab used in an operation. A nursing sister who had participated in the

procedure was not joined. The facts of the case were that an urgent and difficult

abdominal operation was performed on the plaintiff. The defendant was assisted

by a qualified nurse on the hospital staff, who acted as theatre sister. At the conclusion

of the operation, one of the swabs used by the defendant was overlooked.

The swab remained in the plaintiff’s body for a period of some twelve months. The

evidence showed that the defendant had relied on the sister to count and check

the swabs, at the conclusion of the operation the defendant had made as careful a

search as the critical condition of the patient and the circumstances allowed, and

that both he and the sister believed that all the swabs were accounted for before

the wound was sewn up. This was all in accordance with the usual practice at the

hospital. The plaintiff sued for damages arising out of the defendant’s negligence

in failing to remove the swab. The Court held that the defendant in performing

the operation was bound to exercise reasonable care and skill, but that it was a

reasonable and proper practice to leave the duty of checking the swabs to the

theatre sister, and that the defendant was therefore not guilty of negligence. As

the sister was not joined in the action, the Court assumed for the sake of argument

— but did not find — that the sister was negligent in checking the swabs, but

held that the defendant would not be liable for the result of such negligence. The

failure to join the sister resulted in the plaintiff being unable to pursue an alternative

claim against her in circumstances where she was potentially negligent.

114

With the exception of strict liability for publication of defamatory statements in the media

— which is beyond the scope of this work.

115

Le Roux v Dey 2011 (3) SA 274 (CC) at 218 para [142].

116

A discussion of the principles relating to joinder, misjoinder and non-joinder is beyond the

scope of this book.

117

1924 AD 438.

4

Unlawfulness (Wrongfulness) 1

4.1 Introduction 2

30

The first principle of the law of delict, so often overlooked, is that everyone

must bear the loss which they suffer. 3 The Afrikaans aphorism is ‘die skade rus

waar dit val.’ 4 The various forms of delictual actions provide an exception to the

rule and, in order to be liable for the loss of someone else, the conduct 5 which

1

On the whole, the term ‘unlawfulness’ is preferred to ‘wrongfulness’. ‘Wrongfulness’, in

common usage, may refer to moral, as well as legal, reprehensibility — a meaning which is

firmly rejected by our courts — see e g Van Eeden v Minister of Safety and Security 2003 (1) SA

389 (SCA) at 395–396 — and goes to the heart of the purpose of the concept as a control

measure demarcating the limits of delictual liability. Nonetheless, the use of ‘wrongfulness’

is firmly entrenched in our law and so, for reasons of pragmatism, the words ‘unlawfulness’

and ‘wrongfulness’ are used synonymously (as our Courts have done — see, e g Thirion J in

Clarke v Hurst NO 1992 (4) SA 630 (D) (at 650); Harms JA in Telematrix (Pty) Ltd t/a Matrix

Vehicle Tracking v Advertising Standards Authority SA 2006 (1) SA 461 (SCA) at [13]; Viv’s Tippers

(Edms) Bpk v Pha Phama Security 2010 (4) SA 455 (SCA) at [5]).

2

See, generally: Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority

SA 2006 (1) SA 461 (SCA); Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431

(SCA); Edouard v Administrator, Natal 1989 (2) SA 368 (D); McIntosh v Premier, KwaZulu-Natal

2008 (6) SA 1 (SCA); Minister van Polisie v Ewels 1975 (3) SA 590 (A); Friedman v Glicksman 1996

(1) SA 1134 (W); Stewart and Another v Botha and Another 2008 (6) SA 310 (SCA); Road Accident

Fund v Mtati 2005 (6) SA 215 (SCA); Mukheiber v Raath and Another 1999 (3) SA 1065 (SCA);

Clarke v Hurst NO 1992 (4) SA 630 (D); Hawekwa Youth Camp and Another v Byrne 2010 (6) SA 83

(SCA); Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Rieck 2007 (2) SA 118 (SCA); Viv’s Tippers

(Edms) Bpk v Pha Phama Staff Services (Edms) Bpk h/a Pha Phama Security 2010 (4) SA 455 (SCA);

Country Cloud Trading CC v MEC Department of Infrastructure and Development 2014 (2) SA 214

(SCA); Administrateur, Natal v Trust Bank van Afrika (Bpk) 1979 (3) SA 824 (A); Fourway Haulage

SA (Pty) Ltd v SA National Roads Agency Limited 2009 (2) SA 150 (SCA); Le Roux v Dey (Freedom

of Expression Institute and Authorative Justice Centre as Amici Curiae 2011 (3) SA 274 (CC) at 122;

Dantex Investment Holdings (Pty) Ltd v Brenner and Others NNO 1989 (1) SA 390 (A); Geary and

Son (Pty) Ltd v Gove 1964 (1) SA 434 (A); Gouda Boerdery Bk v Transnet 2005 (5) SA 490 (SCA);

Loureiro and Others v Imvula Quality Protection (Pty) Limited 2014 (3) SA 394 (CC). There has

been something of an avalanche of writing on unlawfulness in recent years, both academic

and judicial. An extensive list of references is contained in Andrew Paizes, ‘Making sense of

wrongfulness’, 2008 SALJ 371 at 412 fn 1.

3

As observed by Harms JA in Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising

Standards Authority SA 2006 (1) SA 461 (SCA) at 468: ‘The first principle of the law of delict,

which is so easily forgotten and hardly appears in any local text on the subject, is, as the

Dutch author Asser points out, that everyone has to bear the loss he or she suffers’; C Asser

Handleiding tot die Beoefening van die Nederlands Burgerlijk Recht: Verbentenissenrecht 9 ed (1994)

part III at 12.

4

‘The loss lies where it falls.’

5

By way of positive act or omission (see paras 4.13–4.14 below).


caused the harm must have been performed negligently or intentionally 6 and, in

addition, must have been unlawful (or, somewhat euphemistically, 7 wrongful).

Unlawfulness is therefore an essential element of delictual liability. 8

4.2 The concept of unlawfulness

The consequences of conduct 9 may be defined as being unlawful if ‘public policy

considerations demand that in the circumstances the plaintiff has to be compensated

for the loss caused by the negligent or intentional act or omission of the

defendant.’ 10 The ultimate determinant of the legal convictions of the community,

and hence unlawfulness, are the legal convictions of the legal policymakers

of the community, such as the legislature and the judiciary, who are expected to

be able to recognise the difference between a personal and possibly idiosyncratic

preference as to what the community’s convictions ought to be and the actually

prevailing convictions of the community. 11

The element of unlawfulness has been described as a measure of control which

the courts use in circumstances where most right-minded people, including

judges, will regard the imposition of liability as untenable, despite the presence

of all other elements of delictual liability. 12 Harms JA in Telematrix (Pty) Ltd t/a

6

Depending on the prerequisites of the cause of action in question (see ch 3 ‘Causes of Action’

above).

7

See, e g Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006

(1) SA 461 (SCA) at 468.

8

Herschel v Mrupe 1954 (3) SA 464 (A) at 485; Lillicrap, Wassenaar and Partners v Pilkington

Brothers (SA) (Pty) Ltd 1985 (1) SA 475 (A) at 496 I–497A.

9

Unlawfulness is founded not on the conduct itself, but on the consequences of the conduct;

see para 4.8 below. Nonetheless, reference is frequently made to ‘unlawful conduct.’ This is

not in itself objectionable provided it is appreciated that negligence cannot occur ‘in the air’.

10


461 (SCA) at 13, Minister van Polisie v Ewels 1975 (3) SA 590 (A) at 597 A–B (‘dat die gelede skade

vergoed behoort te word’); Olitzki Property Holdings v State Tender Board and Another 2001 (3)

SA 1247 (SCA) at para [12]; Anton Fagan ‘Rethinking Wrongfulness in the Law of Delict’ 2005

SALJ 90 at 107–108.

11

In Van Eeden v Minister of Safety and Security (Women’s Legal Centre Trust as Amicus Curiae)

2003 (1) SA 389 (SCA) at [10] the Court held that: ‘The legal convictions of the community

must … be seen as the legal convictions of the legal policymakers of the community, such as

the Legislature and Judges’; in Cape Town Municipality v Bakkerud 2000 (3) SA 1049 (SCA) at

1057 the court stated: ‘Those who do not welcome the approach are distrustful of the scope

which it provides for equating too easily with the convictions of the community a particular

court’s personal perception of the strength of a particular moral or ethical duty’s claim to

be recognised as a legal duty. That is a risk which is not peculiar to this particular problem.

There are many areas of the law in which courts have to make policy choices or choices which

entail identifying prevailing societal values and applying them. But courts are expected to be

able to recognise the difference between a personal and possibly idiosyncratic preference as

to what the community’s convictions ought to be and the actually prevailing convictions of

the community. Provided that courts conscientiously bear the distinction in mind, little, if

any, harm is likely to result.’

12

Per Brand JA in Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd 2009 (2) SA 150

(SCA) at 163–164 at [31]: ‘In the final analysis, the issue of remoteness is again determined by

considerations of policy. Broadly speaking, wrongfulness — in the case of omissions and pure

economic loss — on the one hand, and remoteness on the other, perform the same function.

32


Matrix Vehicle Tracking v Advertising Standards Authority SA 13 gave the following

example of conduct which would not be regarded as unlawful for reasons of

public policy, although harm would be negligently caused:

‘[T]here is obviously a duty — even a legal duty — on a judicial officer to adjudicate

cases correctly and not to err negligently. That does not mean that a judicial officer

who fails in the duty, because of negligence, acted wrongfully. Put in direct terms: can

it be unlawful, in the sense that the wronged party is entitled to monetary compensation,

for an incorrect judgment given negligently by a judicial officer, whether in

exercising a discretion or making a value judgment, assessing the facts or in finding,

interpreting or applying the appropriate legal principle? Public or legal policy considerations

require that there should be no liability …’ 14

It is therefore apparent that there are circumstances in which the courts are not

prepared to impose delictual liability, notwithstanding a negligent or intentional

act which caused harm to another person. This notion is the very essence and

raison d’être of the element of unlawfulness. The concept of unlawfulness demarcates

the limits of the consequences of conduct which the law will regard as

unlawful, whether or not the conduct in question is negligent or intentional, and

the importance of appreciating that there are separate inquiries into unlawfulness

and negligence, each fulfilling a separate function and employing different

tests, must be emphasised.

4.3 The test for unlawfulness

The existence of a general test for unlawfulness has been repeatedly recognised

by our courts. The classic formulation, dealing specifically with unlawfulness in

the context of omissions but establishing the general approach, was set out in

Minister van Polisie v Ewels: 15

‘Our law has developed to the stage where an omission is regarded as unlawful conduct

when the circumstances of the case are of such a nature that the omission not only

incites moral indignation but also that the legal convictions of the community demand

that the omission ought to be regarded as unlawful and that the damage suffered ought

to be made good by the person who neglected to do a positive act. In order to determine

whether there is unlawfulness the question, in a given case of an omission, is thus not

whether there was the usual “negligence” of the bonus paterfamilias but whether, regard

being had to all the facts, there was a duty in law to act reasonably.’ 16

They are both measures of control. They both serve as a “longstop” where most right-minded

people, including judges, will regard the imposition of liability in a particular case as untenable,

despite the presence of all other elements of delictual liability’; see also e g Country Cloud

Trading CC v MEC, Department of Infrastructure Development 2014 (2) SA 214 (SCA) at [18] and

[19].

13

2006 (1) SA 461 (SCA).

14

At 469.

15

1975 (3) SA 590 (A) at 597.

16

In translation, taken from the headnote. The original passage reads: ‘Dit skyn of dié stadium

van ontwikkeling bereik is waarin ’n late as onregmatige gedrag beskou word ook wanneer

die omstandighede van die geval van so ’n aard is dat die late nie alleen morele verontwaardiging

ontlok nie maar ook dat die regsoortuiging van die gemeenskap verlang dat die late as


Minister van Polisie v Ewels was doubly significant. It removed the restrictions previously

placed on the approach to conduct by omission, 17 and it had a profound

impact on the assessment of unlawfulness. Prior to Minister van Polisie v Ewels

there were two options open to our courts. The one option was to determine

specific stereotypical categories of omission which would be unlawful; the other

option was to adopt ‘a wider, more open-ended general principle, which, while

comprehending existing grounds of liability, would lay the foundation for a more

flexible and all-embracing approach to the question whether a person’s omission

to act should be held unlawful or not. The court made the latter choice; and, in

doing so, cast the courts in a general policymaking role in this area of the law.’ 18

Minister van Polisie v Ewels, decided in 1975, therefore foreshadowed the preference

for a values-based model of law to a rule-bound model, and undoubtedly

contributed to the assimilation of our common law principles into the post-Constitutional

legal landscape. 19 Ironically, there seems to be less reference recently

to Ewels as the touchstone for the meaning of unlawfulness (probably due to

the developing notion that reasonableness in the context of unlawfulness concerns

the reasonableness of imposing liability on the defendant for the harm

caused from the conduct, which is entirely distinct from the reasonableness of

the defendant’s conduct.) 20

In articulating the general test for unlawfulness, the Supreme Court of Appeal

has on a number of occasions 21 given its imprimatur to the following time-honoured

passage from Fleming, 22 who stated that the decision whether to impose a

legal duty

‘… is the outcome of a value judgment, that the plaintiff’s invaded interest is deemed

worthy of legal protection against negligent interference by conduct of the kind alleged

against the defendant. In the decision whether or not there is a duty, many factors

onregmatig beskou behoort te word en dat die gelede skade vergoed behoort te word deur die

persoon wat nagelaat het om daadwerklik op te tree. Om te bepaal of daar onregmatigheid is,

gaan dit, in ’n gegewe geval van late, dus nie oor die gebruiklike “nalatigheid” van die bonus

paterfamilias nie, maar oor die vraag of, na aanleiding van al die feite, daar ’n regsplig was

om redelik op te tree’.

17

See paras 4.13 and 4.14 below.

18

M M Corbett in a lecture reported sub nom ‘Aspects of the Role of Policy in the Evolution of

the Common Law’ (1987) SALJ 104 at 67. The passage has been cited with approval in, inter

alia, Cape Town Municipality v Bakkerud 2000 (3) SA 1049 (SCA) at [16].

19

See ch 1 above.

20

See para 4.5 below and also Le Roux v Dey (Freedom of Expression Institute and Restorative Justice

Centre as Amici Curiae) 2011 (3) SA 274 (CC) at para 122; F v Minister of Safety and Security and

Others 2012 (1) SA 536 (CC). The irony of the decreasing reliance on Minister van Polisie v Ewels

1975 (3) SA 590 (A) lies in the fact that it is the continued development of the wider, more

open-ended general principle preferred in which has led to a more frank acknowledgment of

the policy considerations at play, and which has resulted in the reassessment of what is meant

by reasonableness in the context of unlawfulness.

21

See e g: Knop v Johannesburg City Council 1995 (2) SA 1 (A) at 27; Faircape Property Developers

(Pty) Ltd v Premier, Western Cape 2003 (6) SA 13 (SCA) at [38] and Minister van Polisie v Ewels

1975 (3) SA 590 (A).

22

Fleming The Law of Torts 4 ed at 136.

34


interplay: the hand of history, our ideas of morals and justice, the convenience of

administering the rule and social ideas as to where the loss should fall. Hence, the incidence

and extent of duties are liable to adjustment in the light of the constant shifts

and changes in community attitudes.’ 23

The Constitution is the supreme law of the land, and no norms or values that

are inconsistent with it can have legal validity. When applying the Ewels test

of the ‘legal convictions of the community,’ the courts are now bound to apply

the norms and values of our society as reflected in the Constitution. 24 This has

the effect of making the Constitution a system of objective, normative values

for legal purposes, and where an infringement of an entrenched right in terms

of the Constitution has occurred, the courts ‘have a particular responsibility in

this regard and are obliged to “forge new tools” and shape innovative remedies,

if need be, to achieve that goal.’ 25

4.4 The ‘duty of care’

Our courts and commentators on occasion refer to the notion of a ‘duty of care’.

This concept is foreign to our law. The concept of the ‘duty of care’ is cast in

the language of the English law. The principles underlying the South African

law are different, and the differences in the legal structure between English and

South African law must be clearly understood in order to avoid confusion. 26 The

concept of the ‘duty of care’ in English law amalgamates considerations of fault

23

The nature of the value judgment to be made by a court in determining whether negligent

conduct should give rise to liability is put as follows by Boberg The Law of Delict vol 1 Aquilian

Liability 2 imp (Juta 1984) at 33: ‘At the root of each of these crystallised categories of wrongfulness

[a reference to categories of acts or omissions giving rise to the damage alleged, but

which have, in effect, been subsumed within broad principles since the work was written] lies

a value judgment based on considerations of morality and policy — a balancing of interests

followed by the law’s decision to protect one kind of interest against one kind of invasion

and not another. The decision reflects our society’s prevailing ideas of what is reasonable

and proper, what conduct should be condemned and what should not — the boni mores, or, as

Rumpff CJ put it in Minister of Polisie v Ewels 1975 (3) SA 590 (A), the legal convictions of the

community.’

24

See e g: Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies Intervening)

2001 (4) SA 938 (CC) at [33]; Fose v Minister of Safety and Security 1997 (3) SA 786 (CC).

25

Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) at [69]. In Minister of Law and Order

v Kadir 1995 (1) SA 303 (A) at 318E–H, the Court held that ‘… conclusions as to the existence

of a legal duty in cases for which there is no precedent entail policy decisions and value judgments

which “shape and, at times, refashion the common law [and] must reflect the wishes,

often unspoken, and the perceptions, often dimly discerned, of the people” (per M M Corbett

in a lecture reported sub nom ‘Aspects of the Role of Policy in the Evolution of the Common

Law’ (1987) SALJ 104 at 67). What is in effect required is that, not merely the interests of the

parties inter se, but also the conflicting interests of the community, be carefully weighed and

that a balance be struck in accordance with what the Court conceives to be society’s notions

of what justice demands’; H v Fetal Assessment Centre 2014 ZACC 34 esp at [13].

26

With potentially dire consequences: see, e g Hawekwa Youth Camp and Another v Byrne 2010 (6)

SA 83 (SCA) at [21] to [22].


and policy. That is not the South African approach. 27 In our law, the enquiry into

the existence of a legal duty is distinct from the negligence enquiry. 28

In McIntosh v Premier, Kwazulu-Natal, 29 the Supreme Court of Appeal cautioned

against the improper use of the expressions ‘duty of care’, ‘duty’ and ‘legal duty’:

‘But the word “duty”, and sometimes even the expression “legal duty”, in this context,

must not be confused with the concept of “legal duty” in the context of wrongfulness

which, as has been indicated, is distinct from the issue of negligence. I mention this

because this confusion was not only apparent in the arguments presented to us in this

case but is frequently encountered in reported cases. The use of the expression “duty of

care” is similarly a source of confusion. In English law “duty of care” is used to denote

both what in South African law would be the second leg of the inquiry into negligence

and legal duty in the context of wrongfulness. As Brand JA observed in Trustees, Two

Oceans Aquarium Trust at 144F, “duty of care” in English law “straddles both elements

of wrongfulness and negligence”.’

Although our courts have preferred the expression ‘legal duty’ to that of ‘the duty

of care’ 30 the phrase ‘legal duty’ is itself potentially ambiguous (as is apparent

from the above passage in McIntosh), in that it may be taken to refer either to

the second leg of the enquiry in Kruger v Coetzee, 31 and thus be misunderstood

as referring to this aspect of negligence; or to the enquiry into unlawfulness. It

is therefore submitted that, in dealing with this semantic bramblebush, catchphrases

of this nature should be treated with caution, and the underlying legal

structure constantly kept in mind and clearly expressed.

4.5 Unlawfulness and fault 32

There would be no need for the requirement of unlawfulness if the law was prepared

to impose liability for any harm to another which was caused negligently

or intentionally. But this attractive simplification would result in the net being

cast too wide, and would accord neither with reality nor with policy, 33 and our

courts have emphatically rejected the notion. 34 For more than three decades,

27

The misuse of the phrase ‘duty of care’ is a particularly well-entrenched example of the perils

of importing foreign legal principles without an understanding of their proper meaning. See,

in this regard, K v Minister of Safety and Security 2005 (6) SA 419 (CC) paras 34–35; Country

Cloud Trading CC v MEC, Department of Infrastructure Development 2014 (2) SA 214 (SCA) at [30].

28

Knop v Johannesburg City Council 1995 (2) SA 1 (A) at 27.

29

2008 (6) SA 1 (SCA) at [12]; see also, recently: Country Cloud Trading CC v MEC Department of

Infrastructure and Development 2014 (2) SA 214 (SCA); H v Fetal Assessment Centre [2014] ZACC

34 at [4].

30

Knop v Johannesburg City Council 1995 (2) SA 1 (A) at 27.

31

1966 (2) SA 428 (A) at 430 E–F.

32

For a discussion of Fault, see ch 6 below.

33

Trustees, Two Oceans Trust v Kantey and Templar 2006 (3) SA 138 (SCA) at [10]; See also Boberg

The Law of Delict vol 1 Aquilian Liability 2 imp (Juta 1984) at 30.

34

See esp Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) at [12]:

‘Negligence, as it is understood in our law, is not inherently unlawful — it is unlawful, and

thus actionable, only if it occurs in circumstances that the law recognizes as making it

unlawful’; Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA

2006 (1) SA 461 (SCA) at [12]: ‘But the fact that an act is negligent does not make it wrongful,

36


the Appellate Division and the Supreme Court of Appeal have emphasised that

unlawfulness as a requirement of the modern Aquilian action is distinct from

the requirement of fault, and that the enquiry into the existence of the one is

discrete from the enquiry into the existence of the other. 35 Nonetheless, the law

of delict has been bedevilled by confused thinking in this regard, and great care

must be taken not to conflate the notions of unlawfulness and negligence. The

Supreme Court of Appeal has in recent years sought to eliminate this confusion

by restating the principles to be applied, in decisions such as Sea Harvest

Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty) Ltd 36 and Minister of Safety

and Security v van Duivenboden. 37

When considering the distinction between the elements of fault and unlawfulness,

a clear understanding of the following concepts is required: 38

1. The ‘general criterion of reasonableness’, which has on occasion been held to

be the criterion for determination of unlawfulness, must not be confused with

the enquiry into the reasonableness of the defendant’s conduct, which is part

of the test for negligence. 39

2. The English-law concept of the ‘duty of care’ (which straddles concepts which

in our law are assessed in terms of both unlawfulness and negligence) is fundamentally

different to our notion of unlawfulness (which is a policy-based

assessment of the legal convictions of the community); 40 and

3. Potentially misleading formulations of the concept of unlawfulness appear in

our case law. These have been described as ‘inaccurate formulations of the test

involved’ 41 and the following criticism has been levelled at them:

‘So, for example, in one case the following was said: “An omission is wrongful if the

defendant is under a legal duty to act positively to prevent the harm suffered by the

plaintiff. The test is one of reasonableness. A defendant is under a legal duty to act

positively to prevent harm to the plaintiff if it is reasonable to expect of the defendant

to have taken positive measures to prevent the harm.”[ 42 ] That, with respect, is not the

test for wrongfulness. With regard to wrongfulness, the concept of a “legal duty” has

nothing to do with the reasonableness of the defendant’s conduct. As was explained

in Minister of Safety and Security v Van‐ Duivenboden, the enquiry under the rubric of

although foreseeability of damage may be a factor in establishing whether or not a particular

act was wrongful.’; Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Rieck 2007 (2) SA 118 (SCA)

at [9] to [10].

35

See, e g: Sea Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty) Ltd 2000 (1) SA 827

(SCA) at [19].

36

2000 (1) SA 827 (SCA).

37

2002 (6) SA 431 (SCA).

38

See F D J Brand ‘Reflections on wrongfulness in the law of delict’, 2007 SALJ 76 at [9] for

a general discussion of the position, and see esp his comment and reasons therefor that

‘Unfortunately, some confusion has crept in, even in some judgments of the SCA, between

the elements of negligence and wrongfulness.’

39

This is dealt with at para 4.6 below.

40

This is dealt with at para 4.3 above.

41

F D J Brand ‘Reflections on wrongfulness in the law of delict’, 2007 SALJ 76 at [9].

42

Van Eeden v Minister of Safety and Security 2003 (1) SA 389 (SCA) at [9].


wrongfulness is whether “the negligent omission occurred in circumstances that the

law regards as sufficient to give rise to a legal duty to avoid negligently causing harm”.

Otherwise stated, if we talk about a “legal duty” in the present context, we mean no

more and no less than a duty not to be negligent. Questions as to whether the defendant

could reasonably be expected to have taken any positive measures at all and, if so, what

positive measures should reasonably have been taken, form part of the enquiry into

negligence. As was emphasized by Holmes JA in Kruger v Coetzee, these questions form

part of the requirement in (a)(ii) of the test formulated in that case.’ 43

4.6 The general criterion of reasonableness 44

For many years, the standard academic view of the nature of unlawfulness in

the South African law of delict was stated as: a harm-causing act was wrongful

if, and only if, it was unreasonable — that being judged from an ex post facto

perspective. 45 In recent years, there has been a reassessment of the accuracy of

the proposition. 46 This has led to academic criticism of this formulation of the

concept of unlawfulness, and clarification by our courts in decisions such as Sea

Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage 47 and Minister of Safety and

Security v Van Duivenboden. 48 It has been said that, in cases which followed the

standard academic formulation of unlawfulness, ‘[w]hat was obviously referred

to was the policy consideration whether or not it would be reasonable to impose

liability on the defendant.’ 49

That may be so but it is, with respect, difficult to see why the notion of ‘reasonableness’

is, potentially confusingly, elevated to a position of pre-eminence

amongst the considerations which the courts may take into account in assessing

legal policy when considering the unlawfulness of particular conduct. The

concept of the legal convictions of the community is broad enough to encompass

43

F D J Brand ‘Reflections on wrongfulness in the law of delict’, 2007 SALJ 76 at [9] to [10].

44

For an influential criticism of the previous standard academic view, see esp Anton Fagan

‘Rethinking Wrongfulness in the Law of Delict’ 2005 SALJ 90 at 107–108. Differing formulations

of the test have been used, and it has been held that the unlawfulness of harm-causing

conduct turns on ‘a general criterion of unreasonableness’, ‘considerations of policy’ and on

‘the legal convictions of the community’; National Media Ltd v Bogoshi 1998 (4) SA 1196 (SCA)

at 1204 D–E; Cape Town Municipality v Bakkerud 2000 (3) SA 1049 (SCA) at 1056E–1057G;

SM Goldstein and Co (Pty) Ltd v Cathkin Park Hotel (Pty) Ltd 2000 (4) SA 1019 (SCA) at 1024

F–G; Van Eeden v Minister of Safety and Security 2003 (1) SA 389 (SCA) at 395I–396B; Premier,

Western Cape v Faircape Property Developers (Pty) Ltd 2003 (6) SA 13 (SCA) at 32 B–C; Minister

of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) at 442 C and 444 C; F D J Brand

‘Reflections on wrongfulness in the law of delict’, 2007 SALJ 76; Neethling ‘The conflation of

wrongfulness and negligence: is it always such a bad thing for the law of delict?’ 2006 SALJ

204; RW Nugent ‘Yes, it is always a bad thing for the law: A reply to Professor Neethling’ 2006

SALJ 557; Andrew Paizes ‘Making sense of wrongfulness’ 2008 SALJ 371.

45

Fagan ‘Rethinking Wrongfulness in the Law of Delict’ 2005 SALJ 90 at 91. This view on occasion

found its way into our case law. See, e g: Government of the Republic of South Africa v Basdeo

1996 (1) SA 355 (A) at 367; Gouda Boerdery Bk v Transnet 2005 (5) SA 490 (SCA).

46

See esp Fagan ‘Rethinking Wrongfulness in the Law of Delict’ 2005 SALJ 90.

47

2000 (1) SA 827 (SCA).

48

2002 (6) SA 431 (SCA).

49

F D J Brand ‘Reflections on wrongfulness in the law of delict’, 2007 SALJ 76 at [9].

38


a variety of considerations, including notions of reasonableness where appropriate.

It is inherent in the modern South African legal system’s emphasis on the

role of legal values that the courts should be given a wide mandate in conducting

an assessment of appropriate legal policy: the considerations referred to in the

oft-quoted passage in Fleming 50 of ‘[t]he hand of history, our ideas of morals and

justice, the convenience of administering the rule and social ideas as to where

the loss should fall’ are by no means dependent upon the touchstone of reasonableness.

Should the notion of reasonableness not then be left in relative peace to

play its proper role in the determination of negligence?

4.7 Practical application of the element of unlawfulness

In the overwhelming majority of medical malpractice cases, the issue of unlawfulness

is uncontentious — and very often not even expressly dealt with. 51 There

are two reasons for this. Firstly, a rebuttable presumption of unlawfulness frequently

operates due to the principle that it is prima facie unlawful to cause physical

injury to another by positive conduct 52 — and, in practice, that presumption

is often not challenged. Secondly, the defences raised in these matters, if established,

serve as justifications for prima facie unlawful conduct, and conclusively

eliminate the unlawfulness of the conduct. 53

That said, it should not be understood that the element of unlawfulness is

unimportant in medical malpractice. In fact, the converse is true. The nature of

medical malpractice cases is such that an inquiry into omissions is often called

for. As conduct in the form of an omission is not prima facie unlawful, these

cases intrinsically involve an examination of the unlawfulness element, even

where this is not expressly dealt with. Moreover, due to the dynamic and rapidly

developing nature of modern medicine, combined with the intrinsically personal

sphere in which this branch of the law operates, the field is ripe for the exercise

of a policy-based judicial discretion where there is no established principle determining

unlawfulness. 54 A number of seminal cases have already grappled with

this issue, and it can only be expected that more instances will arise in future. 55

50

‘The Law of Torts 4 ed at 136 (referred to at footnote 22 above).

51


52

See, e g: Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 (1) SA 475

(A) at 497 B–C; Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) at

441 E–G. (However, not all infringements are prima facie unlawful. In respect of omissions,

infringements of dignity and invasions of privacy — all relevant to the field of medical malpractice

— prima facie unlawfulness must be determined using the criterion of the legal convictions

of the community, see Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty)

Ltd 2006 (3) SA 138 (SCA) at 144. And see, generally: Brand ‘Reflections on Wrongfulness in

the Law of Delict’ 2007 SALJ 76 at 78–79).

53

See e g Van der Walt & Midgley The Principles of Delict 3 ed, para 85.

54

See, generally, Anton Fagan ‘Rethinking Wrongfulness in the Law of Delict’ 2005 SALJ 90 at

90.

55

See e g Clarke v Hurst NO and Others 1992 (4) SA 630 (D); Administrator, Natal v Edouard 1990 (3)

SA 581 (A); Castell v De Greef 1993 (3) SA 501 (C) at 509.

4.8 Unlawfulness ‘in the air’


Unlawfulness is founded not on the conduct itself, but on the consequences of

the conduct. 56 In Premier, Western Cape v Faircape Property Developers (Pty) Ltd 57

the Court stated ‘for an act or an omission to be actionable, it must constitute an

infringement of a legal interest. Just as there cannot be negligence in the air, so,

too, there cannot be wrongfulness (the breach of a legal duty) in the air: “it is as

well to remember that conduct which is lawful to one person may be unlawful

towards another”.’ 58

Conduct may therefore be described as delictually unlawful only if it has as

its consequence the factual infringement of an individual interest. As Van Reenen

J stated in Thomas v BMW South Africa (Pty) Ltd: 59 ‘There can be no delict in the

absence of a wrongful act or omission on the part of a wrongdoer. An act or omission

can be characterised as wrongful only if it results in damnum [damage]. Until

that happens, an act or omission constitutes no more than “negligence in the air”.

Wrongfulness is not simply an attribute of a wrongdoer’s conduct but a function

of that conduct together with its consequences in relation to a particular person.’

The manner in which the courts apply this principle is illustrated with reference

to the question of whether the unborn child enjoys rights of personhood.

In RAF v Mtati, 60 a pregnant woman had sustained injuries as a result of the

negligent driving of a motor vehicle. Five months later a child was born with

brain injuries. The plaintiff claimed that the injuries were caused by the negligent

driving of the motor vehicle. The defendant entered a special plea contending

that a foetus in utero could not be regarded as a person (a legal subject)

and that the driver of the motor vehicle could therefore not have acted unlawfully

towards the unborn child when he caused the accident. The issue before the

court was whether our law recognises an actionable right for pre-natal injuries to

a foetus in utero where a child is subsequently born alive. The Supreme Court of

Appeal recognised the right to claim for pre-natal injuries on policy grounds. The

reasoning of the Court 61 was that it would be intolerable if our law did not grant

56

Thomas v BMW South Africa (Pty) Ltd 1996 (2) SA 106 (C) at 120; Mukheiber v Raath and Another

1999 (3) SA 1065 (SCA) at 1075; Overseas Tankship (UK) Limited v Morts Dick and Engineering

Company Limited [1961] 1 ALL ER 404 (PC); Neethling et al Law of Delict 6 ed (LexisNexis

2010) 34 fn 9.

57

2003 (6) SA 13 (SCA).

58

At [41], quoting Harms JA in SM Goldstein and Company (Pty) Ltd v Cathkin Park Hotel (Pty) Ltd

and Another 2000 (4) SA 1019 (SCA) at 1024 F–G; Overseas Tankship (UK) Limited v Morts Dick

and Engineering Company Limited [1961] 1 ALL ER 404 (PC) (Wagon Mound No 1) at 415A,

where Viscount Simonds stated: ‘But there can be no liability until the damage has been

done. It is not the act but the consequences on which tortious liability is founded. Just as (as

it has been said) that there is no such thing as negligence in the air, so there is no such thing

as liability in the air. Liability is founded not upon the act performed by the defendant but

upon the consequences of that act.’

59

1996 (2) SA 106 (C) at 120 B–C.

60

2005 (6) SA 215 (SCA). See also the discussion of this case in H v Fetal Assessment Centre 2014

ZACC 34 at [50].

61

At [24].

40


such an action, 62 and would result in a wrong being inflicted for which there is

no remedy. The Court then dealt with the more difficult question of whether

such an action should be allowed by using the nasciturus rule 63 or by using the

‘ordinary principles of the law of delict’. 64

The Appellate Division had indicated in an obiter remark in Pinchin v Santam

Insurance Co Ltd 65 that injury to a foetus in ventre matris is actionable, in principle, on

the operation of the nasciturus fiction. 66 However, the application of the nasciturus

rule would provide no solution in cases where the injury to the child took the form

of conduct which occurred before conception (usually in circumstances where the

mother had been injured, such as where she was negligently infected with syphilis

or, it is submitted, HIV). The Court held that such cases cry out for a remedy, and a

theory which denies one should not be accepted. 67 The Court applied the ‘ordinary

principles of the law of delict’ and reiterated that the elements of unlawfulness

and damage must not be conflated. Each is a separate element for delictual liability.

Therefore, no cause of action arises until the child is born, at which point the

child acquires the rights of personhood, and the cause of action is complete because

the unlawful conduct (injury to the foetus) had resulted in the consequence of an

injury to a person (the child who was born alive). The assertion that the driver did

not owe the unborn child a legal duty because he or she had not yet been born was

rejected, but subject to the almost universally accepted limitation 68 that, although

foetal interests may be established while in utero — or even before conception — they

cannot be realised unless the foetus is born alive and attains an existence separate

from that of its mother. 69

62

And thereby adopted the almost universally accepted approach that the foetus has a strong

interest in not being injured by the wrongful act of a third party, but subject to the limitation

that these interests cannot be realized unless the foetus is born alive (see e g the Canadian position:

Duval v Seguin (1973) 40 DLR (3d) 666; Australian: Watt v Rama [1972] VR 353; England and

Wales: Burton v Islington Health Authority, De Martell v Merton and Sutton Health Authority [1992] 3

All ER 833). The question remains whether the criminal law should be invoked as a direct means

of foetal protection (see S v Mshumpa 2008 (1) SACR 126 (E) at 48 ff).

63

That an unborn child is deemed born if doing so is in its interest: Pinchin v Santam Insurance

Co Ltd 1963 (2) SA 254 (W) at 260.

64

RAF v Mtati 2005 (6) SA 215 (SCA) at [27].

65

1963 (2) SA 254 (W).

66

That is, that an unborn child is deemed born if it is in its interests.

67

RAF v Mtati 2005 (6) SA 215 (SCA) at [33].

68

For an international comparison see esp: Duval v Seguin (1973) 40 DLR (3d) 666 (Canada);

Watt v Rama [1972] VR 353 (Australia).

69

In respect of foreseeability, the court in RAF v Mtati 2005 (6) SA 215 (SCA) at [37] quoted

with approval the decision by Fraser J, of the High Court of Ontario in Duval v Seguin (1972)

26 DLR (3D) 418 where it was held that: ‘[the pregnant mother] was plainly one of a class

within the area of foreseeable risk and one to whom the defendants therefore owed a duty.

Was [the unborn child] any the less so? I think not. Procreation is normal and necessary for

the preservation of the race. If a driver drives on a highway without due care for other users

it is foreseeable that some of the other users of the highway will be pregnant women and that

a child en ventre sa mere may be injured. Such a child therefore falls well within the area of

potential danger which the driver is required to foresee and take reasonable care to avoid.’


4.9 Liability for misstatements 70

In Mukheiber v Raath and Another 71 the court dealt with an action founded in

delict on a negligent misstatement in the context of a claim for ‘wrongful conception’.

The plaintiffs, a husband and wife, brought an action against a gynaecologist

who had negligently misrepresented to them that he had sterilised the wife

when in fact no sterilisation was done at all. Relying on the misrepresentation,

the couple stopped using contraception, as a result of which a healthy baby was

conceived and born. The plaintiffs claimed compensation from the defendant

under two heads of pure economic loss: for the costs of confinement of the wife

and for the maintenance of the child until it became self-supporting. The claim

was based on a negligent misrepresentation which caused pure economic loss (as

opposed to injury to person or property) and was not founded in contract. 72 The

Court considered the scope and application of such an action and whether relief

should be granted on the facts of the case. The Supreme Court of Appeal upheld

the claim for both confinement and maintenance costs, but limited liability for

the maintenance of the child to that which rested on the parents to maintain the

child according to their means and station in life, and lapsed when the child was

able to support itself.

Our courts recognise the existence of a cause of action for negligent misstatements

where, in all the circumstances of the case, it can be said that there is a

legal duty not to make the misstatement. 73 Factors which influence the courts

70

A related consideration is the doctor’s duty to advise. The principles relating to this duty

appear, inter alia, from Friedman v Glicksman 1996 (1) SA 1134 (W) and McDonald v Wroe

[2006] 3 All SA 565 (C).

71

1999 (3) SA 1065 (SCA).

72

Our law recognises claims of this nature as an instance of the application of the extended

Aquilian action: Administrateur, Natal v Trust Bank van Afrika Bpk 1979 (3) SA 824 (A).

73

The South African legal position relating to the unlawfulness of a misrepresentation was

encapsulated by Corbett CJ in an article entitled ‘Aspects of the Role of Policy in the

Evaluation of our Common Law’ (1987) 104 SALJ 52 at 59: ‘Thus the key to liability is the

existence of a legal duty on the part of the defendant, that is the person making the statement,

not to make a misstatement to the plaintiff, that is the person claiming to have been

damnified by the statement. For without this legal duty there can be no unlawfulness. And

unlawfulness is a sine qua non of Aquilian liability. The legal duty is, however, not an absolute

one. It simply requires the defendant to take reasonable care to ensure the correctness of his

statement before making it. This requirement of a legal duty, together with the nature of the

misstatement and its interpretation, and the question of causation, enables the courts to keep

within bounds the potentially unruly concept of liability for economic loss caused by a negligent

misstatement. In deciding to give its imprimatur to this cause of action, the Appellate

Division unquestionably took a policy decision of paramount importance in the law of delict.

Moreover, as in the case of liability for an omission, the general test adopted for determining

wrongfulness or unlawfulness poses the question whether in all the circumstances of the

case there was a legal duty to act reasonably. The application of this test in each individual

case, where there is no clear precedent, entails the making of a further policy decision, or

value judgment. Here the law must keep in step with the attitudes of society and consider

whether on the particular facts society would require the imposition of liability. Factors

which would no doubt influence the Court in coming to a conclusion would be whether the

extent of the potential loss incurred is finite and identifiable with a particular claimant or

claimants; whether the misstatement relates to a field of knowledge in which the defendant

42


in deciding the issue include: whether the extent of the potential loss incurred

is finite and identifiable with a particular claimant or claimants; whether the

misstatement was made in a business or professional context or merely casually

or in a social context; and whether the loss suffered was a reasonably foreseeable

consequence of the misstatement. A further factor which is of obvious relevance

for present purposes is whether the misstatement relates to a field of knowledge

in which the defendant possesses or professes skill. The existence of these factors

increases the likelihood of the courts attaching liability to a negligent misstatement

made by a medical practitioner to a patient. Once established, the legal

duty is, however, not absolute. Liability for a misstatement does not automatically

follow, and all the circumstances of the case must be considered. The existence

of such a legal duty simply requires the defendant to take reasonable care to

ensure the correctness of his or her statement before making it. 74

4.10 Specific principles regulating unlawfulness relevant to medical

malpractice

A number of principles have been developed by our courts which have particular

relevance to medical malpractice cases. These may, for the sake of convenience,

be dealt with under the following headings, which are specific formulations of

the underlying general principles.

4.11 Unlawfulness and the claim for ‘wrongful birth’

The manner in which the dividing line between causes of action which are recognised

by the courts on policy grounds and those which are not is illustrated

in the cases relating to ‘wrongful birth’ and ‘wrongful’ or ‘diminished’ life. The

former cause of action is dealt with in this paragraph; the latter in paragraph 4.12

below.

Friedman v Glicksman 75 dealt with a so-called ‘wrongful birth’ claim, which survived

an exception that no cause of action was disclosed. The facts of this case

were that an agreement was concluded between a pregnant woman and a doctor

to the effect that he would advise the woman whether there was a greater risk than

normal that she might have a potentially abnormal or disabled child. The reason

for the woman seeking the agreement was so that she might make an informed

decision on whether or not to terminate the pregnancy. The issue in this case

was whether such an agreement was unlawful and contra bonos mores. The Court

found that the agreement did not offend against public policy and was not contra

possesses or professes skill; whether the misstatement was made in a business or professional

context or merely casually or in a social context, whether the loss suffered was a reasonably

foreseeable consequence of the misstatement; and so on.’

74

Mukheiber v Raath and Another 1999 (3) SA 1065 (SCA) at [27]. The reasons for such a duty

arising are set out at [29].

75

1996 (1) SA 1134 (W). A ‘wrongful life’ claim, simultaneously brought on behalf of the child,

received the attention of a South African court for the first time and was refused on the basis

that the claim for ‘wrongful life’ was not valid in contract or in delict; see para 4.12 below.


bonos mores, but sensible, moral and in accordance with modern medical practice.

The woman was, by making such an agreement, seeking to enforce a statutory

right to terminate her pregnancy if there were a serious risk that her child might

be seriously disabled. The Court accordingly held that if a doctor fails to inform

a pregnant patient that she is at greater risk than normal of having an abnormal

or disabled child, or incorrectly informs her that she is not at greater risk when

she reasonably requires such information in order to make an informed choice

whether to terminate such pregnancy, he is delictually liable to her for the damages

she has suffered by giving birth to an abnormal or disabled child.

It should be noted that, as Friedman was argued on exception, the rather

thorny issue of causation was not considered. 76 The issue is fraught with potential

complications, as evidenced by the experience of the English and Canadian

courts. The difficulty is that it is all too easy for the plaintiff to testify that he

or she would have adopted a different course of action had this option been

made known by the medical practitioner, but this is very often entirely divorced

from the reality of the situation. In the English case of Gregory v Pembrokeshire

Health Authority 77 Nicholls LJ was moved to comment that the court was asked to

interpret a ‘hypothetical response to hypothetical advice given at a hypothetical

consultation’. Ultimately, the issue is whether the courts must adopt an objective

or subjective standard of assessment. In the Canadian case of Arndt v Smith, 78 a

nine-judge bench of the Supreme Court held that the correct approach is to consider

what the reasonable patient in the claimant’s circumstances (interpreted in

a wide context) would have done.

4.12 Unlawfulness and the claim for ‘wrongful’ or ‘diminished’ life 79

The ‘wrongful’ or ‘diminished’ life action is a claim brought by a disabled child

seeking compensation for its impaired existence. Courts around the world have

generally shown a reluctance to endorse the action on the basis, so it is said, that

it is implicit in the claim that death is preferable to a sub-standard life. 80 There

is, however, criticism of this reasoning on the basis that ‘it is wrong to accept an

action for wrongful birth, and, at the same time, reject one for wrongful life,’ and

a preference for abandoning the principle of ‘wrongful life’ in favour of ‘diminished

life’. The comparison, so it is contended, should not be between existence

76

The issue was however considered in McDonald v Wroe [2006] 3 All SA 565 (C); Wroe v

McDonald [2011] JOL 29733 (C). See ch 5 below for causation.

77

[1989] 1 Med LR 81.

78

[1996] 7 Med LR 108.

79

The expression ‘wrongful life’ is open to criticism: see H v Foetal Assessment Centre [2014]

ZACC 34, and the expression ‘diminished life’ is more felicitous, as it is both more accurate

and more compassionate.

80

See, e g the USA: Bruggeman v Schimke 718 P 2d 635 (Kan, 1986); the United Kingdom: McKay

v Essex Area Health Authority [1982] 2 ALL ER 771, CA; Australia: Harriton v Stephens [2004]

NSWCA 93. See, contra: Mason et al op cit at 10.73–10.76, who suggest that ‘it is wrong to

accept an action for wrongful birth, and, at the same time, reject one for wrongful life’ and

they favour abandoning the principle of ‘wrongful life’ in favour of ‘diminished life’.

44


and non-existence, but rather with the actual suffering that has been caused. In

support of this view, the minority judgment of Kirby J in the Australian case of

Harriton v Stephens 81 stands as something of a rallying point. The South African

courts’ attitude to this cause of action is at present undergoing something of a

judicial audit, with the conventional approach previously adopted by our courts

being subjected to trenchant jurisprudential analysis.

In Stewart v Botha, 82 a child was born with severe congenital defects. The

child’s father instituted an action on behalf of the child for damages against

the general medical practitioner and the specialist obstetrician and gynaecologist

whom the mother consulted during her pregnancy. The basis of the claim

was that the defendants were, while treating the mother during her pregnancy,

under a duty to detect any abnormalities in the foetus and to advise the mother

thereof, which they negligently failed to do. But for this negligent failure, so the

plaintiff claimed, the woman would have undergone a termination of pregnancy

and consequently the child would not have been born and would not have suffered

from the severe physical handicaps that he did. The defendants disputed

the unlawfulness element of the appellant’s claim. The Supreme Court of Appeal

recognised the parents’ claim for damages flowing from the child’s condition, but

drew a distinction between the parents’ claim and that of the child for the same

damages. 83 The Court held that conduct which caused loss to another was actionable

only if, in addition to being negligent, it was wrongful, i e if public-policy

considerations demanded that, in the particular circumstances, the plaintiff had

to be compensated for his or her loss. 84 It reasoned that, if the child’s claim were

to succeed, the Court would have to find that he would have been better off had

he not been born. 85 The Court found that the question whether the particular

child should have been born at all was a question that went so deeply to the heart

of what it was to be human that it should not even be asked of the law. For that

reason, the Court would not recognise such an action. 86

81

Supra footnote 80.

82

2008 (6) SA 310 (SCA).

83

Claims arising from a similar context, although distinctly different, have received legal recognition

on accepted principles and norms, in our courts and many international jurisdictions.

In Pinchin and Another NO v Santam Insurance Co Ltd 1963 (2) SA 254 (W) the action of

a child to recover damages for an injury done to it whilst in utero was recognised. The claim

by parents against a hospital that agreed and failed to perform a surgical tubal ligation in

order to render the mother sterile, for the cost of maintaining and supporting a child that

was born afterwards, was granted in Administrator, Natal v Edouard 1990 (3) SA 581 (A). The

claim of a mother against a medical practitioner for not having detected and informed her

of the congenital defects in her foetus which she would have aborted had she known about

the defects was recognised in Friedman v Glicksman 1996 (1) SA 1134 (W) and survived the

exception taken against it. In the same case a claim of the child, the same as is presently

under consideration, received the attention of a South African court for the first time and was

refused on public policy considerations.

84

Stewart v Botha 2008 (6) SA 310 (SCA) at paras [5]–[7].

85

Paragraphs [10]–[11] at 315G–316B.

86

Paragraph [28] at 319F.


The Constitutional Court in H v Fetal Assessment Centre 87 dealt with the question

of whether to allow a child to claim compensation for a life with disability

in ‘wrongful life’ cases. Under South African law, where prospective parents are

advised that their child will probably suffer from a serious medical condition

or congenital disability, the law allows the choice not to give birth to the child.

A claim is also recognised by the parents for recovery of patrimonial damages

in circumstances where that kind of medical advice should have been given to

them but was negligently not provided. Until now our law has, however, denied

the child any claim in those circumstances. In H v Fetal Assessment Centre, the

issue came before the Constitutional Court on direct appeal against the decision

of the High Court, which had dismissed the claim on exception, relying on the

judgment of Stewart v Botha. The Constitutional Court considered the question

of whether the legal position should change. The Court was of the view that

the material on record was insufficient for it to make a final determination on

whether the South African common law may possibly be developed to recognise

such an action. The Court, however, did not accept the respondent’s argument

that no amount of further evidence would cure the impossibility of any claim

of that kind, reiterating that our law, including our common law, must conform

to the values of the constitution. The particular values and rights most applicable

to the present case were those of equality, dignity and the right of children

to have their best interest considered of paramount importance in every matter

concerning them. In coming to this conclusion, the Court made extensive obiter

remarks on considerations which should be taken into account in future, which

will have strong persuasive value.

The leading case on the ‘wrongful’ or ‘diminished’ life action, for the moment,

remains Stewart v Botha, 88 although the reasoning of the Court is now open to

doubt.

4.13 Conduct: acts and omissions

Conduct is a general prerequisite for delictual liability. In order for liability to

result, one person must have caused harm to another by means of voluntary

conduct. Conduct may take the form of a positive act (a commissio) or an omission

(omissio). It is often difficult to draw a distinguishing line between conduct

of a positive nature and conduct by way of an omission. This is because many

‘omissions’ are simply indications of legally deficient positive conduct. Driving a

car through a stop street into another car is a course of positive conduct (driving

the car); the failure to stop indicates negligent positive conduct (culpa in faciendo).

It is submitted that in these circumstances one is not dealing with conduct by

omission, but negligent positive conduct. 89 Similarly, a medical practitioner who

87

2015 (2) SA 193 (CC).

88

See footnote 84 above.

89

Van Der Walt & Midgley Delict at 65–66; Neethling et al Law of Delict 6 ed (LexisNexis 2010)

at 30.

46


treats a patient and, during the course of such treatment, fails to take certain steps

which the reasonable practitioner would, in the circumstances, have taken is

performing positive conduct negligently, and the situation is not one of conduct

by omission. Negligent performance of positive conduct must be distinguished

from the case where a person’s failure is not an integral part of positive conduct.

An example of a valid claim for an omission occurred where a mental hospital

had failed to erect any proper fencing around the perimeter of the premises and

no real effort was otherwise made to guard the premises, as the result of which a

dangerous patient had escaped and raped a member of the public. 90

4.14 Unlawfulness in respect of omissions

Liability for omissions has been a source of judicial uncertainty since Roman

times. The underlying difficulty arises from the notion that, while a person

must not cause harm to another, one is generally speaking entitled in law to

mind one’s own business. Negligent conduct that causes physical damage to the

person or property of another is, as we have seen, prima facie unlawful. However,

the element of unlawfulness becomes less straightforward when dealing with

liability for negligent omissions 91 (or with pure economic loss). 92 In order for a

failure to act to be unlawful there must be a legal duty to act. 93 The failure to act

is accordingly presumed to be lawful.

What, then, is the dividing line between a legitimate and an illegitimate failure

to act? In answering this question, the courts employ the element of unlawfulness

as a means of regulating liability in the case of omissions. The courts consider

a failure to act as unlawful only where a legal duty existed on the defendant

to act positively in the circumstances. In turn, whether or not a legal duty to act

existed is a matter for judicial determination involving criteria of public or legal

policy consistent with constitutional norms. 94 As an omission is not prima facie

unlawful, more is needed — policy considerations must dictate that the plaintiff

should be entitled to be compensated by the defendant for the loss suffered. It is

then that it can be said that the legal convictions of society regard the conduct

as unlawful. In Cape Town Municipality v Bakkerud, 95 the Supreme Court of Appeal

had stated that in assessing the unlawfulness of omissions ‘… all that can be said

is that moral and ethical obligations metamorphose into legal duties when “the

legal duties of the community demand that the omission ought to be regarded

as unlawful”. When it should be adjudged that such a demand exists cannot be

the subject of a general rule; it will depend on the facts of the particular case.’

This statement is, however, too widely stated and the same court subsequently

90

SEEMA v Lid van die Uitvoerende Raad vir Gesondheid, Gauteng 2002 (1) SA 771 (T).

91

Trustees, Two Oceans Trust v Kantey and Templar 2006 (3) SA 138 (SCA) at [10].

92

Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 (1) SA 475 (A). A situation

which, for obvious reasons, rarely applies in medical malpractice cases.

93


94


95

2000 (3) SA 1049 (SCA) ([2000] 3 All SA 171) at 14.


clarified the position in Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising

Standards Authority SA 96 by observing that ‘stating that there are no general rules

determining wrongfulness and that it always depends on “the facts of the particular

case” is accordingly somewhat of an overstatement because there are also

some “categories fixed by the law”.’ These categories may change as public policy

considerations change, either by expansion or contraction. The decision as to

whether a particular instance of harm-causing is subject to this duty is therefore

the outcome of the exercise of judicial discretion, which sometimes crystallises

into rules. 97 The legal convictions of the community, thus interpreted, have given

rise over many years to specific factors indicating a legal duty to act positively to

prevent harm.

4.14.1 Interplay of factors

All factors which may indicate the legal convictions of the community are taken

into account in deciding whether there is a legal duty to act. 98 It is often the

case that the existence of a legal duty is due to the interaction of a number of

considerations. 99 Although there is no numerus clausus, the following factors frequently

arise in medical malpractice claims: the existence of a contract (either

between the parties or between the medical practitioner and a third party, such

as a parent); prior conduct on the part of the medical practitioner; control of a

dangerous object or person; rules of law; and a special relationship between the

parties. These categories are by no means watertight compartments and, as is

apparent from the authorities referred to, it is frequently the case that more than

one category applies to the particular facts in issue. Ultimately, the legal convictions

of the community as to whether a legal duty to act positively are assessed. 100

These factors will be considered in turn.

4.14.2 Contract

The existence of a contract between doctor and patient in itself provides a basis for

contractual relief; it also gives rise to a doctor–patient relationship, 101 and brings

the principles of the law of delict into play in the context of an omission. 102 In

the light of the majority judgment in Lillicrap, Wassenaar and Partners v Pilkington

96

2006 (1) SA 461 (SCA) at 469.

97

Ibid.

98

Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) at 444.

99

Saaiman and Others v Minister of Safety and Security and Another 2003 (3) SA 496 (O) at [9]: ‘To

determine whether a legal duty exists or not in any given circumstances entails a careful and

analytical judicial assessment of numerous factors and a delicate balancing of competing

interests of an individual claimant, on the one hand, and those of the community, on the

other.’

100


461 (SCA) at 469.

101

Of course, a contract is not a prerequisite for a doctor–patient relationship, or for delictual

principles to come into play.

102

Van Wyk v Lewis 1924 AD 438 at 443.

48


Brothers (SA) (Pty) Ltd 103 it follows also that it is not the breach of the contract

which creates the delictual liability but the breach of the rights and duties that

arise from the resultant professional relationship. 104 The assumption of contractual

duties is capable of giving rise to delictual liability, and where one is dealing

with an omission (or pure economic loss), the question is whether there are considerations

of public or legal policy which require the imposition of liability for

an omission. 105 The professional medical relationship is usually governed both by

the principles of the law of contract and of delict. The professional relationship

itself would indicate a duty by the practitioner to take positive steps to prevent

harm to the patient. 106 The terms of a contract will play a role in determining

the legal convictions of the community in relation to delictual liability — and

this principle extends to non-contracting parties. 107 It should be emphasised that

delictual obligations and resultant relief are generally more extensive than those

available in contract: 108 where non-patrimonial loss in the form of pain and suffering,

the loss of the amenities of life and the like is claimed, the true cause of

action is the actio iniuriarum, and contractual relief is not available. 109

4.14.3 Prior conduct (omissio per commissionem)

A person acts prima facie unlawfully where he creates a new source of danger

by means of prior conduct and subsequently fails to eliminate that danger with

the result that harm is caused to another person. 110 A conclusion of unlawfulness

may therefore be drawn where harm results in such circumstances. 111 The

existence of prior conduct is therefore an indication of a duty to act positively

to prevent harm, but is not a prerequisite for such a duty. 112 The treatment of a

patient is generally considered to be conduct which gives rise to an obligation to

take positive steps to avoid reasonably foreseeable harm to the patient. 113

4.14.4 Control of a dangerous object or person

Control over a dangerous or potentially dangerous object or person can be a

factor in determining whether a legal duty rested on the person in control thereof

to prevent someone from being injured in the particular situation. 114 Two questions

arise: whether there was actual control, and whether, in the light of inter

103

1985 (1) SA 475 (A), esp at 499.

104

See also para 3.5 above.

105

Viv’s Tippers (Edms) Bpk v Pha Phama Security 2010 (4) SA 455 (SCA) at [8].

106

Van Wyk v Lewis 1924 AD 438.

107

Viv’s Tippers (Edms) Bpk v Pha Phama Security 2010 (4) SA 455 (SCA) at [13].

108

See para 3.5 above.

109

Administrator, Natal v Edouard 1990 (3) SA 581 (A) at 597D; Jansen van Vuuren and Another NNO

v Kruger 1993 (4) SA 842 (A) at 849.

110


111

Minister van Polisie v Ewels 1975 (3) SA 590 (A) at 597.

112

Minister van Polisie v Ewels 1975 (3) SA 590 (A) at 597. The existence of such a duty is always

subject to the flexible nature of the unlawfulness enquiry.

113

Van Wyk v Lewis 1924 AD 438 at 455–456.

114

Van Eeden v Minister of Safety and Security 2003 (1) SA 389 (SCA) at [24].


alia such control, a legal duty rested on the defendant to take steps to prevent

damage resulting from the omission to exercise proper control. The facts and

circumstances of the particular situation are decisive in determining whether

the defendant was under a legal duty to take steps to prevent damage. 115 If a legal

duty exists, injury resulting from the omission to control the dangerous situation

is prima facie unlawful. 116

4.14.5 Rules of law

In certain instances, the law (either common law or statute) places an obligation

on a person to perform certain acts. For example, the courts have recognised a

duty on the state to supply prisoners with medical treatment. 117 A statutory provision

can by implication create a legal duty to act, or it can justify conclusions that

a common-law legal duty exists. 118 Interpretation of statutes plays an important

role. A flexible approach is followed; the question being whether it is equitable

and reasonable to award the plaintiff a claim for damages. Statutory provisions

are of relevance in determining whether governmental bodies and state institutions

are under a legal duty to prevent damage. 119 Statutory provisions on their

own are usually considered in connection with other factors to determine the

unlawfulness or otherwise of an omission. 120 Constitutionally entrenched rights

are strongly indicative of a legal duty upon the state to take positive reasonable

steps to protect the rights. 121

4.14.6 A special relationship between the parties

The existence of a special relationship between the parties may be an indication

that one party had a legal duty towards the other to prevent harm. 122 The doctor/

patient relationship is regarded as a special relationship indicating the potential

existence of such a duty. 123 In the vast majority of cases, the answer to the question

of whether the doctor has a duty to act is therefore disarmingly simple: there is a

duty on the practitioner to act precisely because he or she is the patient’s doctor. 124

115

Administrateur, Transvaal v Van der Merwe 1994 (4) SA 347 (A) 360.

116

Neethling et al Law of Delict 6 ed (LexisNexis 2010) at 64; Seema v Lid van die Uitvoerende Raad

vir Gesondheid, Gauteng 2002 (1) SA 771 (T).

117

Minister van Veiligheid & Sekuriteit v Geldenhuys 2004 (1) SA 515 (SCA) at 529); Moses v Minister

of Safety and Security 2000 (3) SA 106 (C) at 114; Minister of Police v Skosana 1977 (1) SA 31 (A)

at 40.

118

Olitzki Property Holdings v State Tender Board and another 2001 (3) SA 1247 (SCA) at 1257.

119

Cape Town Municipality v Bakkerud 2000 (3) SA 1049 (SCA).

120

Ibid.

121

Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies

Intervening) 2001 (4) SA 938 (CC) at [44]; Minister of Safety and Security v Van Duivenboden 2002

(6) SA 431 (SCA) at [20]; SEEMA v Lid van die Uitvoerende Raad vir Gesondheid, Gauteng 2002 (1)

SA 771 (T).

122

Cathkin Park Hotel v JD Makesch Architects 1993 (2) SA 98 (W) at 100.

123

Van Wyk v Lewis 1924 AD 438 at 455–456. See, however, Stewart and Another v Botha and

Another 2008 (6) SA 310 (SCA) for an example of where the existence of a doctor/patient relationship

did not give rise to a legal duty to act positively.

124

Van Wyk v Lewis 1924 AD 438.

50


In Magware v Minister of Health NO, 125 for example, the plaintiff had sustained a fracture

of his right ankle. He attended the casualty department of a hospital, where a

plaster of Paris cast was improperly applied. The Court held that once the hospital

staff had undertaken treatment there was a special relationship between the staff

and the patient which gave rise to a duty to take positive steps to avoid harm. 126

DEFENCES EXCLUDING UNLAWFULNESS

4.15 Introduction 127

The medical practitioner’s duties towards his or her patient extend beyond a proficiency

in therapy and diagnosis. The practitioner may not treat or even touch the

patient without a valid ground of justification. 128 Medical intervention without

legal justification can give rise to civil liability, or even criminal sanction. A laudable

motive is insufficient: the medical practitioner may sincerely believe that it

is in the patient’s best interests that the treatment should occur; however, this

will not justify the invasion of the patient’s bodily integrity unless a legally recognised

ground for such intervention exists.

4.16 Grounds of justification for medical intervention

The grounds of justification for medical intervention are founded on the legal

convictions of the community, which have hardened into a number of distinct

categories. These categories are not a numerus clausus; however, a number of these

categories are regularly encountered in medical malpractice cases. The most

important are: informed consent, emergencies, necessity, negotiorum gestio and

statutory authority or court order.

4.17 Informed consent

Consent is only legally valid where it is freely given by a patient with the capacity

to consent, on the basis of adequate information as to the nature and consequences

125

1981 (4) SA 472 (Z).

126

See also, Dube v Administrator, Transvaal 1963 (4) SA 260 (W) at 266H; Blyth v van den Heever

1980 (1) SA 191 (A) at 220; Barnett v Chelsea and Kensington Hospital Management Committee

[1968] 1 All ER 1068.

127

The National Health Act, 61 of 2003; The National Patients’ Rights Charter; The Health

Professions Council of South Africa Guidelines; See, generally, Rompel v Botha 1953 (TPD)

unreported (referred to, inter alia in Castell v de Greef; Richter v Estate Hamman 1976 (3) SA 226

(C); Castell v de Greef 1993 (3) SA 501 (C); Castell v de Greef 1994 (4) SA 408 (C); Esterhuizen v

Administrator Transvaal 1957 (3) SA 710 (T); SA Medical and Dental Council v McLoughlin 1948

(2) SA 355 (A) at 366; Broude v McIntosh 1998 (3) SA 60 (SCA); Strauss Doctor, Patient and the

Law 3 ed.; Van Oosten The Doctrine of informed Consent in Medical Law (unpublished doctoral

thesis, Unisa 1989); Sidaway v Governors of Bethlehem Royal Hospital and Others [1985]

1 All ER 643 HL; Bolam v Friern Hospital Management Committee [1957] 2 All ER 118; Giesen

International Medical Malpractice Law (Martinus Nijhoff 1988); R Thomas ‘Where to from

Castell v de Greef? Lessons from recent developments in South Africa and abroad regarding

consent to treatment and the standard of disclosure’ 2007 SALJ 188.

128

Castell v de Greef 1994 (4) SA 408 (C) at 425; Van Oosten The Doctrine of informed Consent in

Medical Law (unpublished doctoral thesis, Unisa 1989) at 14–15.


of the proposed treatment and its alternatives, including non-treatment. 129 A physician

may therefore be liable either where informed consent is totally lacking, or

where it has been inadequately given. 130 The doctrine of informed consent holds

that a patient’s consent to medical treatment is vitiated if he is given inadequate

information concerning the proposed treatment. The focus has increasingly

moved away from a doctor-centred approach to a patient-oriented one. 131

4.18 Refusal of treatment

An understanding of the nature and scope of the concept of informed consent

is usefully informed by a consideration of its antithesis: the right to refuse treatment.

South African law recognises an extensive right to refuse medical treatment.

132 The general rule, from which there are very few exceptions, is that a

person with full legal capacity cannot be forced to undergo medical treatment.

This applies regardless of whether or not the medical practitioner is of the view

that it would be in the patient’s best interests to undergo the treatment in question.

The patient may refuse medical treatment no matter how foolish or misguided

the refusal, and no matter how severe the consequences of refusing treatment

— even to the point of his or her death. 133

4.19 The patient’s autonomy and right to self-determination

Underlying the principles relating to informed consent and the right to refuse

treatment is the emphasis which our courts place on patient autonomy and the

right to self-determination. 134 Because a patient’s interests extend beyond purely

medical considerations, the patient may regard a particular treatment as undesirable

for personal, cultural or religious reasons which are not known to or shared

by the medical practitioner. From the narrow perspective of the medical issues

involved, the treatment may be indicated, but for broader reasons the patient

may regard the treatment as undesirable. Our courts, in keeping with the trend

in jurisdictions around the world, have shown a preference for the notion that ‘it

is clearly for the patient to decide whether he or she wishes to undergo the operation,

in the exercise of the patient’s fundamental right to self-determination.’ 135

4.20 The concept of informed consent 136

The most commonly encountered justification for medical intervention occurs

where a person has consented to the intervention. ‘Informed consent’ has, in

129

Giesen International Medical Malpractice Law (Martinus Nijhoff 1988) at 484.

130

Ibid.

131

Castell v de Greef 1994 (4) SA 408 (C) at 420G.

132

Castell v de Greef 1994 (4) SA 408 (C); Giesen International Medical Malpractice Law (Martinus

Nijhoff 1988).

133

Giesen International Medical Malpractice Law (Martinus Nijhoff 1988); Castell op cit at 421.

134

Castell 1994 (4) SA 408 (C).

135

Castell 1994 (4) SA 408 (C) at 420I.

136

The expression ‘informed consent’ may be, with some superficial justification, considered to

be tautologous. After all, one cannot validly consent without knowing what one is consenting

52


recent years, become something of a term of art in the law of medical malpractice.

This reflects a fundamental shift in the doctor–patient relationship which

has occurred in the last few decades. Previously, doctors were able to rely more

extensively on their own judgment about their patient’s needs for information

and consultation. However, during the course of the twentieth century, the recognition

of patients’ rights of autonomy became more widespread, which resulted

in increased emphasis being placed on the patient’s right to decide whether or

not a particular medical intervention should occur. The classic expression of this

principle is that of Cardozo, J, in the case of Schloendorff v Society of New York

Hospital 137 in which he said, ‘every human being of adult years and sound mind

has a right to determine what shall be done with his own body; and a surgeon

who performs an operation without the patient’s consent commits an assault.’ 138

This shift has been described as one which has moved away from the ‘professional

standards of disclosure approach’ to a ‘patient-based’ approach.

4.21 Informed consent and the doctor–patient relationship

As a general rule, consent is an essential prerequisite for any medical treatment,

and the Roman maxim volenti non fit iniuria 139 provides the jurisprudential basis

for medical interventions being legally justified in the majority of cases. 140 Thus,

the concept of ‘consent’ is no mere bureaucratic or procedural rubber-stamping

of a legal formality. The concept of consent goes to the heart of the doctor–

patient relationship. The physician is not the omniscient curator of the patient’s

best interests, with a paternalistic power to decide on his or her patients’ behalf

what is in their best interests. The physician, rather, stands more accurately in the

position of being the servant, not of life in the abstract, but of the life plans of the

patient. 141 The essence of the relationship is the notion of respect for the patient’s

autonomy, and the law’s protection of individuals’ rights to bodily integrity,

privacy and dignity. Giesen 142 states:

‘In other words, consent envisages a different type of patient-physician relationship

than that posited by traditional medical ethics of Doctor Knows Best — one that

involves social relationships between lay people and health-care professionals built

upon complex layers of mutual loyalty, fidelity, respect and support. There is no room

here for the view that disclosure of relevant information to patients concerning their

to. However, in the medical context the requirements for lawful consent relating to knowledge,

appreciation and acquiescence on the part of the patient assume particular significance

because the patient is usually a lay person in medical matters. Knowledge and appreciation

can therefore only be present on the providing of sufficient information, which therefore

becomes a pre-requisite for consent: it is the emphasis on sufficient knowledge and appreciation

that gives rise to the expression ‘informed consent’.

137

211 N.Y. 125, 105 N.E. 92 (1914).

138

But see, contra, the remarks by Marais JA in Broude v McIntosh 1998 (3) SA 60 (SCA).

139

Claassen Dictionary of Legal Words and Phrases 2 ed vol 4 (LexisNexis) under ‘To one consenting

no harm is done’.

140

The other justifications, dealt with below, are encountered far less frequently in practice.

141

Giesen International Medical Malpractice Law (Martinus Nijhoff 1988) at 488.

142

Giesen, supra, at 487.


condition and treatment is a waste of time because they do not understand the issues

anyway or that the stress of daily work-load of the physician demands that he can’t

concentrate his energies on more important goals. The person who consults a physician

is worried about his most precious assets: life, health, autonomy. He may already

have lost some of the most precious of human freedoms: freedom to move about and

freedom from the power of other persons. But a person’s increased vulnerability and

sickness-induced dependency should not be used as an excuse for more or less eliminating

his autonomy.’

The reality is that passing on information to people with lack of experience or

understanding can be difficult and time-consuming. But the law will not, for this

reason, tolerate proper consent not being obtained, or of the duty to do so being

circumvented or glossed over. Mere lip-service to foundational values of dignity,

equality, privacy and security of the person is unlikely to escape the opprobrium

of a legal system which regards those values as foundational. The task of obtaining

proper consent in these circumstances should be practised and refined, and techniques

developed so that communication is effective and efficient.

4.22 The nature and scope of the required consent

In South African law, for a patient’s consent to constitute a justification that

excludes the wrongfulness of medical treatment and its consequences, the doctor

is obliged to warn a patient so consenting of a material risk inherent in the proposed

treatment.

In Castell v De Greef, 143 the full bench of the Cape Provincial Division (per

Ackermann J) assessed the applicability of the doctrine of informed consent to

South African law. The Court endorsed the view 144 that, for consent to operate as

a defence, the following requirements, must be satisfied:

(a) the consenting party ‘must have had knowledge and been aware of the nature

and extent of the harm or risk’;

(b) the consenting party ‘must have appreciated and understood the nature and

extent of the harm or risk’;

(c) the consenting party ‘must have consented to the harm or assumed the risk’;

and

(d) the consent ‘must be comprehensive, that is extend to the entire transaction

inclusive of all its consequences’. 145

Ackermann, J held: 146

‘In my view we ought, in South Africa, to adopt the above formulation laid down in

Rogers v Whitaker, 147 suitably adapted to the needs of the South African jurisprudence. It

is in accord with the fundamental right of individual autonomy and self-determination

143

1994 (4) SA 408 (C) at 425F–G.

144

Castell v de Greef 1994 (4) SA 408 (C) at 426.

145

Castell v de Greef 1994 (4) SA 408 (C) at 425 H–I (Referred to with approval in <Louwrens v

Oldwage 2006 (2) SA 161 (SCA) at [22]).

146

At 426.

147

[1993] 4 Med LR 79.

54


to which South African law is moving. This formulation also sets its face against

medical paternalism, from many other species whereof South Africa is now turning

away. It is in accord with developments in Canada, the United States of America and

Australia, as well as judicial views on the continent of Europe … I therefore conclude

that, in our law, for a patient’s consent to constitute a justification that excludes the

wrongfulness of medical treatment and its consequences, a doctor is obliged to warn

a patient so consenting of a material risk inherent in the proposed procedure; a risk

being material if, in the circumstances of the particular case:

(a) a reasonable person in the patient’s position, if warned of the risk, would be likely

to attach significance to it; or,

(b) the medical practitioner is or should reasonably be aware that the particular patient,

if warned of the risk, would be likely to attach significance to it.

This obligation is subject to the so-called ‘therapeutic privilege, whatever the ambit of

the so-called “privilege” may today still be.’ 148

What a careful and responsible doctor will disclose depends on the circumstances

of the case. These will include, but not necessarily be restricted to, the

nature of the matter to be disclosed, the nature of the treatment and the desire

of the patient for information and the temperament and health of the patient. 149

The decision in Castell v de Greef is widely regarded as the locus classicus on

informed consent in South African law. However, the test formulated in Castell

has, somewhat surprisingly, never been expressly approved by the Supreme Court

of Appeal. What is more, the ‘reasonable doctor’ approach (expressly rejected by

the full bench in Castell), received a nod of approval in Louwrens v Oldwage. 150

This decision has attracted criticism and, it is submitted, must be viewed with

caution. 151 It should also be noted that the Supreme Court of Appeal did not

overrule the ratio in Castell v De Greef. In the final analysis, it is submitted that

the detailed and persuasive analysis of the principles governing the doctrine of

informed consent in South Africa set out in Castell v De Greef continue to correctly

set out the legal principles.

4.23 The consent of minors 152

An adjunct of the recognition of patient autonomy is an increasing awareness

and recognition of children’s capacity to make health-care decisions. 153 In addition

to the general provisions relating to informed consent to medical treatment

and surgical operations contained in section 129, the Children’s Act, 38 of 2005

specifically deals with the following issues relating to the health of children

148

Discussed below at 4.29.

149

F v R (1983) 33 SASR 189 at 191 (approved in the Australian case of Rogers v Whitaker [1993] 4

Med LR 79 at 51, which was in turn approved in Castell v De Greef 1994 (4) SA 408 (C) at 427).

150

2006 (2) SA 161 (SCA).

151

See, esp, Carstens and Pearmain Foundational Principles of South African Medical Law (2007

LexisNexis, South Africa) at 893; Wilson 2006 De Rebus, 25.

152

See generally, C J Davel & A M Skelton Commentary on the Children’s Act Revision Service 6

(Juta 2013) ch 7 ‘Protection of Children’, esp, ss 129–134.

153

See, e g article 12 of the United Nations Convention on the Rights of the Child.


which involve their consent: HIV-testing, 154 confidentiality of information on

HIV/AIDS status of children 155 and access to contraceptives. 156

A question which frequently arises in practice is how to assess whether a child

is ‘of sufficient maturity and has the mental capacity to understand the benefits,

risks, social and other implications’ 157 of the treatment or surgical operation. In

this respect it is crucial to appreciate that, as with all other patients, the constituent

elements which make up informed consent must be met: the medical

practitioner must assess whether the child has sufficient knowledge, appreciation

and consent to provide informed consent. Our law emphasises the ‘actual

capacity to give informed consent, as determined in each and every case by the

medical practitioner, based on the emotional and intellectual maturity of the

individual concerned and not on arbitrarily pre-determined and inflexible agebased

criteria’. 158 An understanding of the principles underpinning the doctrine

of informed consent is therefore a prerequisite for a proper assessment, as are

the principles relating to the concept of the reasonable medical practitioner, as

the standard expected of the medical practitioner in assessing the maturity and

capacity of the child is, as always, that of the reasonable medical practitioner in

the particular branch of the profession and, provided this standard is met, the

practitioner will not be negligent.

4.24 Consent to medical treatment and surgical operation by children

Consent to medical treatment and surgical operation by children is governed by

section 129 of the Children’s Act, 2005. 159 The section provides that a child may

consent to medical treatment if the child is over the age of 12 years and is of

sufficient maturity and has the mental capacity to understand the benefits, risks,

social and other implications of the risk. 160 A child may consent to the performance

of a surgical operation if, in addition to the factors required for medical

treatment, the child is duly assisted by his or her guardian.

4.25 Consent to termination of pregnancy by children

The Constitution grants everyone the right to bodily and psychological integrity,

which includes the right to make decisions concerning reproduction. 161 Section

5(2) of the Choice on Termination of Pregnancy Act 162 gives legislative effect to

this right, and provides that a girl of any age can consent to a termination of

154

Section 130–132.

155

Section 133.

156

Section 134.

157

See e g ss 129, 130, 132 and 133 of the Children’s Act 38 of 2005.

158

Christian Lawyers Association v Minister of Health (Reproductive Health Alliance as Amicus Curiae

2005 (1) SA 509 (T) at 516.

159

Act 38 of 2005.

160

Section 129(2) of the Children’s Act.

161

The Constitution of the Republic of South Africa, 1996, s 12(2)(a).

162

Act 92 of 1996.

56


pregnancy. 163 She must be advised by a medical practitioner 164 or a registered

midwife or registered nurse 165 to consult with her parents, guardian, family

members or friends before the pregnancy is terminated. Should the minor choose

not to consult as advised, the termination of the pregnancy shall not be denied

for that reason. Section 6 of the Choice on Termination of Pregnancy Act provides

that a woman who requests a termination of pregnancy from a medical

practitioner or a registered midwife or registered nurse shall be informed of her

rights under the Act by such person. 166

The constitutionality of the Choice on Termination of Pregnancy Act was

unsuccessfully challenged in Christian Lawyers Association v Minister of Health

(Reproductive Health Alliance as Amicus Curiae). 167 In dealing with the issue of

informed consent in terms of the Choice on Termination of Pregnancy Act,

the Court held that although ‘informed consent’ is not defined in the Act,

the concept rests on the three independent legs of knowledge, appreciation

and consent. 168 In respect of ‘knowledge’ the Court held that the Choice on

Termination of Pregnancy Act requires that the woman has full knowledge ‘of

the nature and extent of the harm or risk’; ‘appreciation’ implies more than

mere knowledge — the woman must also comprehend and understand the

nature and extent of the harm or risk and, that the ‘consent’ must be comprehensive

in that it must ‘extend to the entire transaction inclusive of its consequences.’

The Choice on Termination of Pregnancy Act does not specifically

provide that the child requesting termination of pregnancy must be sufficiently

mature and have the mental capacity to provide informed consent. However,

as appears from Christian Lawyers Association v Minister of Health (Reproductive

Health Alliance as Amicus Curiae), 169 inherent in the concept of ‘informed

consent’ is the notion that ‘valid consent can only be given by someone with

the intellectual and emotional capacity for the required knowledge, appreciation

and consent.’ 170

163

In terms of s 129(1) of the Children’s Act, the provisions of that section, (which deal with the

consent to medical treatment and surgical operation by children) are subject to s 5(2) of the

Choice on Termination of Pregnancy Act.

164

Section 1 of the Choice on Termination of Pregnancy Act defines a ‘medical practitioner’

as a person registered as such under the Medical, Dental and Supplementary Health Service

Professions Act, 56 of 1974.

165

Section 1 of the Choice on Termination of Pregnancy Act defines a ‘registered midwife’ and a

‘registered nurse’ as a person registered as such under the Nursing Act, 33 of 2005, and who

has in addition undergone prescribed training in terms of this Act.

166

See also s 5(3) of the Choice on Termination of Pregnancy Act.

167

2005 (1) SA 509 (T).

168

At 515. The Court referred with approval to Van Wyk v Lewis 1924 AD 438 at 451; Castell v De

Greef 1994 (4) SA 408 (C) at 425; C v Minister Correctional Services 1996 (4) SA 292 (T) at 300.

169

2005 (1) SA 509 (T).

170

Christian Lawyers Association v Minister of Health (Reproductive Health Alliance as Amicus Curiae)

2005 (1) SA 509 (T) at 516.


4.26 Emergencies and other defences excluding the need for informed

consent

Generally, an adult in full possession of his or her mental faculties is capable

of providing informed consent for the performance of surgery or other medical

treatment. There are a number of situations which generally arise. The defences

of negotiorum gestio and necessity both exist in their own right, as does the notion

of therapeutic privilege. It is, for present purposes, convenient to deal with these

three issues in turn.

4.27 Negotiorum gestio

The law recognises that there are situations in which the patient is unconscious,

in a state of delirium, shock or a coma, or otherwise incapable of providing

informed consent. The principles governing negotiorum gestio (unauthorised

administration) may apply where it is impossible to obtain the patient’s consent

to a medical intervention and it is urgently necessary to save his or her life, or to

preserve his or her health. 171

The defence of negotiorum gestio has the following requirements: 172

(a) there must be a situation of emergency which necessitates the intervention

(that is, there must be an immediate threat to the patient which precludes

waiting for the patient to be in a position to consent); 173

(b) the patient must be incapable of consenting (the defence arises only where it

is impossible to procure the patient’s consent);

(c) the intervention must not be expressly prohibited or against the patient’s will

(the defence implies that the patient would have consented to the intervention

if he or she had been in a position to do so); and

(d) the intervention must be intended to be in the patient’s best interests (the

intervention must be intended to save the patient’s life or protect his or her

health).

4.28 Necessity

Necessity justifies conduct which protects one’s own or another’s legally recognised

interest which is endangered by the threat of harm. 174 Unlike the defence of

negotiorum gestio, the defence of necessity does not necessarily require that the

conduct be performed in the best interests of the individual patient, and broader

considerations of the best interests of society are relevant.

171

Carstens & Pearmain Foundational Principles of South African Medical Law (LexisNexis 2007) at

907, esp fn 235 and the authorities cited therein.

172


907–908.

173

Stoffberg v Elliott 1923 CPD 148; Esterhuizen v Administrator, Transvaal 1957 (3) SA 710 (T).

174

Whether the defence negates the unlawfulness of conduct or whether it excludes fault has

not been finally determined: Crown Chickens (Pty) Ltd v Rocklands Poultry 2007 (2) SA 118

(SCA) at [11]. However, in most cases, this will make no practical difference.

58


The defence of necessity has the following requirements:

(a) An emergency situation must exist or be imminent; 175

(b) the medical intervention must be performed in the best interests of society

(and may therefore apply even where it is against the patient’s wishes); 176

(c) it is not necessary that the patient was incapable of consenting (even where

the patient was capable of consenting or the medical intervention was against

the patient’s will, the defence of necessity may be available). 177

4.29 Therapeutic privilege

Our law recognises that, in a medical context and in order to protect a patient,

a medical intervention may be indicated, but disclosure of the information in

question to the patient would be more harmful than non-disclosure. However,

the concept must be used with caution, as it will not be allowed to be abused as

a false justification to not secure informed consent. A related principle is that of

the so-called ‘doctor’s dilemma’ where the doctor on the one hand may frighten

the patient into not having the operation if he informs the patient of the risks

and, on the other, should he fail to disclose the risks he may render himself liable

to an action for assault. 178

4.30 Statutory authority

There are various statutory provisions which justify a medical intervention or

disclosure of information. A detailed assessment of these provisions is beyond

the scope of this work. 179

4.31 Court order

Medical intervention may be justified by a court order. This may arise where

the religious or cultural beliefs of the patient or of his or her parent precludes

providing consent to the medical intervention. In Hay v B 180 the question of the

refusal by a patient’s parents to consent to a blood transfusion to be performed

on their infant child was held to be at odds with the child’s best interests and the

Court granted an order authorising the blood transfusion. In Clarke v Hurst NO 181

the patient was in a ‘persistent vegetative state’ with no prospects of improvement

and no possibility of recovery. The Court authorised the withholding of

medical or surgical treatment or the discontinuance of any treatment, notwithstanding

that such conduct may have hastened the death of the patient.

175

Crown Chickens (Pty) Ltd v Rocklands Poultry 2007 (2) SA 118 (SCA) at 123.

176


909.

177

Ibid.

178

Therapeutic privilege is now dealt with in s 8(3) of the National Health Act, 61 of 2003 and

s 30 of the Promotion of Access to Information Act, 2 of 2000.

179

See, e g, ss 37(2) and 225(2) of the Criminal Procedure Act 51 of 1977; s 7(1)(d) of the National

Health Act 61 of 2003; and ss 26, 27, 32, 33 and 40 of the Mental Health Care Act 17 of 2002.

180

2003 (3) SA 492 (W).

181

1992 (4) SA 630 (D).

5

Causation

‘In the morass of controversy that surrounds this element of liability …’ 1

5.1 Introduction: the concept of causation 2

No area of the law appears more straightforward or benign, but is in reality potentially

more perilous, than the question of causation in medical law cases.

The basic principle can be simply stated: only causal conduct can give rise to

legal liability. 3 In other words, the wrongdoer can only be delictually liable if

his or her conduct 4 caused the harm in question. 5 This seems clear enough.

But challenges soon arise — some theoretical; others practical — and can easily be

underestimated. On a theoretical level, one commentator was moved to describe

the issue of causation as surrounded by a ‘morass of controversy.’ 6 On a practical

level, the inherent complexity of the human body and its treatment can give rise

to numerous pitfalls for the unwary. These issues have posed profound challenges

to legal systems around the world.

To begin at the beginning: causation in the law of delict gives rise to two

rather distinct problems — the first relates to whether the conduct in question

caused or materially contributed to the harm. If the Court is satisfied that the

1

P Q R Boberg The Law of Delict vol 1 Aquilian Liability 2 imp (Juta 1984) at 380.

2

See, generally: Minister of Police v Skosana 1977 (1) SA 31 (A); Mafesa v Parity Versekeringsmaatskappy

Bpk 1968 (2) SA 603 (O); Minister of Finance v Gore 2007 (1) SA 111 (SCA); Blyth v van den

Heever 1980 (1) SA 191 (A); International Shipping Company (Pty) Ltd v Bentley 1990 (1) SA 680

(A); Chester v Afshar [2004] 3 WLR 927; Barnett v Chelsea and Kensington Hospital Management

Committee [1968] 1 All ER 1068; Coppen v Impey 1916 CPD 309; Michael v Linksfield Park Clinic

2001 (3) SA 1188 (SCA); Stewart and Another v Botha and Another 2007 (6) SA 247 (C); Fairchild

v Glenhaven Funeral Services Ltd [2002] 3 All ER 305; McGhee v National Coal Board [1972] 3 All

ER 1008; Lee v Minister for Correctional Services 2013 (2) SA 144 (CC); S v Mokgethi 1990 (1) SA 32

(A); Wilsher v Essex Area Health Authority [1988] 1 All ER 871 HL; Clinton-Parker v Administrator,

Transvaal; Dawkins v Administrator Transvaal 1996 (2) SA 37 (W); Mukheiber v Raath 1999 (3)

SA 1065 (SCA); Clarke v Hurst NO 1992 (4) SA 630 (D) Gibson v Berkowitz 1996 (4) SA 1029 (W);

McDonald v Wroe [2006] 3 All SA 565 (C); Silver v Premier Gauteng Provincial Government 1998

(4) SA 569 (W).

3

International Shipping Company (Pty) Ltd v Bentley 1990 (1) SA 680 (A) at 700; Minister of Police

v Skosana 1977 (1) SA 31 (A) at 34.

4

It is not strictly accurate to say that the wrongdoer’s negligence caused the harm; negligence

is a conclusion of law which the courts draw from the established facts. The enquiry into

causation is one into an assessment of fact from which the legal conclusions of negligence

and unlawful must be drawn.

5

Of course, the other elements of the claim would have to be present (see ch 3 above).

6

Boberg The Law of Delict vol 1 Aquilian Liability 2 imp (Juta 1984) at 380.

59

60


defendant was the factual cause of the harm, then it proceeds to the inquiry into

the second problem: whether the conduct is sufficiently closely linked to the

harm for legal liability to arise. This is assessed by means of the enquiry into legal

causation. 7 These two enquiries will be examined in turn.

5.2 Factual causation

Put bluntly, the conduct in question either caused the harmful result, or it did

not. This is a factual inquiry, and in many cases, it is obvious in practice whether

or not this has happened. In Minister of Police v Skosana 8 Corbett JA referred to

the following passage from Fleming, The Law of Torts, with approval: ‘The first

[enquiry] involves what may broadly be called the “factual” question whether the

relation between the defendant’s breach of duty and the plaintiff’s injury is one

of cause and effect …’

5.2.1 The ‘but for’ or ‘sine qua non’ test

It has now been authoritatively accepted that factual causation is determined

by the ‘but for’ test 9 as to whether the conduct caused the harm. In applying

this test, the court looks at the facts and asks whether the harm would have

occurred but for 10 the defendant’s conduct (whether by act or omission). 11 If the

harm would not have occurred, then the conduct in question is a factual cause

of the harm. If the harm would in any event have occurred, then the defendant’s

7

On the two legs of the enquiry, see esp Minister of Police v Skosana 1977 (1) SA 31 (A);

International Shipping Company (Pty) Ltd v Bentley 1990 (1) SA 680 (A) at 700; Mukheiber v Raath

and Another 1999 (3) SA 1065 (SCA).

8

1977 (1) SA 31 (A) at 34.

9

Not without consternation in some quarters; a number of commentators have pointed out

the illogical nature of the test, and regard it as a being merely a justification of an a priori

conclusion gained from knowledge and experience (Van Rensburg 1977 TSAR 101; and see

Boberg The Law of Delict vol 1 Aquilian Liability 2 imp (Juta 1984) at 380; Neethling et al Law

of Delict 6 ed (LexisNexis 2010) at 180 ff, esp the commentators referred to at fn 29.) It may

have been tempting to adopt a cheerfully sanguine attitude to the issue, and dismiss it as

mere inconsequential theorising, if it weren’t for the unsettled nature of the law regarding

factual causation in the United Kingdom, and the recent stirrings in our law in Lee v Minister

for Correctional Services 2013 (2) SA 144 (CC), which may well be a harbinger of future travails.

More importantly, it must in fairness at least be conceded that these misgivings may point to

deeper theoretical shortcomings in our principles governing factual causation.

10

Also stated as whether the conduct was a sine qua non of the harm. Minister of Police v Skosana

1977 (1) SA 31 (A); International Shipping Company (Pty) Ltd v Bentley 1990 (1) SA 680 (A); Lee v

Minister of Correctional services 2013 (2) SA 144 (CC).

11

But see the remark by TJ Scott (1977) 10 De Jure 186 at 190 expressing regret that the Appellate

Division did not take cognisance of Van Rensburg’s important work on the subject of causation

(an attitude shared by Boberg The Law of Delict vol 1 Aquilian Liability 2 imp (Juta 1984) at 385:

‘Certainly [Van Rensburg’s] work represents a thoughtful and thought-provoking contribution,

and Van Rensburg’s arguments have a cogency that makes them difficult to resist’). There has

however been recognition of exceptions to the principle — albeit very limited (see para 5.3

below). Portwood v Svamvur 1970 (4) SA 8 (RA) is an example of an exception to the ‘but for test’,

where reference was made to ‘commonsense standards’ (at 15 E). Where there were two concurrent

causes — one an unlawful act and one lawful act — the person responsible for the unlawful

act is just as liable as each of two concurrent joint wrongdoers would be.

Causation 61

conduct is not the factual cause of the harm, and cadit quaestio. In Minister of

Police v Skosana, 12 Corbett JA stated:

‘The test is thus whether but for the negligent act or omission of the defendant the

event giving rise to the harm in question would have occurred. This test is otherwise

known as that of the causa (conditio) sine qua non and I agree with my Brother Viljoen

that generally speaking … no act, condition or omission can be regarded as a cause in

fact unless it passes this test.’

5.2.2 Application of the test to acts and omissions

The ‘but for’ test generally works well in practice. In cases uncomplicated by

concurrent or supervening causes emanating from the unlawful conduct of other

parties, the test provides a well-established basis for establishing a factual nexus. 13

In applying the ‘but for’ test in these cases, a hypothetical enquiry is conducted

into what probably would have happened 14 but for the unlawful act or

omission of the defendant. 15

In relation to positive conduct (a commissio), the conduct must be ‘removed’

from the mind of the person making the assessment, and the question asked

whether the harm to plaintiff would still have occurred.

When assessing an omission, the enquiry requires the substitution of a hypothetical

positive course of conduct for the omission by the defendant, and the

assessment of whether the event causing harm to the plaintiff would still have

occurred or not. A positive answer to this question establishes that the defendant’s

unlawful conduct was not a factual cause, and a negative answer establishes

that it was a factual cause. 16

The facts of The Minister of Police v Skosana 17 demonstrate the application of

the test. The deceased had, whilst heavily under the influence of intoxicating

liquor, driven his motor car off the road and into a ditch, as a result of which

12

1977 (1) SA 31 (A) at 35.

13

Siman & Co (Pty) Ltd v Barclays National Bank Ltd 1984 (2) SA 888 (A) at 914–915 and the

authorities referred to therein. There are however situations where the general application

of the ‘but for’ test is not appropriate. See the discussion on exceptions to the ‘but for’ test at

para 5.3 below.

14

Inherent in this process of hypothetical examination is considerable scope for speculation:

Van Duivenboden v Minister of Safety and Security 2002 (6) SA 431 (SCA) para [25]; Alston and

Another v Marine and Trade Insurance Co. Ltd 1964 (4) SA 112 (W).

15

In International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A) at 700 F–G Corbett CJ restated

the test to be applied: ‘The enquiry as to factual causation is generally conducted by applying

the so-called “but for” test, which is designed to determine whether a postulated cause can be

identified as a causa sine qua non of the loss in question. In order to apply this test one must

make a hypothetical enquiry as to what probably would have happened but for the wrongful

conduct of the defendant. This enquiry may involve the mental elimination of the wrongful

conduct and the substitution of a hypothetical course of lawful conduct and the posing of the

question as to whether upon such an hypothesis plaintiff’s loss would have ensued or not.’

16

Siman & Co (Pty) Ltd v Barclays National Bank Ltd 1984 (2) SA 888 (A) at 914–915; Lee v Minister

for Correctional Services 2013 (2) SA 144 (CC) at para [48].

17

1977 (1) SA 31 (A). The judgment by Corbett JA is important in that it draws a clear distinction

between factual and legal causation. It is also noteworthy because the sine qua non or ‘but for’

test was unequivocally affirmed by four of the five judges.

62


the deceased had been removed in a police van and held in custody. The next

morning, the deceased had complained of pain in his abdomen and had asked a

policeman to take him to a doctor. After a delay of about two hours, the deceased

had been taken to the district surgeon, who had immediately examined him and

instructed a constable to urgently arrange for the deceased to be taken to hospital.

There was then a further delay of about two hours. At the hospital the deceased

was found to be in a very serious condition. A laparotomy was performed. The

viscus was found to be ruptured with severe generalised peritonitis. Despite all

reasonable care and skill by the hospital, the deceased died shortly after leaving

theatre. The Court held that the constables concerned, acting within the course

of their duty and within the scope of their employment, had been negligent (a)

in not immediately summoning the district surgeon and (b) in not causing the

deceased to be taken to hospital immediately thereafter. The Court held that

the plaintiffs had established a negligent delay in providing the deceased with

medical aid and treatment. The Court also found that the plaintiffs had established,

as a matter of probability, that the deceased would have survived if the

operation had been performed earlier, as it would have been but for the negligence

of the constables.

5.2.3 The standard of proof

In applying the ‘but for’ test, the plaintiff need not establish the causal link with

certainty, but only on a balance of probabilities. 18 As was pointed out by Nugent

JA in Minister of Safety and Security v Van Duivenboden: 19

‘A plaintiff is not required to establish the causal link with certainty, but only to establish

that the wrongful conduct was probably a cause of the loss, which calls for a sensible

retrospective analysis of what would probably have occurred, based upon the

evidence and what can be expected to occur in the ordinary course of human affairs

rather than metaphysics.’

18

Blyth v van den Heever 1980 (1) SA 191 (A) at 207 A (considered below); Van Duivenboden v

Minister of Safety and Security 2002 (6) SA 431 (SCA) at para 25; Minister of Finance and Others v

Gore NO 2007 (1) SA 111 (SCA) at para 33; Neethling et al Law of Delict 6 ed (LexisNexis 2010)

at 179 fn 24.

19

2002 (6) SA 431 (SCA) at para 25; In Siman and Co (Pty) Ltd v Barclays National Bank Limited

1984 (2) SA 888 (A) at 917–918, Corbett JA reasserted the common sense standard: ‘Finally, as

in other problems relating to causation in delict, in applying the but-for test the Court should

not overlook the importance of applying common sense standards to the facts of the case.’

Causation 63

Conversely, though, the standard of proving the causal link on a balance of probabilities

must be met; 20 such link cannot be assessed by speculating where, for

example, medical evidence is deficient. 21

5.2.4 The differing standards of proof in regard to causation and damages

Different approaches are adopted to establishing causation and future damages.

The causal connection between damages and the defendant’s act or omission

must be established on a balance of probabilities. 22 In the quantification of

future damages, by contrast, exact calculations are often impossible, and speculation

is thus inevitable. 23

5.2.5 Objective or subjective assessment

A question which in certain circumstances arises is whether the hypothetical positive

conduct to be inserted in the case of an omission must be objectively or subjectively

assessed; in other words, whether the court assesses what the reasonable

person would have done, or what the particular person whose conduct is being

assessed would have done? This arises in particular when the courts evaluate the

20

See generally regarding the approach taken by the courts: Minister of Finance v Gore 2007 (1)

SA 111 (SCA), where the Supreme Court of Appeal held: ‘With reference to the onus resting

on plaintiff, it is sometimes said that the prospect of avoiding the damages through the

hypothetical elimination of the wrongful conduct must be more than 50%. This is often

followed by the criticism that the resulting all-or-nothing effect of the approach is unsatisfactory

and unfair. A plaintiff who can establish a 51% chance, so it is said, gets everything,

while a 49% prospect results in total failure. This, however, is not how the process of legal

reasoning works. The legal mind enquires: What is more likely? The issue is one of persuasion,

which is ill-reflected in formulaic quantification. The question of percentages does not

arise (see to this effect Baroness Hale in Gregg v Scott [2005] 4 All ER 812 HL at para 202).

Application of the “but for” test is not based on mathematics, pure science or philosophy. It

is a matter of common sense, based on the practical way in which the ordinary person’s mind

works against the background of everyday-life experiences.’ (The reference to Gregg v Scott in

Minister of Finance v Gore is of interest, as it refers to a controversial medical malpractice decision

of the House of Lords. The case dealt with the challenging doctrine of so-called ‘loss of

a chance’, which is discussed at para 5.3 below).

21

Minister van Veiligheid en Sekuriteit v Geldenhuys 2004 (1) SA 515 (SCA) at para 41.

22

Minister van Veiligheid en Sekuriteit v Geldenhuys 2004 (1) SA 515 (SCA). Inherent in this process

of hypothetical examination is considerable scope for speculation: Minister of Safety and

Security v Van Duivenboden 2002 (6) SA 431 (SCA) at para [25]. Alston and Another v Marine

and Trade Insurance Co. Ltd 1964 (4) SA 112 (W). This distinction was summarised in the wellknown

words of Lord Diplock in Mallett v McMonagle [1970] AC 166 at 176: ‘The role of the

court in making an assessment of damages which depends upon its view as to what will be

and what would have been is to be contrasted with its ordinary function in civil actions of

determining what was. In determining what did happen in the past a court decides on the

balance of probabilities. Anything that is more probable than not it treats as certain. But in

assessing damages which depend upon its view as to what will happen in the future or would

have happened in the future if something had not happened in the past, the court must make

an estimate as to what are the chances that a particular thing will or would have happened

and reflect those chances, whether they are more or less than even, in the amount of damages

it awards’.

23

The question of compensation for the ‘loss of a chance’ raises similar issues. But see Lord

Nicholls’ questioning of the validity of this distinction in Gregg v Scott [2005] 4 All ER 812 HL

at para [9].

64


exercise of a discretion by a presiding officer or an administrative functionary. 24

The Constitutional Court seems to prefer an objective test. 25 Harms JA posited

a blend of a subjective and objective assessment. 26 Ultimately, however, it must

be kept clearly in mind that one is conducting an assessment of fact, and the

standard to be met is the balance of probabilities. That is to say, the courts assess

the causal significance of the omission in question by inserting the most likely

hypothetical conduct in the circumstances. 27

5.2.6 Examples of the application of the test in medical malpractice cases

In Blyth v Van den Heever, 28 Corbett JA dealt with the issue of factual causation

in a medical negligence claim. The plaintiff had sustained an injury to his right

radius and ulna. He ultimately lost the use of the arm. One of the issues to be

decided was whether there was a factual nexus between the allegedly negligent

conduct and the harm suffered. The court, after a detailed analysis of the medical

facts, held:

‘In determining what in fact caused the virtual destruction of the appellant’s arm, the

court must make its finding on a preponderance of probability. Certainty of diagnosis

is not necessary. If it were, then, in a field so uncertain and controversial as the one

which I have thus far endeavoured to delineate, a definitive finding would become an

impossibility. Bearing in mind that in this case appellant bears the burden of proof,

the question is whether it is more probable than not that largescale ischemia, coupled

with sepsis, caused the damage.’ 29

24

Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC); Minister of Finance v Gore 2007

(1) SA 111 (SCA); Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA).

25

Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC). At para [76] the court held

‘It may well be that in deciding whether a magistrate could or might have refused to release

Coetzee on bail an objective test must be applied and that the evidence of the magistrate who

happened to have been seized with the matter is neither relevant nor admissible. On this

approach the Court would have regard to the law as it should have been applied by a reasonable

magistrate on the facts given to him by the prosecutor. The question of causation, in the

event of the conduct of either the police or the prosecutors being unlawful, was not considered

by the High Court or the SCA. This too is a complex issue that may ultimately depend

on the facts as they emerge at the end of the case’; see also Minister of Finance v Gore 2007 (1)

SA 111 (SCA) at 125–126: ‘Determining what decision they were likely to have reached in the

exercise of their discretion, but for the fraudulent conduct of Louw and Scholtz, inevitably

requires some measure of second-guessing the administrative functionaries. Fortunately we

can take guidance from the decision of this Court in Minister of Safety and Security v Carmichele

that, in a situation such as this, the question is objective: how is a reasonable functionary

likely to have exercised that discretion?’ But see the judgment of Harms JA in Carmichele 2004

(3) SA 305 (SCA) at para [60] and the views of Neethling et al Law of Delict 6 ed (LexisNexis

2010) at 179 ff.

26

Minister of Safety and Security and Another v Carmichele 2004 (3) SA 305 (SCA) at para [60].

27

Minister of Safety and Security and Another v Carmichele 2004 (3) SA 305 (SCA) at para [60];

Minister of Finance v Gore 2007 (1) SA 111 (SCA) at 125–126.

28

1980 (1) SA 191 (A). See also Mafesa v Parity Versekeringsmaatskappy Bpk (in Likwidasie) 1968 (2)

SA 603 (O), where the court had regard to the fact that the second fracture was not reasonably

foreseeable.

29

At 207 A. See also Ocean Accident and Guarantee Corporation Ltd v Koch 1963 (4) SA 147 (A) at

157.

Causation 65

The court found that the defendant, a medical practitioner, had failed to diagnose

and treat the injury as a reasonably skilled and careful medical practitioner

would have done, and that but for this negligent failure the fractures would have

healed and the use of the arm regained: the defendant’s negligence had therefore

caused the loss of the use of the arm, causation was established and the

defendant was held liable. 30 The court weighed the probabilities and found that it

was more probable than not that the plaintiff suffered the injury for the medical

reasons which had been advanced in support of his case.

In the English case of Barnett v Chelsea and Kensington Hospital Management

Committee, 31 three night-watchmen presented themselves at a hospital’s casualty

department complaining that they had been vomiting for three hours after

drinking tea. The hospital staff assumed they had been drinking alcohol and

turned them away. About five hours later one of the watchmen died from poisoning

by arsenic. The court found that the staff had been negligent in not seeing

and examining the watchmen (as the reasonable medical practitioner would have

done). However, the evidence established that the watchman would have died

from the poisoning even if he had been examined and treated with reasonable

care and skill. The negligent failure by the hospital staff did not therefore in fact

cause the death of the watchman, and the claim failed.

When dealing with a failure to act (an omissio), although the conduct to be

inserted is hypothetical and there is scope for considerable speculation, knowledge

and experience play a vital role. The importance of the evidence of expert

medical opinion in this regard is demonstrated by the rather curious case of

Alston and Another v Marine and Trade Insurance Co. Ltd. 32 The plaintiffs, husband

and wife, had been involved in a motor accident and as a result the first plaintiff

suffered manic depression 33 due to an injury to the brain received in the accident.

He was treated with a drug called parstellin. After taking this drug he ate cheese

and as a result he suffered a stroke, which he attributed to the fact that he was

treated with the drug and then ate the cheese. In an action for damages against

the insurer of the vehicle involved in the accident, the Court placed reliance on

expert evidence that the consequence in question — the stroke suffered as the

result of eating cheese — was not predictable by medical science 34 and was therefore

too remote a consequence of the accident to result in liability.

5.3 Exceptions to the ‘but for’ test of factual causation

On the whole, the ‘but for’ test works well in practice. But Boberg’s ‘morass of

controversy’ at times extends to engulf its principles and, on occasion, the application

of the test becomes a source of potential injustice. Nowhere in the law is

30

Blyth v Van den Heever 1980 (1) SA 191 (A) at 207.

31

[1968] 1 All ER 1068.

32

1964 (4) SA 112 (W).

33

Now bipolar disorder.

34

See also Ocean Accident and Guarantee Corporation v Koch 1963 (4) SA 147 (A).

66


this more clearly demonstrated than in medical cases. The problem was well put

by Lord Bingham in Chester v Afshar: 35

‘It is now, I think, generally accepted that the “but for” test 36 does not provide a comprehensive

or exclusive test of causation in the law of tort. Sometimes, if rarely, it yields

too restrictive an answer, as in Fairchild v Glenhaven Funeral Services Ltd. 37 More often,

applied simply and mechanically, it gives too expansive an answer: “But for your negligent

misdelivery of my luggage, I should not have had to defer my passage to New York

and embark on SS Titanic.” But, in the ordinary run of cases, satisfying the “but for”

test is a necessary if not a sufficient condition of establishing causation.’

The problem of the ‘but for’ test providing too expansive an answer is met in South

African law by applying the test of ‘legal causation,’ 38 which is discussed below.

The difficulty of the ‘but for’ test yielding too restrictive an answer has

emerged recently as the subject of influential judicial attention, both in South

Africa and in other common law countries. It is important to bear in mind that

these cases deal with the situation where the usual cause and effect cannot be

established on a balance of probabilities. Causation issues can be particularly

challenging in the medical context because there is frequently a variety of possible

causes of the harm in question, with only some of those being due to the

negligence of the defendant. In these circumstances the strict application of the

‘but for’ test, even on the principle that causation need only be established on a

balance of probabilities, 39 on occasion results in ‘too restrictive an answer’ 40 and

produces the sense of a harm occurring without a remedy.

This issue emerged in the recent Constitutional Court case of Lee v Minister of

Correctional Services. 41 The plaintiff contracted tuberculosis (TB) while incarcerated.

He sued the defendant for damages. It was common cause that the plaintiff

probably contracted TB as a result of being locked up in Pollsmoor Prison.

TB control measures at the prison were, at the time, ‘virtually non-existent.’ 42

The plaintiff had therefore proved negligence and harm. The matter turned on

whether the plaintiff had established a causal link between the two: whether he

had established that the prison’s negligence had caused his injury. The problem

facing the plaintiff lay in the fact that, due to the nature of the disease, he was

not able to pinpoint exactly how he had been infected. 43 His challenge therefore

35

[2004] 3 WLR 927 at [8].

36

Which is the accepted means of determining factual causation in English law.

37

[2002] UKHL 22, [2003] 1 AC 32. The case is discussed below.

38

As it is in other common law jurisdictions.

39

See para 5.2 ‘the standard of proof’ above.

40

Ashcroft v Mersey Regional Health Authority [1983] 2 All ER 245.

41

2013 (2) SA 144 (CC).

42

At [79].

43

Cameron J, in a dissenting judgment, summarised the problem: ‘I pause here to emphasise

the unique nature of TB. It was accepted in the High Court and the Supreme Court of

Appeal that transmission can occur by breathing in just one airborne TB mycobacterium.

A human being, at any one time, may be carrying any number of bacterial cells, from any

possible number of sources. Indeed it was also common cause that in some cases TB will take

hold but remain dormant, while in others it will “multiply and manifest in active disease”.

Causation 67

lay in proving that the failure by the prison authorities to have adequate control

measures in place had caused his injury — stated differently, that ‘but for’ the

failure by the prison authorities, he would not have been infected.

Nkabinde J (for the majority) found that ‘There was thus nothing in our law

that prevented the High Court from approaching the question of causation simply

by asking whether the factual conditions of Mr Lee’s incarceration were a more

probable cause of his tuberculosis, than that which would have been the case had

he not been incarcerated in those conditions. That is what the High Court did

and there was no reason, based on our law, to interfere with that finding’, 44 and

‘[i]t would be enough, I think, to satisfy probable factual causation where the evidence

establishes that the plaintiff found himself in the kind of situation where

the risk of contagion would have been reduced by proper systemic measures.’ 45

Both the Supreme Court of Appeal and the minority in the Constitutional Court,

however, regarded the plaintiff as being in a quandary: ‘Given the indeterminacy

of his source of infection,’ stated Cameron J (for the minority in the Constitutional

Court 46 ) ‘taking reasonable measures could therefore reduce his overall risk of

What is more — and this is perhaps the biggest difficulty the prison authorities face — a

person in whom TB has progressed from “dormant” to “active” will not always immediately

show symptoms. The symptoms may manifest only as the disease progresses. To add to the

complexity, it is possible to be tested for TB, but be screened as “negative”, even though the

bacterium is in fact present. This means that identifying the presence of the bacterium and

indeed the number of cells carried by the host is extremely difficult. Thus, we know exactly

what agent causes TB (the mycobacterium tuberculosis), but science cannot identify which

one of innumerable exposures was the probable source of infection in this case. Hence, in a

prison setting, particularly a large prison like Pollsmoor, the disease cannot always be diagnosed

immediately. So, prisoners with active TB are contagious to others before the prison

can reasonably be expected to diagnose, treat and if necessary isolate them. The result was

that even if [the plaintiff] had shown what steps the prison authorities should reasonably

have taken, the course and ferocity of the disease meant that he would always be at risk of

contagion from undiagnosed fellow prisoners, whatever prison management did. Since reasonable

measures could not eliminate this risk, and since [the plaintiff] could not pinpoint

who had infected him, it was “just as likely as not” that he was infected by a prisoner whom

the prison authorities could not reasonably have known might pass the disease on to him. It

was therefore not possible to find that a negligent omission by the prison authorities probably

caused his infection’ (at [84] to [85]). The particular nature of TB infection therefore placed

an ‘insuperable hurdle’ in his path (at [83]).

44

At [55].

45

At [60]. The reference to ‘common sense’ causation must not, however, allow the eliding of

proof of negligence in relation to particular harm and a foreseeable result of the same type of

harm with proof that the breach was a factual cause of that harm in the specific case at hand,

together with failure to adequately consider whether there was, on the evidence another

possible source of the harm. See, e g the Australian case of Roads and Traffic Authority v Royal

(2008) 245 ALR 653. In a lecture to the Chancery Bar Association entitled ‘Common Sense

and Causing Loss’ given on 15 June 1999, Lord Hoffmann commented adversely on the practice

of justifying decisions by reference to ‘common sense’. He suggested that this was far too

often an unsatisfactory alternative to the identification of the relevant principles. (Referred

to in Stone & Rolls Ltd (in liq) v Moore and Stephens (a firm) [2009] 3 WLR 455, at 460 para [5] by

Lord Phillips of Worth Matravers).

46

The Court was divided by five judges to four. Such slender margins are reminiscent of similarly

divided courts regarding seminal medical cases on causation. See, e g Chester v Afshar

[2004] 3 WLR 927; Gregg v Scott [2005] 4 All ER 812 HL.

68


becoming infected, in general terms — but he could never show that in the specific

instance of his own infection those measures would probably have saved him

from TB. This is because his own infection might equally well have resulted from a

non-negligent exposure.’ 47 The minority judgment referred to the series of innovative

(if controversial) judgments by the English courts which had sought to address

the potential injustice of too rigid an application of the ‘but for’ test. 48 This raises

the question of whether policy-based considerations should be shoehorned into our

principles of factual causation and if so, on what terms, and this issue now seems

set to be ventilated in our courts in the foreseeable future.

In order to appreciate the implications of the minority judgment in Lee, the

following two English cases should be considered. 49 In McGhee v National Coal

Board, 50 James McGhee was employed to clean out brick kilns. Because there

were no shower facilities at his workplace, he would cycle home each day with

coal dust on his skin. This increased the risk that he would contract dermatitis,

47

Lee v Minister of Correctional Services 2013 (2) SA 144 (CC) at [87].

48

See esp McGhee v National Coal Board [1972] 3 All ER 1008, 1 WLR 1; Clark v MacLennan [1983]

1 All ER 416 in which it was held that, in circumstances where a precaution would have been

taken to avoid the precise injury which occurred the onus was on the defendant to establish

that his failure to take this precaution did not cause the plaintiff’s injury. This concept of

‘recognised risk avoidance’ is discussed below. In Ashcroft v Mersey Regional Health Authority

[1983] 2 All ER 245 , heard at the same time as Clark v MacLennan, dealt with facts remarkably

similar to Blyth v Van Den Heever (see the discussion at para 5.2.6 above), in that the plaintiff

had sustained severe paralysis of a facial nerve as the result of a surgeon allegedly pulling too

hard on the nerve. The issue was whether the injury was an act of negligence or excusable

medical misadventure. The court held that it was unable to shift the burden of proof and

accordingly found that, on a balance of probabilities, there was no negligence. The House of

Lords subsequently confirmed this approach in Wilsher v Essex Area Health Authority [1988]

1 All ER 871 HL, where a retrial was ordered on the basis that the coincidence of a breach of

duty and injury could not, of itself, give rise to a presumption that the injury was so caused:

‘Whether we like it or not, the law … requires proof of fault causing damage as the basis of

liability in tort’ (per Lord Bridge at 883). See, also: Chester v Afshar [2004] 3 WLR 927 dealing

with factual causation in informed consent cases; Rees v Darlington Trust [2003] All ER (D)

271; and the ‘mesothelioma cases’ of Fairchild v Glenhaven Funeral Services Limited [2002] 3 All

ER 305 and Barker v Corus UK Limited [2006] 3 All ER 785 .

49

See, also, the Australian case of March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 508, in

which Mason CJ, sitting in the High Court of Australia, did not ‘accept that the “but for” (causa

sine qua non) test ever was or now should become the exclusive test of causation in negligence

cases’ and (at p 516) he added: ‘The “but for” test gives rise to a well-known difficulty in cases

where there are two or more acts or events which would each be sufficient to bring about the

plaintiff’s injury. The application of the test “gives the result, contrary to common sense, that

neither is a cause”: Winfield and Jolowicz on Tort, 13 ed (1989), p. 134. In truth, the application of

the test proves to be either inadequate or troublesome in various situations in which there are

multiple acts or events leading to the plaintiff’s injury: see, e g, Baker v Willoughby [1970] AC 467;

McGhee v National Coal Board [1972] 3 All ER 1008 , 1 WLR 1; M’Kew (to which I shall shortly refer

in some detail). The cases demonstrate the lesson of experience, namely, that the test, applied

as an exclusive criterion of causation, yields unacceptable results and that the results which it

yields must be tempered by the making of value judgments and the infusion of policy considerations.

That in itself is something of an irony because the proponents of the “but for” test

have seen it as a criterion which would exclude the making of value judgments and evaluative

considerations from causation analysis …’

50

[1972] 3 All ER 1008, 1 WLR 1.

Causation 69

which eventually occurred from the accumulation of coal dust on his skin. Had

his employer provided shower facilities, the coal dust could have been washed

off before cycling, reducing the risk of contracting dermatitis. McGhee sued his

employer for negligence for failing to provide proper washing facilities. Due to

the limits of scientific knowledge, it was impossible to rule out the possibility

that he hadn’t contracted dermatitis while working in the kiln, and that the dermatitis

was therefore not caused by the negligence of his employer in failing to

provide washing facilities. The issue which came before the House of Lords was

whether the failure to provide the washing facilities had caused the rash. On the

application of the ‘but for’ test, the claim must have failed. However, the House of

Lords held that the risk of harm had been materially increased by the prolonged

exposure to the dust. Lord Reid stated: ‘The medical evidence is to the effect

that the fact that the man had to cycle home caked with grime and sweat added

materially to the risk.’ The material increase in risk was treated as equivalent to a

material contribution to damage. The implication of the case was significant, as

it meant that a claimant need not demonstrate that the defendant’s actions were

the ‘but for’ cause of the injury, but instead that the defendant’s actions ‘materially

increased the risk’ of injury, and thus damage, to the claimant.

In Fairchild v Glenhaven Funeral Services Ltd, 51 Mr. Fairchild had worked for

a number of different employers, all of whom had negligently exposed him to

asbestos. Mr. Fairchild contracted pleural mesothelioma. He died, and his wife

sued Mr. Fairchild’s employers for negligence. But the claim faced a significant

hurdle: a single asbestos fibre, inhaled at any time, can trigger mesothelioma (the

claim was therefore redolent of Lee v Minister of Correctional Services). 52 The risk

of contracting an asbestos-related disease increases depending on the amount of

exposure to it. The disease also has long latency periods (it can take between 25

and 50 years before symptoms of the disease become evident). It was impossible

to know when Mr. Fairchild inhaled the fatal asbestos fibre, and it was therefore

impossible to identify the particular employer at the crucial time of inhalation.

While it was possible to say ‘it was one of them’; it could not be ascertained which

one. Under the normal causation test, none of the employers would have been

found, on the balance of probabilities, to have caused the harm, because it could

not be said that ‘but for’ the conduct of that particular employer the injury would

not have been caused.

The House of Lords however stated:

‘Tort law is about compensating those who are wrongfully injured. But even more fundamentally,

it is about recognising and righting wrongful conduct by one person or a

group of persons that harms others. If tort law becomes incapable of recognising important

wrongs, and hence incapable of righting them, victims will be left with a sense of

grievance and the public will be left with a feeling that justice is not what it should be.

51

[2002] 3 All ER 305; G Turton ‘Sienkiewicz v Greif (UK) Limited: A cautionary tale for causation’

Journal of Professional Negligence (2011) 27 PN 166–172.

52

2013 (2) SA 144 (CC).

70


Some perceive that this may be occurring due to our rules of causation. In recent years, a

conflation of factors have caused lawyers, scholars and courts to question anew whether

the way tort law has traditionally defined the necessary relationship between tortious

acts and injuries is the right way to define it, or at least the only way. This questioning

has happened in the United States and in England and has surfaced in Australia. And it

is happening in Canada. Why is this happening? Why are courts now asking questions

that for decades, indeed centuries, did not pose themselves, or if they did, were of no

great urgency? I would suggest that it is because too often the traditional “but-for”, all-ornothing,

test denies recovery where our instinctive sense of justice — of what is the right

result for the situation — tells us the victim should obtain some compensation.’ 53

The House of Lords therefore held that, following McGhee v National Coal Board,

the appropriate test in this situation was whether the defendant had materially

increased the risk of harm toward the plaintiff. The employers were accordingly

jointly and severally liable to the plaintiff. In so doing, the House of Lords

approved the test of ‘materially increasing the risk’ of harm, as a deviation in

some circumstances from the ordinary ‘balance of probabilities’ test under the

‘but for’ standard.

5.3.1 The principle of ‘recognised risk-avoidance’

McGhee v National Coal Board led to a further development in the English law. In

Clark v MacLennan, 54 the court held that —

‘It seems to me that it follows from McGhee that where there is a situation in which

a general duty of care arises and there is a failure to take a precaution, and that very

damage occurs against which the precaution is designed to be a protection, then the

burden lies on the defendant to show that he was not in breach of duty as well as to

show that the damage did not result from his breach of duty.’

This ‘recognised risk avoidance’ concept comes very close to the concept of res

ipsa loquitur, which is viewed with antipathy in medical cases. 55 The principle

was ultimately not approved by the House of Lords in Wilsher v Essex Area Health

53

At 11, quoting with approval remarks made by McLachlin J, extra-judicially (“Negligence

Law — Proving the Connection”, in Torts Tomorrow, A Tribute to John Fleming, ed Mullany and

Linden, LBC Information Services 1998, at 16).

54

It must be emphasized that different standards of proof apply to causation and to quantification.

Causation requires the establishment, on a balance of probabilities, of a causal link

between negligence and harm. Quantification, where it depends on future uncertain events,

is decided not on a balance of probabilities, but on the court’s assessment of the chances

of the risk eventuating. Or, as succinctly stated in the Canadian case of Kranz v M’Cutcheon

(1920) 18 Ontario WN 395 (referred to by Lord Hoffmann in Gregg v Scott [2005] 4 All ER 812

HL at [69]): ‘The rule against recovery of damages is directed at uncertainty as to cause rather

than as to extent or measure.’ (De Klerk v ABSA Bank Ltd and Others 2003 (4) SA 315 (SCA), following

the English case of Allied Maples Group Ltd v Simmons & Simmons (A Firm) [1995] 1 WLR

1602 (CA) at 1609E–1610D and 1614C–E; Burger v Union National South British Ins Co 1975 (4)

SA 72 (W)). It should be noted that Allied Maples upheld a claim for ‘loss of a chance’.

55

Both in South Africa and in England: see Cecilia Goliath v Member of the Executive Council for

Health, Eastern Cape (085/2014) [2014] ZASCA 182 (25 November 2014); Buthelezi v Ndaba 2013

(5) SA 437 (SCA); Van Wyk v Lewis 1924 AD 438; Ashcroft v Mersey Regional Health Authority

[1983] 2 All ER 245; Mahon v Osborne [1939] 2 KB 14 . See para 6.32 below.

Causation 71

Authority. 56 In that case the defendant hospital, initially acting through an inexperienced

junior doctor, negligently administered excessive oxygen during the

post-natal care of a premature child who subsequently became blind. Excessive

oxygen was, according to the medical evidence, one of five possible factors that

could have led to blindness. On the ‘balance of probabilities’ test, the hospital

would not be liable, since it was more likely that one of the alternate risks had

caused the injury. The Court of Appeal applied the ‘material increase of risk’

test, first espoused in McGhee v National Coal Board. 57 The Court found that since

the hospital breached its duty and thus increased the risk of harm, and that the

plaintiff’s injury fell within the ambit of that risk, the hospital was liable, despite

the fact that the plaintiff had not proved the hospital’s negligence had caused his

injury. The House of Lords however found, applying a principled approach, that

it was impossible to say that the defendant’s negligence had caused, or materially

contributed, to the injury and the claim was dismissed.

And finally, in Snell v Farrell, 58 Sopinka J, delivering the judgment of the

Supreme Court of Canada, said:

‘The traditional approach to causation has come under attack in a number of cases in

which there is concern that due to the complexities of proof, the probable victim of

tortious conduct will be deprived of relief. This concern is strongest in circumstances

in which, on the basis of some percentage of statistical probability, the plaintiff is the

likely victim of the combined tortious conduct of a number of defendants, but cannot

prove causation against a specific defendant or defendants on the basis of particularised

evidence in accordance with traditional principles.’

The Court dealt with the issue by upholding the ‘traditional approach’ to factual

causation, but regarded the problem as lying in its application:

‘I am of the opinion that the dissatisfaction with the traditional approach to causation

stems to a large extent from its too rigid application by the courts in many cases.

Causation need not be determined by scientific precision. It is, as stated by Lord Salmon

in Alphacell Ltd. v. Woodward, [1972] 2 All E.R. 475, at p. 490: “… essentially a practical

question of fact which can best be answered by ordinary common sense rather than by

abstract metaphysical theory”.’

5.3.2 The ‘loss of a chance’ rule

The reference to Gregg v Scott 59 by the Constitutional Court 60 is of interest, as it

refers to a controversial medical malpractice decision of the House of Lords. The

case dealt with the challenging doctrine of so-called ‘loss of a chance’. The facts

of Gregg’s case are regrettably not an uncommon type of occurrence. A patient

56

[1988] 1 All ER 871 HL. It is apparent from the cases in the United Kingdom and Australia

that the question of causation, even on the level of factual causation, at times does involve

questions of legal policy and justice.

57

[1972] 3 All ER 1008, 1 WLR. 1.

58

[1990] 2 SCR 311 at 320; see also Athey v Leonati [1996] 3 SCR 458 ; ResurfIce Corp. v Hanke

2007 SCC 7.

59

[2005] 4 All ER 812 HL.

60

In the minority judgment in Lee v Minister of Correctional Services 2013 (2) SA 144 (CC) at [47].

72


presented to his doctor with an uncomfortable lump under his left arm. The

doctor diagnosed this as benign and reassured the patient to this effect. In truth,

the lump was a malignant tumour for which aggressive treatment was required.

This only commenced approximately 15 months after the initial consultation,

by which time the cancer had spread to the patient’s chest. It was accepted that

the examination by the general practitioner was negligent. However, the question

was whether the negligence had caused the eventual harm. The evidence

was that the plaintiff might have had a 42% chance of still being alive after 10

years if there had been no negligence, while this chance was now reduced to 25%

because of the negligence. Crucially, at no point did the plaintiff enjoy a more

than 50% chance of survival beyond 10 years. In the end, the House of Lords, by

a majority of three to two, rejected the claim in order to protect legal principles. 61

5.3.3 Conclusion

The Constitutional Court’s failure to deal with the issue of factual causation in

Lee v Minister of Correctional Services 62 has been criticised. 63 There is an urgent

need for judicial guidance on issues such as this. However, the causation issues

raised in medical malpractice cases are extraordinarily complex. Lord Nicholls in

Gregg v Scott 64 described the ‘loss of a chance’ issue, for instance, as one ‘which

has divided courts and commentators throughout the common law world’; in the

same case, Lord Hope of Craighead held: ‘This is an anxious and difficult case.

It is only after many months of deliberation that it has become clear that the

majority view is that the appeal must be dismissed’.

In dealing with these challenging issues, our legal system must strike a balance

between a proactive development of the law on the one hand, and a prudent

preference for a proper ventilation of the issues, on the other. The role of the

legislature as the major engine for law reform must also be borne in mind, 65 and

61

See generally in respect of the ‘loss of a chance doctrine’ in South African law: Carstens and

Pearmain, Foundational Principles of South African Medical Law (2007 LexisNexis South Africa)

at 833 ff and the detailed and thoughtful analysis by Van den Heever The Application of the

Doctrine of the Loss of a Chance in Medical Law (Pretoria University Law Press 2007). Hotson v

East Berkshire Health Authority [1987] 2 All ER 909 ; Chester v Afshar [2004] 3 WLR 927 .

62

2013 (2) SA 144 (CC).

63

L T C Harms ‘The puisne judge, chaos theory and the common law’ 2014 SALJ 3.

64

[2005] 4 All ER 812 HL.

65

In Carmichele v Minister of Safety & Security (Centre for Applied Legal Studies Intervening) 2001

(4) SA 938 (CC) at[36] the Court held: ‘In exercising their powers to develop the common

law, Judges should be mindful of the fact that the major engine for law reform should be the

Legislature and not the Judiciary. In this regard it is worth repeating the dictum of Iacobucci J

in E R v Salituro [1991] 3 SCR 654 , which was cited by Kentridge AJ in Du Plessis v De Klerk 1996

(3) SA 850 (CC) at [61]: “Judges can and should adapt the common law to reflect the changing

social, moral and economic fabric of the country. Judges should not be quick to perpetuate

rules whose social foundation has long since disappeared. Nonetheless there are significant

constraints on the power of the Judiciary to change the law. . . . In a constitutional democracy

such as ours it is the Legislature and not the courts which has the major responsibility for law

reform … The Judiciary should confine itself to those incremental changes which are necessary

to keep the common law in step with the dynamic and evolving fabric of our society.” ’

Causation 73

it may well be that the somewhat radical departure from the clearly established

common law principles which the English courts were, on occasion, prepared to

take in relation to factual causation should be left for legislative consideration.

5.4 Legal causation (remoteness of damage)

There is no serious dispute as to the need for a limitation of liability where factual

causation is established. Fleming, The Law of Torts, 66 sums up this second causal

enquiry as follows: 67

‘The second problem involves the question whether, or to what extent, the defendant

should have to answer for the consequences which his conduct has actually helped to

produce. As a matter of practical politics, some limitation must be placed upon legal

responsibility, because the consequences of an act theoretically stretch into infinity.

There must be a reasonable connection between the harm threatened and the harm

done. This inquiry, unlike the first [into factual causation], presents a much larger area

of choice in which legal policy and accepted value judgments must be the final arbiter

of what balance to strike between the claim to full reparation for the loss suffered by

an innocent victim of another’s culpable conduct and the excessive burden that would

be imposed on human activity if a wrongdoer were held to answer for all the consequences

of his default.

To understand its practical implementation by the courts, it is helpful to accept that

the ‘test of legal causation’ is, in a sense, not a test of causation at all. It is in reality

a decision about the limitation of liability. It is “a policy-based mechanism for eliminating

from the causal net those factual consequences for which it would be unreasonable

or undesirable to impose liability”.’

The implementation of this test is frequently of decisive importance in medical

cases. By virtue of the nature of the ethical issues often raised in this area of

the law, which arise out of the combination of rapid scientific and technological

advances, the intricacies of the human body and the inherently personal nature

of the subject matter, medical cases regularly raise new questions of policy to be

dealt with by the courts.

Radically differing views, however, exist as to the manner of limiting the

defendant’s liability for the factual consequences of his or her conduct. 68 Two

66

7 ed at 173.

67

Quoted with approval in S v Mokgethi 1990 (1) SA 32 (A).

68

In respect of limiting the defendant’s liability once factual causation is established, there are

two main schools of thought amongst academic writers and in the case law. One school, the

‘relative view’ (as expounded by Boberg The Law of Delict vol 1 Aquilian Liability 2 imp (Juta

1984) at 381–382 proposes that one should ‘… see both wrongfulness and culpability, not

in abstracto, but as relative to the actual consequences in issue. The question is not whether

the defendant’s conduct was wrongful and culpable, but whether the harm for which the

plaintiff sues was caused wrongfully and culpably by the defendant. Wrongfulness is determined

by applying the criterion of objective reasonableness ex post facto to the actual harm

and the manner of its occurrence; culpability is satisfied only where the defendant intended

or ought reasonably to have foreseen and guarded against harm of the kind that actually

occurred. Having thus accorded the requirements of wrongfulness and fault an active role

in the limitation of liability, those who adopt this approach have no need to postulate a

further requirement that the plaintiff’s damage be not ‘too remote’. Their finding that the

74


main approaches to limiting a defendant’s liability for the factual consequences

of his or her conduct have been advocated: the ‘relative approach’, in terms of

which wrongfulness was determined by applying the criterion of objective reasonableness

ex post facto to the actual harm — the manner of its causation and culpability

was satisfied only where the defendant in the particular circumstances

intended or reasonably ought to have foreseen and guarded against harm of the

kind that actually occurred (thereby according the requirements of wrongfulness

and fault an active role in the limitation of liability); and the ‘legal causation’ test,

in terms of which limitation is achieved by postulating a further requirement for

liability, namely that the plaintiff’s damage should not have been ‘too remote’. 69

The Appellate Division has now approved a composite test, which enables

a court to weigh numerous factors — including the traditional ‘tests’ — in the

balance, in order to determine whether there was a sufficiently close connection

between the defendant’s conduct and the unlawful consequence. In S v Mokgethi, 70

the approach by the courts to legal causation was set out in some detail, which

defendant acted wrongfully and culpably in causing the harm actually complained of inherently

also confines his liability within acceptable limits. And the policy considerations that

must ultimately determine what limits of liability are acceptable receive due judicial recognition

when the discretionary ‘objective reasonableness’ test of wrongfulness and the flexible

‘foreseeable kind of harm’ test of negligence are applied.’ The other view ‘… is that limitation

is best achieved by postulating a further requirement for liability, namely that the

plaintiff’s damage must not be ‘too remote’.’ Also called ‘legal causation’, remoteness may

be determined in various ways. Some favour the ‘direct consequences’ test, some the ‘foreseeability’

test, some the ‘adequate cause’ test and some a composite solution. Common to

all, however, is the premise that culpability is an ‘abstract’ attribute of conduct unrelated to

its actual consequences, and so has no function in limiting liability for those consequences,

which is the province of ‘legal causation’. The traditionalists therefore approach the issue of

remoteness already armed with a wrongful and negligent act that has in fact caused harm,

and proceed to enquire whether the causal connection is sufficient — according to the test

that each favours — to found legal liability.’ Boberg loc cit at 381. The ‘direct consequences’

test provides that the defendant is liable for all consequences which flow directly from the

conduct in question. A consequence flows directly from conduct where there is no new cause

(novus actus interveniens) between the conduct and the harm. An important factor in assessing

whether a new cause has occurred is whether the intervening conduct or event is considered

abnormal in the light of human experience. The adequate cause test is very similar to the

direct consequences test. ‘ (Neethling et al Law of Delict 6 ed (LexisNexis 2010) at 195–196)…

A consequence which has in fact been caused by the wrongdoer, is imputed to him if the consequence

is ‘adequately’ connected to the conduct. The connection is termed ‘adequate’ if,

according to human experience, in the normal course of events, the act has the tendency to

bring about that type of consequence (Neethling et al at 193–194); Standard Chartered Bank of

Canada v Nedperm Bank Limited 1994 (4) SA 747 (A) at 765A: In applying the flexible approach

to legal causation, an important factor is the reasonable foreseeability of the damage which

results. It is sufficient if the general nature of the harm suffered or the general manner of

the harm occurring, was reasonably foreseeable. Mafesa v Parity Versekeringsmaatskappy Bpk

(In likwidasie) 1968 (2) SA 603 (O): The court based its decision on the fact that the plaintiff’s

negligence was not reasonably foreseeable.

69

See also Mukheiber v Raath 1999 (3) SA 1065 (SCA) at 1078A–H.

70

1990 (1) SA 32 (A). In International Shipping Company (Pty) Ltd v Bentley 1990 (1) SA 680 (A), the

Court confirmed the flexible approach to legal causation set out in S v Mokgethi 1990 (1) SA 32

(A), based on policy considerations such as fairness and justice in order to determine whether

a remote consequence should be attributed to the wrongdoer.

Causation 75

was subsequently confirmed in a number of private law decisions. 71 The facts of

Mokgethi were that the deceased was a bank teller. He was shot during a robbery,

but only died some six months later. As a result of being shot, the deceased had

become a paraplegic. His condition initially improved until he resumed work

at the bank. He was later readmitted to hospital suffering from septicaemia. He

eventually died from the septicaemia, which had been contracted as a result of

serious pressure ulcers because he had failed to sufficiently shift his position in

a wheelchair as he had been instructed to do by his medical practitioners. The

Court accepted that there had been factual causation. The case therefore turned

on the question of legal causation. The court held that none of the suggested tests

of legal causation would be satisfactory in all cases. The court quoted from Blaikie

and Others v The British Transport Commission: 72

‘The law has always had to come to some kind of compromise with the doctrine of

causation. The problem is a practical rather than an intellectual one. It is easy and

usual to bedevil it with subtleties, but the attitude of the law is that expediency and

good sense dictate that for practical purposes a line has to be drawn somewhere, and

that, in drawing it, the court is to be guided by the practical experience of the reasonable

man, rather than by the theoretical speculations of the philosopher’.

Van Heerden JA referred to the various criteria stated in judicial decisions and legal

literature for the determination of legal causation, such as the absence of a novus

actus interveniens, proximate cause, direct cause, foreseeability and sufficient causation

(‘adekwate veroorsaking’). The Court held that a ‘flexible approach’ should be

adopted. It stated that there are a wide variety of circumstances in which a victim

may neglect to obtain medical assistance and so aggravate his or her condition, and

possibly lead to such person’s death. The ultimate question, however, is whether

there is a sufficiently close connection between the wrongdoer’s conduct and the

consequences. This is an elastic measure and is essentially a question of fact. 73

Mukheiber v Raath and Another 74 is a further example of a case which turned on

the issue of legal causation. The facts of the case were that the plaintiffs, a husband

and wife, had relied on a misrepresentation by the defendant, a gynaecologist, that

he had sterilised the wife. The plaintiffs had therefore desisted from contraception,

as a result of which a child was conceived and born. The plaintiffs claimed compensation

from the defendant under two heads of pure economic loss: the costs of

71

Including the medical cases of Clarke v Hurst NO 1992 (4) SA 630 (D); Clinton-Parker v

Administrator, Transvaal; Dawkins v Administrator, Transvaal 1996 (2) SA 37 (W); Gibson v

Berkowitz 1996 (4) SA 1029 (W) and Mukheiber v Raath and Another 1999 (3) SA 1065 (SCA),

which all dealt with medical malpractice issues and are discussed below.

72

1961 SC 44 at 49.

73

The court then set out the following criteria in criminal actions which may be of assistance in

delictual actions: the causal connection will be broken where (1) the neglect of the victim to

obtain medical assistance or the like was the immediate cause of the death, (2) the wounding

was not in itself life-threatening, or it was no longer life-threatening and (3) the neglect to

obtain medical assistance was relatively unreasonable, taking into account the characteristics,

convictions and the like of the victim (S v Mokgethi 1990 (1) SA 32 (A) at 46–47).

74

1999 (3) SA 1065 (SCA).

76


confinement of the wife and the maintenance of the child until it became self-supporting.

As far as factual causation is concerned, the court applied the ‘but for’

test. 75 The court considered the two approaches to the issue. The court pointed out

that our courts have in the past followed both the ‘relative’ and the ‘legal causation’

approach. 76 Although the relative view was most commonly followed, the

‘legal causation’ approach had also been followed in a number of cases. 77 The court

pointed out that in the “legal causation” cases public policy plays a role, even a decisive

role, in limiting liability. On the other hand, in the relative approach, public

policy plays the very same role in establishing which consequences of an act are

to be regarded as unlawful, thus creating and at the same time limiting liability.

Applying S v Mokgethi, 78 the court concluded that the two approaches set out above

differ in methodology and approach, but not in substance. 79 If properly applied,

held the Court, they would generally give the same legal result in each case.

In Clinton-Parker v Administrator, Transvaal 80 the plaintiffs claimed delictual,

alternatively contractual damages from the defendants arising out of the discovery,

nearly two years later, that their babies had been swapped at birth by the staff of

the hospital at which the babies had been born. The damages claimed consisted

of treatment for the severe psychological damage that they suffered, the cost of

travelling between the respective towns of residence in order to visit their natural

children and general damages. Fault and factual causation were not in dispute, as

the parties were in agreement that the children had been negligently swapped. The

defendant disputed that liability attached to it because the element of legal causation

was lacking. It contended that: firstly, serious harm of the kind claimed had

not been foreseeable — all that would have been foreseeable would have been some

psychological disturbance; secondly, the plaintiffs’ decision to return the children

given to them at birth was a novus actus interveniens which broke the chain of legal

causation; and thirdly, that as a matter of policy, bearing in mind the possibility of

limitless liability, the award should not be granted. The Court held that it is settled

law that the general principles of delict apply to cases where nervous shock or psychiatric

damage were the consequence of a negligent act. The Court applied the

flexible test of legal causation, including the test of reasonable foreseeability, and

held that the consequence was reasonably foreseeable and that a decision in favour

of the plaintiffs would not be against public policy. 81

75

Minister of Police v Skosana 1977 (1) SA 31 (A) at 34F–35G.

76

Mukheiber v Raath and Another 1999 (3) SA 1065 (SCA) at 1078–1079.

77

The Court referred to Minister of Police v Skosana 1977 (1) SA 31 (A) (supra at 34) (Corbett

JA, majority judgment); International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A) at

702 et seq (Corbett CJ); Smit v Abrahams 1994 (4) SA 1 (A) at 14A et seq (Botha JA); Standard

Chartered Bank of Canada v Nedperm Bank Ltd 1994 (4) SA 747 (A) at 764I et seq (Corbett CJ);

and Groenewald v Groenewald 1998 (2) SA 1106 (A) at 1113C–J in respect of intentional acts.

78

1990 (1) SA 32 (A).

79

At [40].

80

1996 (2) SA 37 (W).

81

The Court regarded the crucial issue as being whether, in all the circumstances of the specific

case, the consequence was reasonably foreseeable. The Court accepted that where the

Causation 77

In Clarke v Hurst NO 82 the applicant’s husband (‘the patient’) had suffered a

cardiac arrest in 1988 and had since then been in a persistent and irreversible

vegetative state and was fed artificially by means of a naso-gastric tube. The

applicant applied to be appointed as curatrix personae in respect of the patient,

with powers in that capacity to authorise the discontinuance of any treatment to

which the patient was subjected, specifically the discontinuance of any naso-gastric

or other non-natural feeding regime, and to act in this manner notwithstanding

that the implementation of such decision might hasten the patient’s

death. The Court applied S v Mokgethi en Andere 83 and held that, even assuming

that uncoupling the ventilator would accelerate the moment of death and therefore

in a sense cause it, it was however clear that a factual causal connection was

not enough to entail legal liability. The Court held that matters of policy are relevant

to the enquiry and that the Court should guard against allowing liability to

exceed the bounds of reasonableness, fairness and justice. So viewed, it appeared

to the Court that the steps envisaged in removing the ventilator would not in law

be the cause of the patient’s death.

5.5 Thin skull cases

Thin skull cases arise where the plaintiff, because of one or other physical, psychological,

or financial weakness, suffers more serious injury or loss as a result of

the wrongdoer’s conduct, than would have been the case had the plaintiff not

suffered from such weakness. This is expressed as ‘the wrongdoer must take the

victim as he finds him.’ 84 Most jurists agree that the wrongdoer should be liable

for the harm which may be ascribed to the existence of the weakness concerned.

The flexible approach to legal causation applies to thin skull cases. 85 The basic

chances of consequences materialising are negligible or remote the reasonable man would

not be expected to foresee them. However, on the facts, the court found that the number

of single young mothers in which a psychiatric illness could be expected is not negligible (a

20–30% likelihood was established). In these circumstances the court held that it could not

be said that it was not reasonably foreseeable that the harm suffered would ensue. Defendant’s

counsel contended that the decision to retain the children can properly be described as an

actus novus interveniens. However, the dilemma the plaintiffs found themselves in was not of

their own doing. It therefore flowed from the negligence of the defendant’s servants, and the

court held that the defendant was not entitled to rely on the decision to retain the children

as an actus novus interveniens. The court also found that it was highly unlikely that a decision

in favour of the plaintiffs would cause a flood of litigation.

82

1992 (4) SA 630 (D).

83

1990 (1) SA 32 (A).

84

Hay v Bourhill and Young 1943 AC 92 109–110.

85

This is illustrated by the judgment of Botha AJ in Smit v Abrahams 1994 (4) SA 1 (A). This was

a ‘financial thin skull’ case. In Smit v Abrahams, the vehicle used by the plaintiff in his hawker’s

business was irreparably damaged. The plaintiff could not afford to repair the vehicle.

He therefore claimed compensation for the rental of a replacement vehicle. The defendant

contended that this claim was not recoverable because the damage was caused by the plaintiff’s

own financially straitened circumstances. The flexible approach was applied, with the

court finding that, although reasonable foreseeability can be used as a subsidiary testing

the application of the flexible approach, it can never serve as the decisive test and thereby

override the flexible approach and allowed the claim. The learned judge held that thin skull

78


question is therefore not whether the damage was a direct consequence or reasonably

foreseeable but whether, in the light all the circumstances of the case,

the damage should reasonably be imputed to the defendant.

In Gibson v Berkowitz 86 the plaintiff, a 28-year-old woman, sued the first defendant

(a gynaecologist and obstetrician) and the second defendant (a hospital) for pain,

suffering and loss resulting from a botched cauterisation procedure performed by

the first defendant in September 1992 in which undiluted instead of diluted acid

was used to swab pre-cancerous cells in her vagina, resulting in serious burns to the

genital area, the small of the back, and the buttocks. Plaintiff suffered severe pain

and discomfort for months afterwards. She required round-the-clock help with

the changing of dressings, ablutions, and bathing. She was, for a time, sexually

dysfunctional. Reconstructive surgery was performed, resulting in further pain

and discomfort. She underwent a personality change, from being enterprising,

dynamic and sociable to being withdrawn and depressed. She lost interest in her

appearance and began overeating. Although she eventually returned to work, it

was to a position inferior to the one she had had before. By late 1995 she had developed

a major depressive disorder, coupled with anxiety. She was no longer able to

work. It was, however, common cause that this condition was curable within about

18 months, which resulted in the limitation of plaintiff’s claims for future loss of

earnings and future medical expenditure.

The plaintiff contended that the defendants were liable for the costs associated

with her depressed condition. The Court pointed out 87 that it was trite

law that psychological sequelae could form the subject of a damages claim, reiterated

the essential principles governing the question of causation (both legal

and factual) 88 and, after analysing the evidence, the Court found that plaintiff’s

condition was justifiably linked to the first defendant’s negligence: the depressive

disorder was not harm of an altogether different kind from that normally

expected after an injury of the kind suffered by her. 89 In essence her vulnerability

stemmed from the weakening effect which pre-existing personality traits had on

her ability to withstand trauma. In the emotional and psychological sense, hers

was a typical ‘thin skull’ case. The Court held, further, that in cases where psychological

sequelae follow physical injury there was less likelihood of limitless

liability and therefore greater scope to include liability for psychological sequelae

which were further removed from the original negligent conduct. 90

case was ‘just another fact to be considered, with all the other facts of each particular case,

when applying the ‘dominant investor criterion’ according to which the imputability of the

particular damage to the defendant is be determined’ (at 15F).

86

1996 (4) SA 1029 (W).

87

At 1038C/D–F/G.

88

At 1039F–1041D.

89

See, also Clinton-Parker and Dawkins v Administrator, Transvaal 1996 (2) SA 37 (W).

90

At 1049B–C.

6

Fault

INTRODUCTION 1

6.1 Definition of fault

The element of fault is an essential general requirement for delictual liability.

2 Underlying the requirement of fault is the notion that it is not enough for

unlawful conduct to cause harm — a person should only be held legally accountable

for his or her conduct if it was, in some sense, blameworthy. 3 For legal liability

to result, the law therefore also requires that the wrongdoer either intended

to cause the harm, or that his or her conduct was negligent. The fault element

has been described as the legal ‘imputability’ of the actor’s conduct to him, i e

whether the law should hold the actor accountable for his conduct, 4 or as the

legal ‘blameworthiness’ of a person’s state of mind or conduct.

6.2 The concept of fault

There are a number of challenging jurisprudential questions as to the true nature

of fault, and predictably divergent views. 5 These differences seldom affect litiga-

1

See, generally: Collins v Administrator, Cape 1995 (4) SA 73 (C); Pringle v Administrator, Transvaal

1990 (2) SA 379 (W); Kruger v Coetzee 1966 (2) SA 428 (A); Jansen van Vuuren and Another NNO

1993 (4) SA 842 (A); C v Minister of Correctional Services 1996 (4) SA 292 (T); S v Hartmann 1975

(3) SA 532 (C); Esterhuizen v Administrator Transvaal 1957 (3) SA 710 (T); Van Wyk v Lewis 1924

AD 438; Buls v Tsatsarolakis 1976 (2) SA 891 (T); Dale v Hamilton 1924 WLD 184; Michael v

Linksfield Park Clinic 2001 (3) SA 1188 (SCA); S v Mkwetshana 1965 (2) SA 493 (N); Premier of

KZN v Sonny 2011 (3) SA 424 (SCA); Broude v McIntosh 1998 (3) SA 60 (SCA); Prowse v Kaplan

1933 EDL 257; Mitchell v Dixon 1914 AD 519; Coppen v Impey 1916 CPD 309; Buthelezi v Ndaba

2013 (5) SA 437 (SCA) ; Eskom Holdings v Hendricks 2005 (5) SA 503 (SCA); Country Cloud

Trading CC v MEC of Infrastructure Development 2015 (1) SA 1 (CC); Loureiro v Imvula Quality

Protection (Pty) Limited 2014 (3) SA 394 (CC).

2

The fault element is not always a requirement, however: see para 6.5 below regarding strict

(‘no-fault’) liability.

3

See e g Burchell Principles of Delict (Juta 1993) at 10 and 30–32; Neethling et al Law of Delict

6 ed (LexisNexis 2010) at 123–124; Boberg The Law of Delict vol 1 Aquilian Liability 2 imp (Juta

1984) at 268–274. See Neethling et al ibid for a summary of the divergent views on the true

nature of fault (esp at 123 fn 2).

S v Ngubane 1985 (3) SA 677 (A). For the general essential elements of delict, see para 3.6 above.

4

Boberg The Law of Delict vol 1 Aquilian Liability 2 imp (Juta 1984) at 268–274.

5

See Neethling et al ibid for a summary of the divergent views on the true nature of fault (esp

at 123 fn 2). For example, the question arises whether the actor must, in addition to directing

his or her will at causing a particular result, at least foresee the possibility that the conduct is

wrongful. Questions also arise as to whether fault amounts to ‘an unlawful mental condition

79

80


tion, however, and it may generally be accepted that in practice the fault requirement

will be satisfied either by intention or by negligence, depending on the

requirements of the particular cause of action.

6.3 Forms of fault

There are two forms of fault: intention (dolus or animus iniuriandi) 6 and negligence

(culpa). 7 An allegation of either form of fault, appropriate to the cause of action

relied upon, must be pleaded and proved. 8 The two concepts are different: dolus

connotes a volitional state of mind, while culpa connotes a failure to measure up

to the standard of conduct expected by the law. 9 Both intention and negligence

are relevant to medical malpractice claims. Intention is an essential element of

the actio iniuriarum, while fault in the form of either negligence or intention

is required for the Aquilian action, the action for pain and suffering and the

dependants’ action. 10

6.4 Accountability

In order for a person to be legally at fault, he or she must have the necessary

mental capacity to be held accountable. Therefore, before turning to the concepts

of intention and negligence in more detail, the manner of assessing the person’s

mental capacity to be held legally accountable must be briefly discussed. A person

is accountable if he has the necessary mental ability to distinguish between right

and wrong, and if he can act in accordance with such appreciation. If a person

lacks accountability at the time of the conduct in question, then there can be

no fault. A person lacks the necessary mental capacity (and is therefore culpae

incapax) in, inter alia, the following situations which are regularly encountered in

this area of the law:

6.4.1 Youth

A child who has not completed his or her seventh year is always regarded as

lacking capacity (he or she is said to be culpae incapax). There is an irrebuttable

presumption that the child is not accountable. A child over the age of seven

and under the age of fourteen years is presumed to lack accountability until the

contrary is proved. The onus of proof rests on the plaintiff. There is therefore a

rebuttable presumption that the child is not accountable.

(mens rea)’, or ‘serves as the grounds on which a person is blamed for his wrongful conduct’.

See e g Burchell Principles of Delict (Juta 1993) at 10 and 30–32; Neethling et al Law of Delict

6 ed (LexisNexis 2010) at 123–124; Boberg The Law of Delict vol 1 Aquilian Liability 2 imp (Juta

1984) at 268–274.

6

Animus iniuriandi is simply the form of dolus required for the actio iniuriarum (the action for

infringements to rights of personality).

7

Culpa is sometimes used as a synonym for the fault element in its entirety (that is, negligence

and intention); the meaning of culpa in this work is in the narrower sense of ‘negligence’.

8

See ch 3 above for a detailed discussion of the essential elements of the causes of action in

medical malpractice cases.

9

S v Ngubane 1985 (3) SA 677 (A) at 686.

10

See ch 3 above for a discussion of the relevant causes of action.

6.4.2 Mental disease or illness

Fault 81

It should, in similar vein, be noted that a person suffering from a mental disease

or illness may also lack accountability. A person is not accountable if he or she

does not have the necessary mental ability to distinguish between right and

wrong, or if the person does have such ability to distinguish between right and

wrong, but cannot act in accordance with such appreciation. 11

6.5 Exceptions to the fault requirement

Our law does not always require the presence of fault for liability to result. There

are occasions when liability without fault will be found to exist. This is known as

‘no-fault’ or strict liability, but is seldom relevant to medical malpractice cases. 12

INTENTION (DOLUS; ANIMUS INIURIANDI)

6.6 Definition of intention

Intention may be defined as the state of mind in which a person’s will is directed

at producing a particular result. An additional requirement, that the defendant

must know that the conduct in question is unlawful, has been recognised in our

law, but the principles governing this concept are not settled. 13

6.7 The concept of intention

When assessing intention, the law enquires into the defendant’s state of mind.

The test is therefore subjective. 14

6.8 Direction of the will 15

The defendant must direct his or her will to bringing about the harm. This may

take various forms. The wrongdoer’s primary aim and object may be to bring

about the very harm which results (dolus directus); the resulting harm may be a

necessary and foreseen consequence of attaining the wrongdoer’s primary aim

and object (dolus indirectus); or it may merely be a possible and foreseen consequence

of attaining the primary object to which the wrongdoer reconciled

himself or herself (dolus eventualis). 16 Proof of any of these forms suffices to establish

intention. 17 Nor does the law attach specific consequences to any particular

form of intention; it is accordingly generally irrelevant which one is present in

a particular case for purposes of liability. It is therefore apparent how broadly

11

Fradd v Jaquelin (1882) 3 NLR 144.

12

For further discussion of these principles, see esp Neethling et al Law of Delict 6 ed (LexisNexis

2010) ch 11.

13

See, generally, the discussion below at para 6.9 below; Boberg The Law of Delict vol 1 Aquilian

Liability 2 imp (Juta 1984) at 269; Neethling et al Law of Delict 6 ed (LexisNexis 2010) at 126.

14

Burchell Principles of Delict (Juta 1993) at 30.

15

See Burchell op cit 30–32; Neethling et al op cit at 127–128; Boberg op cit at 268–270.

16

S v Ngubane 1985 (3) SA 677 (A) at 687.

17


82


the law defines intention — much more broadly than the notion of intention in

common usage.

6.9 Knowledge of unlawfulness (‘wederregtelikheidsbewussyn’ or

‘coloured intent’) 18

The principle of knowledge of unlawfulness requires that the wrongdoer, in addition

to directing his or her will at a particular result, must also have realised or

foreseen the possibility that the conduct was unlawful; an additional requirement

of subjective knowledge of the unlawfulness of his or her conduct is thus

required. The applicability of this doctrine is controversial, and the law on this

aspect is not settled. Although the doctrine has been accepted as part of our law,

our courts have on occasion questioned both its validity 19 and the extent of its

application. 20 There are indications from the courts that the concept may more

appropriately be dealt with under the rubric of unlawfulness. 21 Of relevance for

our purposes are decisions which have held that intention in the form of animus

iniuriandi does not require knowledge of unlawfulness. 22 This curtailment of the

concept makes it generally inapplicable to medical malpractice claims, where the

requirement of dolus is almost exclusively encountered in the form of animus

iniuriandi as a requirement of the actio iniuriarum.

Lack of knowledge of unlawfulness has therefore been held not to constitute a

defence in respect of, inter alia, invasion of privacy 23 and assault. 24 In C v Minister

of Correctional Services 25 an action was brought under the actio iniuriarum for invasion

of privacy. The plaintiff was a prisoner in the custody of the defendant. A

blood sample was taken from the plaintiff, which was later subjected to a test for

the HIV virus. The Department of Correctional Services had adopted the policy

that informed consent was a prerequisite for testing prisoners, and had specified

which norms were applicable. These included pre- and post-test counselling. The

18

See esp Le Roux v Dey 2010 (4) SA 210 (SCA) at 224–225; C v Minister of Correctional Services

1996 (4) SA 292 (T) at 305; but see also Le Roux v Dey 2011 (3) SA 274 (CC) at 318–319;

Neethling et al Law of Delict 6 ed (LexisNexis 2010) at 128–129.

19

See esp Le Roux v Dey 2010 (4) SA 210 (SCA) at paras [29] and [39] at 220C and 224E. The

Supreme Court of Appeal (per Harms JA) held that the doctrine was introduced by the

Continental Pandectists, who added an element to the concept of dolus, being consciousness

of wrongfulness. The court pointed to the dearth of authority for the concept of consciousness

of wrongfulness as a valid defence in the case of iniuriae. It regarded the concept as being

of dubious ancestry. However, on appeal to the Constitutional Court (Le Roux v Dey 2011 (3)

SA 274 (CC)), it was held that it was not necessary for the Supreme Court of Appeal to have

embarked on the enquiry as to whether our law should still require knowledge of wrongfulness

as part of animus iniuriandi, and nor was it necessary for the Constitutional Court to do

so (at [129] to [137]).

20

C v Minister of Correctional Services 1996 (4) SA 292 (T).

21

Le Roux v Dey 2010 (4) SA 210 (SCA) at [32]; Minister of Finance and Others v Gore NO 2007 (1)

SA 111 (SCA); Ramsay v Minister van Polisie en Andere 1981 (4) SA 802 (A).

22

Le Roux v Dey 2010 (4) SA 210 (SCA), especially at paras [33] and [39].

23

C v Minister of Correctional Services 1996 (4) SA 292 (T) at 306A–F.

24

Bennett v Minister of Police and Another 1980 (3) SA 24 (C).

25

1996 (4) SA 292 (T).

Fault 83

blood sample was taken, and the HIV test administered, in contravention of these

norms. However, the employee of the defendant who took the sample had been

unaware of the norm of informed consent adopted by his employer at the time it

was taken. The Court accepted that the employee, through no fault of his own,

did not know of the norm of informed consent, and had throughout acted completely

bona fide. It was contended on behalf of the defendant that the plaintiff’s

action should therefore fail because there was no knowledge of the unlawfulness

of the conduct in question, and accordingly no intention (in the form of animus

iniuriandi). The Court found that in cases involving an invasion of privacy the

lack of knowledge of unlawfulness on the wrongdoer’s part was irrelevant, and

the employee had therefore had the necessary intention. 26

6.10 Intention and unlawfulness

In certain circumstances, the legal blameworthiness of the defendant’s state

of mind is a factor to be taken into account when assessing unlawfulness. So,

for instance, there are cases where intention, as opposed to mere negligence, is

said to be an essential element of unlawfulness, such as interference in contractual

rights 27 and unlawful competition. 28 However, intentionally causing harm

to others will not always be unlawful and intent does not necessarily indicate

unlawfulness. 29

6.11 Motive and intention

Motive — whether good or bad — must be distinguished from intention. Motive is

the reason for somebody’s conduct and should not be confused with intention. 30

In Minister of Justice v Hofmeyr, 31 Hoexter JA stated:

‘Intent and motive, however, are discrete concepts. As pointed out by Stratford JA

in Gluckman v Schneider: 32 “Motive … is the actuating impulse preceding intention.”

Intention is a reflection of the will rather than desire. The pertinent difference between

the two concepts was stressed in [Whittaker v Roos and Bateman]. 33 At 131 of his judgment

Solomon J stated: ‘It is not necessary in order to find that there was an animus

iniuriandi to prove any ill-will or spite on the part of the defendants towards the plaintiffs

…’

26

The issue has recently been the subject of judgments by both the Supreme Court of Appeal

and the Constitutional Court: See e g Le Roux v Dey 2011 (3) SA 274 (CC) at [129]–[137].

27

Dantex Investment Holdings (Pty) Ltd v Brenner and Others NNO 1989 (1) SA 390 (A); Country

Cloud Trading CC v MEC, Department of Infrastructure Development 2014 (2) SA 214 (SCA) esp at

[24].

28

Geary and Son (Pty) Ltd v Gove 1964 (1) SA 434 (A); Country Cloud Trading CC v MEC, Department

of Infrastructure Development 2014 (2) SA 214 (SCA) esp at [24].

29

Country Cloud Trading CC v MEC, Department of Infrastructure Development 2014 (2) SA 214

(SCA) at [25].

30

Le Roux v Dey 2011 (3) SA 274 (CC) at para 129; Esterhuizen v Administrator Transvaal 1957 (3)

SA 710 (T) at 722 F–H.

31

1993 (3) SA 131 (A) at 154.

32

1936 AD 151.

33

1912 AD 92.

84


The distinction between motive and intention is well demonstrated by the facts

of S v Hartmann. 34 The Court dealt with the legal position in respect of what it

termed ‘mercy killing.’ 35 The accused was a medical practitioner. He was charged

with the murder of his father, aged 87. His father had for many years been suffering

from a carcinoma of the prostate. Secondary cancer had manifested itself

in his ribs. The accused had visited his father and found him bedridden and

suffering great pain. There was no prospect of a cure for the deceased. He was

emaciated, incontinent and on painkilling drugs. Shortly before the death of the

deceased, expert medical evidence described him as being moribund and close

to death. The accused administered a fatal dose of pentothal to the deceased.

Within seconds the deceased died. The Court held that the accused was guilty of

murder. The Court accepted that the accused had performed an unlawful act by

injecting the pentothal into the drip connected to the deceased’s body and that

this act had led directly to the death of the deceased. The Court also accepted

that the accused did not desire to end his father’s life, and that the motive for

his action was a compassionate one, being to relieve his father of the further

endurance of pain and the continuation of his pitiable condition. However, the

accused was prepared, in order to achieve such relief, to do an act which he knew

would terminate his father’s life. This constituted intention and the accused was

convicted of murder. 36 (It should be noted that the Court, in respect of sentence,

regarded the appropriate punishment as one in which full measure was given to

the element of mercy — the Court sentenced the accused to a term of imprisonment

of one year, with the sentence totally suspended. The accused was accordingly

detained until the rising of the Court, whereafter the suspended sentence

became operative. The accused’s motive was therefore relevant to sentencing in

a criminal matter, and will also be relevant to damages in civil claims under the

actio iniuriarum).

A civil matter which illustrates the distinction between motive and intention

is Esterhuizen v Administrator Transvaal. 37 The plaintiff sued the defendants

34

1975 (3) SA 532 (C), is a criminal case. However, since the offence in question was a consequence

crime — that is, in a crime which requires a certain consequence to eventuate (S v

Goosen 1989 (4) SA 1013 (A)) — the principle is relevant to the law of delict. For other cases

on the issue of euthanasia see, generally; Clarke v Hurst 1992 (4) SA 630 (D) (an important

case which establishes the principle in our law that the court will authorise terminating a

patient’s life in an appropriate case, and thereby make the conduct lawful); S v Gordon 1962

(4) SA 727 (N); Ex parte die Minister van Justisie In Re: S v Grotjohn 1970 (2) SA 355 (A); S v De

Bellocq 1975 (3) SA 538 (T); S v Hibbert 1979 (4) SA 717 (D); S v McBride 1979 (4) SA 313 (W); S v

Williams 1986 (4) SA 1188 (A); S v Marengo 1991 (2) SACR 43 (W); S v Smorenburg 1992 (2) SACR

389 (C); S v Nkwanyana 2003 (1) SA 303 (W). A note of caution should be sounded, however.

The decision in Clarke v Hurst supra authorised the withdrawal of life-support by the patient’s

curator personae in advance — it is submitted that this is the appropriate route when such

action is contemplated.

35

More properly classified as ‘active euthanasia.’

36

The fact that the deceased was dying and would have died as little as a few hours later did

not assist the accused (see R v Makali 1950 (1) SA 340 (N) and the element of Causation in

Chapter 5).

37

1957 (3) SA 710 (T).

Fault 85

for subjecting her to radium treatment without her consent, which had caused

her serious injuries. The defendant contended that there was no intention to

injure the patient, as the defendant administered the treatment with the laudable

motive of attempting to cure her. The Court held that intention and motive are

different concepts and the fact that the motive for an assault might be laudable

does not negative the fact that the intention to assault or the assault itself might

nevertheless be unlawful. The defendant had no right to subject the plaintiff to

the particular treatment without her consent. The contention that there was no

‘wrongful intent’ therefore failed. It is therefore evident that a person may act

from a supposedly morally laudable motive, but still have the necessary legal

intent.

6.12 Intention in claims for the invasion of privacy

In South African law, an action for invasion of privacy is available as an infringement

of rights of personality under the actio iniuriarum. In the leading case on

breach of medical confidentiality, Jansen van Vuuren and Another NNO v Kruger, 38

the defendant was the patient’s medical practitioner. As such, he had owed the

patient a duty of confidentiality regarding any knowledge of the patient’s medical

and physical condition. The defendant became aware of the patient’s HIV status.

In breach of his professional duty of confidentiality, the defendant disclosed the

HIV test results to third parties. The plaintiff’s case against the defendant was

based on an injury to the plaintiff’s rights of personality and the patient’s right to

privacy. Because the claim was based on the breach of rights of personality, intention

had to be established on the part of the medical practitioner; negligence was

insufficient. The state of mind of the medical practitioner was therefore decisive.

The Court held that the disclosure had been made intentionally — the defendant

had intended the consequences and had directed his will to the result. The Court

accordingly held that the plaintiff had suffered an invasion of, and had been

injured in, his rights of personality, particularly his right to privacy.

NEGLIGENCE (CULPA)

6.13 Definition

A person is negligent when his or her conduct falls short of the standard which

the law expects of the reasonable person in the particular circumstances of the

case. 39

38

1993 (4) SA 842 (A). The appeal against a judgment delivered in the Witwatersrand Local

Division in which a claim for damages for the breach of the plaintiff’s right to privacy was

dismissed. In the appeal, the appellants were the executors of the estate of the plaintiff, Mr

McGeary, who had died during the course of the trial of an Aids-related disease.

39

Boberg The Law of Delict vol 1 Aquilian Liability 2 imp (Juta 1984) at 269; Burchell Principles of

Delict (Juta 1993) at 31; See also Neethling et al Law of Delict 6 ed (LexisNexis 2010) at 131.

86


6.14 The concept of negligence

The essence of the concept of negligence is that the defendant’s conduct is compared

to an objective standard: that of the ‘reasonable person’. Unlike the enquiry

into intention (dolus), 40 the subjective state of mind of the defendant is irrelevant.

The enquiry is objective in that it is into the defendant’s conduct, and where

the conduct falls short of the requisite standard, the defendant is negligent and

accordingly at fault. 41

6.15 The test for negligence

The classic test for negligence 42 was set out by Holmes JA in Kruger v Coetzee: 43

‘For the purposes of liability culpa arises if:

(a) A diligens paterfamilias 44 in the position of the defendant:

(i) would foresee the reasonable possibility of his conduct injuring another in his

person or property and causing him patrimonial loss; and

(ii) would take reasonable steps to guard against such occurrence; and

(b) the defendant failed to take such steps.’

This dictum has since been quoted with approval in countless decisions and has

been at the heart of the enquiry into negligence for some 50 years. 45 However, the

sequential nature of the test should not obscure the fact that the court is engaged

in assessing the reasonableness of the defendant’s conduct. Ultimately, the court

is obliged to make a value judgment by balancing various competing considerations.

Dividing the enquiry into stages, however useful, is no more than an aid or

guideline to resolving this issue. 46

A number of concepts are contained in this formulation of the test for negligence.

Negligence is at the heart of medical malpractice, and it is crucial to an

understanding of the entire subject to have a firm grasp of these concepts. With

this understanding the theory of negligence can be applied to a wide variety of

situations which arise in practice on a daily basis. Each of the following concepts

is therefore dealt with below:

1. The reasonable person, and the related concept of the reasonable medical

practitioner;

40

See paras 6.6–6.12 above.

41


42

For the application of the test to medical practitioners see para 6.18 below.

43

1966 (2) SA 428 (A) at 430 E.

44

The term diligens paterfamilias simply means ‘the reasonable person’. The latter expression,

being gender neutral, is preferred in this work. However, reference to the diligens paterfamilias

is regularly made in the law reports and is something of a term of art in our law.

45

Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) at 448. In Mukheiber v

Raath 1999 (3) SA 1065 (SCA), the Supreme Court of Appeal recast the Kruger v Coetzee test in

the mould of the concrete theory of negligence. However, this reformulation has not found

favour (see e g Faircape Property Developers (Pty) Ltd v Premier, Western Cape 2003 (6) SA 13

(SCA) at [54]).

46

Sea Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty) Ltd 2000 (1) SA 827 (SCA) at

839–840.

2. Reasonable foreseeability;

3. Reasonable preventability of harm;

4. Negligence judged in the light of surrounding circumstances.

Fault 87

Once these concepts have been dealt with, examples of the application of the

principles of negligence in medical cases will be discussed.

6.16 The concept of the reasonable person 47

Kruger v Coetzee established the concept of the ‘reasonable person’ as exemplar of

the notion of reasonableness in our law. In order to determine whether a person

acted negligently, a comparison is made with the notional ‘reasonable person’.

The defendant is negligent if the reasonable person in the defendant’s position

would have acted differently. In turn, the courts adopt the approach that the reasonable

person would have acted differently if the unlawful causing of harm was

reasonably foreseeable and preventable. 48 The reasonable person is not perfect,

however. Holmes JA in S v Burger 49 held: ‘one does not expect of a diligens paterfamilias

50 any extremes such as Solomonic wisdom, prophetic insight, chameleonic

caution, headlong haste, nervous timidity, or the trained reflexes of a racing

driver. In short, a diligens paterfamilias treads life’s pathway with moderation and

prudent common sense.’ And in Herschel v Mrupe, 51 Van den Heever JA described

the reasonable person as ‘not … a timorous faintheart always in trepidation lest

he or others suffer some injury; on the contrary, he ventures out in the world,

engages in affairs and takes reasonable chances.’

This personification of the concept of reasonableness has not always been

enthusiastically embraced; 52 nonetheless, the ‘reasonable person’ remains a ubiquitous

figure in the law reports and, in medical negligence cases, so does the

‘reasonable medical practitioner.’ 53

47

The reference to the diligens paterfamilias in the test in Kruger v Coetzee is somewhat dated; the

modern incarnation of the model citizen is the ‘reasonable person.’

48


49

1975 (4) SA 877 (A) at 879 D–E.

50

The term diligens paterfamilias simply means ‘the reasonable person’. The latter expression,

being gender neutral, is preferred in this work. However, reference to the diligens paterfamilias

is regularly made in the law reports and is something of a term of art in our law.

51

1954 (3) SA 464 (A) at 490 E.

52

Joubert JA in Weber v Santam Versekeringsmaatskappy Bpk 1983 (1) SA 381 (A) 410–411 was

moved to remark acerbically that it serves no purpose to ascribe various anthropomorphic

characteristics to the diligens paterfamilias, because we are not dealing with a physical person,

but only with the name of an abstract, objective criterion. We are furthermore not concerned

with what the care of a legion of reasonable person types would have been, such as a reasonable

educated person, a reasonable illiterate person, a reasonable skilled labourer, a reasonable

unskilled labourer, a reasonable adult or a reasonable child. There is only one abstract,

objective criterion, and that is the court’s judgment of what is reasonable, because the court

places itself in the position of the diligens paterfamilias. (It is, however, submitted that provided

the underlying concept of the objective criterion against which the conduct is being

measured is understood, then the personification of the reasonable person is not misleading

and is a useful aid to determining negligence).

53

See para 6.18 below.

88


6.17 The negligence of children

The manner in which the courts approach the assessment of the negligence of

children demonstrates the objective assessment of the standard of reasonableness

and serves as context for a discussion of the courts’ approach to the notion of

the reasonable medical practitioner. The courts have stated, somewhat controversially,

that the standard of the reasonable person is always objective, and varies

only in regard to the exigencies arising in any particular circumstances. 54 The

negligence test for children is accordingly not reduced to a ‘reasonable child test.’

The child is assessed against the same standard: that of the reasonable person.

However, should it be found that the particular child has failed to live up to

the standard of the reasonable person, the courts will ameliorate the potential

harshness of this approach by assessing whether the negligent conduct should

be imputed to the child. Once it is established that a child over the age of seven

years, but younger than fourteen years, has conducted itself in such a manner

that the conduct would ordinarily amount to negligence, then it must be determined

whether the child is culpae capax. 55 This entails an enquiry into accountability,

and the court will assess whether the child had the necessary intellect,

maturity, experience and the like to distinguish between right and wrong, and to

act in accordance with such insight. 56 The courts have emphasised that the question

is whether the particular child in the particular situation, and not merely

children in general, has the ability to distinguish between right and wrong, and

to act in accordance with such insight. The determination of accountability must

take full account of the danger of placing ‘an old head on young shoulders.’ 57

54

Jones NO v Santam Bpk 1965 (2) SA 542 (A) at 551; Weber v Santam 1983 (1) SA 381 (A).

55

See para 6.4 above.

56

In deciding whether a particular child is culpae or doli capax in relation to a particular set of

circumstances, the following approach was endorsed in Jones v Santam 1965 (2) SA 542 (A): ‘it

would be as unsound to say as a proposition in law that this child was not capable of negligence

as to say he was. Negligence implies a capacity to apprehend intelligently the duty, obligation or

caution neglected and that depends to a large degree on the nature of that which is neglected, as

well as on the intelligence and maturity of the person said to have neglected it. The capacity to

neglect is a question of fact in the particular case, as much as intelligence itself, which is always

a question of fact’ (per Lord Justice Clerk Moncrieff in Campbell v Ord and Maddison (1873) IR 149,

quoted with approval by Williamson JA in Jones at 553).

57

Weber v Santam 1983 (1) SA 381 (A) at 400. Where the issue is whether or not a child is culpae

capax, care should be taken not to place ‘an old head on young shoulders’. The court cautioned

that it had thus been too readily accepted, purely on the ground of a child’s training,

that he had attained a sufficient degree of development and maturity to control his irrational

or impulsive acts. If the child’s acts and omissions are to be measured against the standard of

the adult, it must be asked whether he is sufficiently mature in regard to the situation at issue

to comply with that standard. The question of the accountability of an infantia maior must

be approached subjectively by determining whether the child’s emotional and intellectual

capacity had, at the relevant stage, developed to such a degree that he had sufficient discretion

to distinguish between permissible and impermissible conduct and to act accordingly.

Where the accountability of the child has already been established, and negligence must be

established, only one abstract, objective standard applies, namely the Court’s judgment as to

what is reasonable, because the Court places itself in the position of the diligens paterfamilias.

Fault 89

Eskom Holdings v Hendricks 58 serves as an example. This case dealt with the

alleged contributory negligence of a child of 11 years of age. The court held that

in each case it had to be determined whether the child in question had developed

the emotional and intellectual maturity to appreciate the particular danger to be

avoided and, if so, to act accordingly. The boy’s behaviour in succumbing to an

impulse to touch an insulator on an electricity pylon was held to be typical of

the impulsive behaviour in which children of tender age sometimes engage. The

very conduct in question was indicative of an inability on the part of the boy to

act in accordance with any appreciation he may have had of the danger involved.

6.18 The concept of the reasonable medical practitioner

Against this somewhat rigid application of the objective assessment of negligence,

the position of the wrongdoer who possesses proficiency or expertise in

respect of the allegedly negligent conduct stands as something of an exception.

Where conduct calls for particular expertise, the test for negligence in respect of

the exercise of the expert activity is the test of the so-called ‘reasonable expert.’

The reasonable expert is identical to the reasonable person in all respects, except

that a reasonable measure of the relevant expertise is added. The test is not the

test of the reasonable person because that person does not have the special skill

or expertise being assessed. In the case of medical practitioners, the test for negligence

in respect of the exercise of the expert activity is therefore the test of

the reasonable medical practitioner in the branch of the profession to which the

practitioner belongs. 59 The standard which is required is not that of the exceptionally

skilled, gifted or diligent medical practitioner, but rather the standard

of the ordinary practitioner in the branch of the profession to which he or she

belongs, who is acting reasonably. As discussed below, the standard of the reasonable

medical practitioner is assessed in the light of the particular surrounding

circumstances of the case. 60

Innes CJ in Van Wyk v Lewis 61 articulated the test as follows: ‘a medical practitioner

is not expected to bring to bear upon the case entrusted to him the highest

possible degree of professional skill, but he is bound to employ reasonable skill

and care. And in deciding what is reasonable the Court will have regard to the

general level of skill and diligence possessed and exercised at the time by the

members of the branch of the profession to which the practitioner belongs’. 62

58

2005 (5) SA 503 (SCA).

59

Van Wyk v Lewis 1924 AD 438 at 444; Mitchel v Dixon 1914 AD 519 at 526.

60

See the discussion at para 6.21 ‘Negligence judged in the light of surrounding circum stances’

below.

61

1924 AD 438. The facts of the case are discussed later in this paragraph.

62

In Mitchell v Dixon 1914 AD 519 the Court held that ‘A medical practitioner is not expected to

bring to bear upon the case entrusted to him the highest possible degree of professional skill,

but he is bound to employ reasonable skill and care; and he is liable for the consequences if

he does not. The burden of proving that the injury of which he complains, was caused by the

defendant’s negligence, rested throughout upon the plaintiff.’ (at 525).

90


The same expertise cannot therefore be expected from a general practitioner

as from a specialist. 63 However, the converse is also true: the specialist is required

to employ a higher degree of care and skill concerning matters within his or her

field. 64 As discussed above, the ‘reasonable person’ is not perfect. 65 In considering

the notion of the reasonable medical practitioner, the courts apply this principle

by bearing in mind that a doctor is a human being and not a machine, and that

no human being is infallible. 66

The application of these principles is illustrated in the case of Buls v

Tsatsarolakis. 67 The plaintiff was injured on duty, experienced severe pain and

went to a hospital. A general medical practitioner employed as a casualty officer

at the hospital found no evidence of a fracture. The plaintiff was given tablets and

told to return after a week. His hand was strapped with an elastoplast bandage.

The plaintiff returned a few days later still suffering pain. The radiologist had

reported that no fracture was seen on the X-rays. The plaintiff was given ointment

and more tablets and told to return if he continued to experience pain. The

plaintiff did not return to the hospital but consulted an orthopaedic surgeon

who suspected a fracture of the scaphoid bone of the right wrist. X-rays revealed

a fracture. The plaintiff sued for damages, alleging that the casualty officer had

been negligent. He claimed damages for pain and suffering, loss of earnings and

fees paid. The medical evidence disclosed, however, that such a fracture took

up to three weeks to show up on X-rays, that it was a very difficult fracture to

diagnose and that the casualty officer had been reassured clinically at the second

interview by the fact that the swelling had substantially disappeared and the

pain had been reduced. The Court held that the question was not how a specialist

orthopaedic surgeon would have acted in the treatment of the plaintiff but how

the average general practitioner carrying on his duties as a casualty officer in a

public hospital would have acted. It found that the casualty officer had acted as a

reasonable general medical practitioner would have done in the circumstances of

the case and that, consequently, negligence had not been proved.

The application of the assessment of the negligence of the practitioner’s

conduct by the courts is illustrated by reference to the following two cases. Both

involved the question of whether a medical practitioner can reasonably rely on

another person to perform their professional duties. The important principle

demonstrated in these two cases is that ultimately the courts assess the practitioner’s

conduct against what the reasonable practitioner would have done in the

circumstances, and although guidelines can be given, no hard and fast rule can

be formulated.

63

Buls v Tsatsarolakis 1976 (2) SA 891 (T) at 894; Blyth v Van den Heever 1980 (1) SA 191 (A).

64

Van Wyk v Lewis 1924 AD 438 at 444; Durr v ABSA Bank Ltd 1997 (3) SA 448 (SCA); Michael v

Linksfield Park Clinic (Pty) Ltd 2001 (3) SA 1188 (SCA).

65

Paragraph 6.16 above.

66

Van Wyk v Lewis 1924 AD 438 at 470; Mitchell v Dixon 1914 AD 519 at 526.

67

1976 (2) SA 891 (T).

Fault 91

In Dale v Hamilton 68 the plaintiff claimed damages from the defendant, a

general medical practitioner, after the plaintiff had suffered an x-ray burn which

was alleged to be due to the unskillfulness and neglect of the defendant in undertaking

to do the skilled work of a radiographer in conducting an x-ray examination.

69 The defendant in dealing with new x-ray apparatus relied on an expert

who was employed to install the apparatus to ensure that the distance of the

machine from the patient was safe before commencing treatment. The issue was

what the appropriate limit of the responsibility of a medical practitioner undertaking

such type of work was, and whether the practitioner could delegate the

responsibility of checking the distance to some other person. Could the practitioner

take the proper setting of the machine by such person on trust, or must

he personally satisfy himself as to the setting? The Court held that the medical

practitioner was responsible for arranging his own setting, stating ‘I think the

different factors which go to constitute the setting are things within the department,

so to speak, of the radiographer himself, and that he must satisfy himself

as to those factors … It seems to me that the responsibility for having the tube in

the right position in relation to the exposure which he intended to employ is one

which the defendant cannot shift to anybody else’. The Court accordingly found

that the defendant had been negligent.

In the classic case of Van Wyk v Lewis, 70 a surgeon was sued because a swab

used during an urgent and difficult abdominal operation was overlooked and

remained in the plaintiff’s body. In accordance with the usual practice at the hospital,

the surgeon had relied upon a qualified nurse on the hospital staff who had

acted as a theatre sister during the operation to count and check the swabs used.

At the conclusion of the operation, the surgeon had made as careful a search for

swabs as the critical condition of the patient permitted and both the surgeon and

the sister believed that all the swabs were accounted for before the wound was

sewn up. The Court held that although the surgeon in performing the operation

was bound to exercise all reasonable care and skill expected of a surgeon in the

circumstances, because it was a reasonable and proper practice in all the circumstances

of the case to leave the duty of checking the swabs to the theatre sister,

the surgeon in following that practice had not been negligent.

The different outcomes in Dale v Hamilton and Van Wyk v Lewis reflect an

important point in respect of how the courts deal with negligence. Superficially,

the two cases appear to be inconsistent: in Dale v Hamilton, the Court held that

it was negligent for the practitioner to delegate his duty; in Van Wyk v Lewis, the

68

1924 WLD 184.

69

This case is also an example of the application of the principle of imperitia culpae adnumeratur,

in terms of which the medical practitioner who engages in an undertaking that requires

certain training, knowledge, experience, skill, competence or diligence, knowing that he

or she lacks such qualities, will be bound by her undertaking and judged according to the

standards of the undertaking. (This principle is discussed at para 6.26 below.) In this case, the

defendant was judged according to the standard of the reasonable radiographer.

70

1924 AD 438.

92


Court held that it was not negligent to do so. However, when one appreciates

that the court is conducting an examination of whether the conduct in question

was reasonable in all the circumstances of the case, the difference in outcome

can be understood. In Dale v Hamilton it was unreasonable, in the circumstances,

to simply accept that the x-ray machine was properly positioned; in Van Wyk v

Lewis, on the other hand, it was reasonable in the circumstances of the case to

rely on the theatre sister having properly checked the swabs. Much will turn on

the specific facts of the case in deciding the question of reasonableness.

The role of guidelines and usual practices adopted by an institution or which

apply to the circumstances of the case are an important consideration. In themselves,

they will not bind the court, which will ultimately seek to satisfy itself of

the reasonableness of the practitioner’s conduct. However, whether the practitioner

followed established guidelines or usual practices is an important factor

which the courts will have regard to in assessing the reasonableness of such

conduct. Following guidelines or usual practices will be a strong indication of

reasonable conduct, and should the policy or practice itself be reasonable, the

practitioner’s conduct will almost certainly not be negligent. 71 That is not to say,

however, that the courts will slavishly adhere to guidelines or usual practices;

as is apparent, this is simply one factor which the courts will consider when

assessing negligence.

6.18.1 The role of the medical profession in assessing negligence 72

The evidence of qualified surgeons or physicians is regarded by the courts as being

of the greatest assistance in establishing the level of the reasonable medical practitioner.

73 The question of the medical profession adjudicating itself has however

received widespread discussion internationally. 74 The South African approach

71

See further, in this regard, S v Soobramoney 1998 (1) SA 765 (CC) as to the reasonableness of

hospital guidelines; Jansen van Vuuren v Kruger 1993 (4) SA 842 (A) at 850 as to an application

of the then South African Medical and Dental Council’s guidelines (the decision is still relevant

to the question of the application of guidelines and policies generally); and Michael v

Linksfield Park Clinic 2001 (3) SA 1188 (SCA) as to the courts’ approach to determining the

issue of the reasonableness or negligence of a defendant’s conduct in the light of various, and

often conflicting, expert opinions, and as to the standard of the reasonable medical practitioner.

72

Sue Carr QC & Helen Evans ‘The Removal of Immunity for Expert Witnesses: The decision

in Jones v Kaney and some unanswered questions’ Journal of Professional Negligence, PN 2011 3

27(3) 128–137. In the United Kingdom, the ever dwindling immunity from suit from negligence

employed by expert witnesses was finally brought to an end by the Supreme Court in

Jones v Kaney [2011] 2 WLR 823 . The first instance judge (Blake J) described as an ‘unhappy

picture’ the manner in the joint statement had come into existence. In this respect the case

echoes the sentiments in Ndlovu v Road Accident Fund 2014 (1) SA 415 (GSJ). In Ndlovu, it

appeared that the expert had not read the driver’s expert’s report prior to the joint meeting,

had agreed to the joint minute even though she felt ‘pressurised to do so’ and asserted that

the joint minute did not reflect her true views.

73

See generally: Van Wyk v Lewis 1924 AD 438 at 444; Durr v ABSA Bank Ltd 1997 (3) SA 448

(SCA); Michael v Linksfield Park Clinic 2001 (3) SA 1188 (SCA).

74

There are differing views on the correct approach to be taken to assessing the appropriate

standard in the light of what the medical profession determines is acceptable. In England,

Fault 93

to such evidence was set out in Michael v Linksfield Park Clinic. 75 It is ultimately

for the court to decide what is reasonable in the circumstances. The role of the

medical profession in assessing negligence is clarified in this judgment:

‘Although it has often been said in South African cases that the governing test for

professional negligence is the standard of conduct of the reasonable practitioner in the

particular professional field, that criterion is not always itself a helpful guide to find the

answer. The present case shows why. Apart from the absence of evidence of what practice

prevailed one is not simply dealing here with the standard of, say, the reasonable

attorney or advocate, where the court would be able to decide for itself what was reasonable

conduct. How does one, then, establish the conduct and views of the notional

reasonable anaesthetist without a collective or representative opinion?’ In assessing

expert opinions on the reasonable standard ‘… the Court is not bound to absolve the

defendant from liability for allegedly negligent medical treatment or diagnosis just

because evidence of expert opinion, albeit genuinely held, is that the treatment and

diagnosis in issue accorded with sound medical practice. The Court must be satisfied

that such opinion has a logical basis, in other words that the expert has considered

comparative risks and benefits and has reached “a defensible conclusion”.’ 76

Of considerable significance to this issue, and to a wide range of issues arising

in medical malpractice was the endorsement by the Supreme Court of Appeal in

Michael v Linksfield Park Clinic 77 of the speech of Lord Browne-Wilkinson in Bolitho

v City and Hackney Health Authority. 78 In Bolitho, the House of Lords addressed the

approach to professional negligence set out in Bolam v Friern Hospital Management

Committee. In Bolam, the Court held that ‘a doctor is not guilty of negligence if

he has acted in accordance with a practice accepted as proper by a responsible

body of medical men skilled in that particular art.’ 79 The English law, relying

on Bolam, subsequently developed a line of authority that the courts could not

substitute their views for the evidence of medical experts as to the reasonableness

of a medical practitioner’s conduct, and therefore his or her negligence. The

Bolam principle expanded into all sorts of other areas of medical law. The underlying

issue is the relationship between medical practitioner and patient, and the

changing nature from that of medical paternalism to a recognition of the fundamental

right of individual autonomy and self-determination to which many

the principle emerged that a doctor will not be negligent if he acted ‘in accordance with the

practice accepted by a responsible body of medical men skilled in that particular art.’ (Bolam

v Friern Hospital Management Committee [1957] 2 All ER 118 and Bolitho v City and Hackney

Health Authority [1997] 4 ALL ER 771). The ‘Bolam test’ was rejected in Australia in Rogers

v Whitaker (1993) 67 ALJR 47, where it was held that the standard ‘is not determined solely

or even primarily by reference to the practice followed or supported by a responsible body

of opinion in the relevant profession or trade’. In South Africa, the test in Bolitho v City and

Hackney Health Authority supra was accepted in Michael v Linksfield Park Clinic (Pty) Ltd 2001

(3) SA 1188 (SCA) at [36].

75

2001 (3) SA 1188 (SCA).

76

At paras [35] and [37]. See also Van Wyk v Lewis 1924 AD 438 at 444; Durr v ABSA Bank Ltd

1997 (3) SA 448 (SCA).

77

At paras 241–242.

78

[1997] 4 ALL ER 771 at 241–242.

79

[1957] 2 All ER 118 at 122.

94


countries, including South Africa, are moving. 80 In Bolitho, the Court addressed

the position, and held that ‘the Court is not bound to hold that a defendant

doctor escapes liability for negligent treatment or diagnosis just because he leads

evidence from a number of medical experts who are genuinely of the opinion

that the defendant’s treatment or diagnosis accorded with sound medical practice

… the Court has to be satisfied that the exponents of the body of opinion

relied upon can demonstrate that such opinion has a logical basis.’ 81 The Supreme

Court of Appeal, in endorsing Bolitho, has endorsed that interpretation of Bolam.

This accords with the approach taken in Castell v De Greef 1994 (4) SA 408 (C) in

the context of informed consent. 82

6.19 The foreseeability test

The formulation of the test for negligence in Kruger v Coetzee 83 requires that the

reasonable person in the position of the defendant would foresee the reasonable

possibility of his or her conduct harming another. This is commonly referred to

as the ‘foreseeability test’.

There are two differing approaches to the foreseeability test: the ‘abstract’ or

‘absolute’ approach, and the ‘concrete’ or ‘relative’ approach. Both enjoy academic

support, and are reflected in the case law. Some appreciation of these previously

divergent views is therefore necessary for a proper reading of authorities dealing

with the foreseeability test, and a very brief summary is set out below. That said,

however, a rapprochement has in recent years emerged through the manner in

which the two approaches have been applied by the courts. In the light of recent

decisions of the Supreme Court of Appeal 84 it can now, from a practical point of

view, be accepted that either approach will usually yield the same result. 85 This is

80

Castell v De Greef 1994 (4) SA 408 (C) at 426.

81

[1998] AC 232 at 241.

82

For a full discussion of the impact which Bolitho had on Bolam, see esp Braizier & Miola ‘Bye

Bye Bolam: A Medical Litigation Revolution?’ Medical Law Review 8, Spring 2000 at 85–114,

Oxford University Press. The Bolam judgment had far-reaching influence on the development

of a number of fundamental principles in medical law. This makes the acceptance of

the dictum in Richter and Another v Estate Hammann 1976 (3) SA 226 (C) at 232 G–H in which

the ‘reasonable doctor’ test was accepted most curious. The quotation from Richter referred to

in Louwrens v Oldwage 2006 (2) SA 161 (SCA) deals with the ‘doctor’s dilemma’. It is submitted

that there is nothing objectionable about this principle, nor of the principle that a particular

risk may be so negligible that no duty to mention the risk arises. It would appear that the

Court in Louwrens v Oldwage did not direct its attention to the issues raised in Bolam, and

the implications thereof. That being the case, Michael v Linksfield Park Clinic 2001 (3) SA 1188

(SCA) reflects the current state of the law on this issue.

83

1966 (2) SA 428 (A). See para 6.16 above.

84

See e g Ocean Accident and Guarantee Corporation Ltd v Koch 1963 (4) SA 147 (A); Kruger v van der

Merwe 1966 (2) SA 266 (A); Sea Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty)

Ltd 2000 (1) SA 827 (SCA); Mkhatswa v Minister of Defence 2000 (1) SA 1104 (SCA); Mukheiber

v Raath 1999 (3) SA 1065 (SCA); Avonmore Supermarket CC v Venter 2014 (5) SA 399 (SCA);

Minister of Safety and Security v Scott and Another 2014 (6) SA 1 (SCA) at 12 esp fn 17.

85

See also in this regard the discussion in Neethling et al Law of Delict 6 ed (LexisNexis 2010)

at 141–143.

Fault 95

a laudable development, as any test which is used is ultimately an aid to assessing

the reasonableness of the conduct in question. 86

6.19.1 The abstract (or absolute) approach

On this approach, the defendant’s conduct is assessed in the abstract, and is

regarded as unreasonable if any harm to any person was foreseeable, and the

defendant failed to take reasonable steps to guard against its occurrence. 87 The

extent of the damage or the particular consequence that occurred need not have

been reasonably foreseeable. Whether the defendant is liable for the specific

harm in question is answered with reference to legal causation. The strict abstract

approach has been diluted by the courts through the development of principles

such as that the general nature of the harm, or the general manner in which the

harm was caused, must have been reasonably foreseeable. 88

6.19.2 The concrete (or relative) approach

On this approach, negligence is assessed with reference to the specific consequences

of the conduct under consideration: it is contended that it is a prerequisite

for negligence that the occurrence of the particular consequences must have

been reasonably foreseeable. 89 Supporters of a strict application of the concrete

negligence approach argue that it removes the need for an enquiry into legal

causation, with its devilish complications, 90 in that negligence is assessed in relation

to the particular harm which occurred, which obviates the need for the

further inquiry into legal causation. This view has however been rejected by our

courts, 91 which have also diluted the strict application of concrete negligence by

holding that the concrete approach to negligence does not mean that the exact

nature and extent of the harmful consequence must be foreseen; it is sufficient

if the general nature of the consequence and the manner in which it was caused

was foreseeable. 92

The courts have therefore refined the operation of both the concrete and

abstract approach by requiring foreseeability of the general nature of the consequences

and the general manner in which the consequences occurred.

6.19.3 Practical considerations regarding reasonable foreseeability and preventability

The courts enjoy a wide latitude in assessing whether harm was reasonably foreseeable,

and will decide the issue on all the facts of a particular case. It is futile

86

See para 6.9 above. It would appear that this is a further instance of the courts’ reference to

the values which lie behind the rules, as to which see ch 1 above.

87

The test in Kruger v Coetzee 1966 (2) SA 428 (A) is expressed in terms of the abstract approach.

88

See e g Ocean Accident and Guarantee Corporation Ltd v Koch 1963 (4) SA 147 (A); Kruger v van der

Merwe 1966 (2) SA 266 (A); Sea Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty) Ltd

2000 (1) SA 827 (SCA); Mkhatswa v Minister of Defence 2000 (1) SA 1104 (SCA).

89

Boberg The Law of Delict vol 1 Aquilian Liability 2 imp (Juta 1984) at 276; Mukheiber v Raath

1999 (3) SA 1065 (SCA).

90

See ch 5 below.

91

Smit v Abrahams 1992 (3) SA 158 (C) at 163.

92

Neethling et al Law of Delict 6 ed (LexisNexis 2010) at 143 fn 130.

96


to attempt to define the courts’ approach too closely in this regard. Whether a

reasonable person in the position of the defendant would take any guarding steps

at all and, if so, what steps would be reasonable, must always depend upon the

particular circumstances of each case. No hard and fast basis can be laid down.

Hence the futility, in general, of seeking guidance from the facts and results of

other cases. 93

The courts approach the question of whether harm was reasonably foreseeable

on a robust, common-sense basis. As Viscount Simonds said, ‘After the event,

even a fool is wise. But it is not the hindsight of a fool; it is the foresight of the

reasonable man which alone can determine responsibility.’ 94 And in S v Bochris

Investments (Pty) Ltd and Another 95 Nicholas AJA said:

‘In considering this question, one must guard against what Williamson JA called the

insidious subconscious influence of ex post facto knowledge (in S v Mini 1963 (3) SA

188 (A) at 196E–F). Negligence is not established by showing merely that the occurrence

happened (unless the case is one where res ipsa loquitur), or by showing after it

happened how it could have been prevented. The diligens paterfamilias does not have

prophetic foresight …’

6.20 Preventability 96

The enquiry into the second leg of the test set out in Kruger v Coetzee 97 is into

the preventability of the harm. The preventability enquiry is sometimes overlooked

in practice. 98 This is particularly so where the defendant establishes that

he has taken some steps to prevent harm (as occurred in Kruger v Coetzee). The

preventability enquiry addresses the question of whether the reasonable person

would have taken steps to prevent damage from occurring, and what those steps

would have been. 99 The mere fact that foreseeable damage materialises does not

necessarily mean that insufficient steps were taken to prevent the damage. 100

Whether a person is required to act at all to avoid reasonably foreseeable harm

and, if so, what that person is required to do, will depend on what can reasonably

be expected in the circumstances of the particular case. Should the resulting

harm be reasonably foreseeable, but the reasonable person would have regarded

it as unnecessary or undesirable to prevent its occurrence, the conduct will not

93

Ngubane v South African Transport Services 1991 (1) SA 756 (A) at 776; Kruger v Coetzee 1966 (2)

SA 428 (A) at 430.

94

Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound) 1961 AC 388

(PC) ([1961] 1 All ER 404 at 424 (AC) and at 414G–H (in All ER).

95

1988 (1) SA 861 (A) at 866–867.

96

Van der Walt and Midgley Principles of Delict 3 ed (Durban, Lexis Nexis, 2005) at 145.

97

1966 (2) SA 428 (A).

98

Ngubane v South African Transport Services 1991 (1) SA 756 (A) at 776. The facts of Kruger v

Coetzee 1966 (2) SA 428 (A) supra serve as a salutary warning to be vigilant in this regard.

99

Ngubane v South African Transport Services 1991 (1) SA 756 (A); Avonmore Supermarket CC v

Venter 2014 (5) SA 399 (SCA).

100

Kruger v Carlton Paper of SA Ltd 2002 (2) SA 335 (SCA); Minister of Safety and Security v Van

Duivenboden 2002 (6) SA 431 (SCA) at 448. (See, in this regard, the concept of error of judgment

or medical misadventure at para 6.28 below).

Fault 97

be negligent. Broadly speaking, however, particular regard is often paid to the

nature and extent of the risk, the seriousness of the harm should it materialise,

the relative importance of the wrongdoer’s conduct and the cost and difficulty of

taking precautionary measures. The reasonable person may not perceive a need

to take steps to guard against the occurrence of harm for a number of reasons.

The risk of harm occurring may have been too slight, or the possible harm which

resulted may not have been serious enough, to have warranted preventative steps

being taken. The cost or difficulty of the preventative steps may also lead to them

being unreasonable in the circumstances. Similarly, the conduct in question may

also outweigh the prudence of avoiding or reducing harm.

Where the plaintiff alleges that a reasonable person in the position of the

defendant would have realised that harm may still have occurred, and would

have taken steps to prevent it, the question in this regard is whether the plaintiff,

on whom the onus rests, has proved that there were further steps which the

defendant could and should reasonably have taken. The plaintiff must ensure

that this issue is properly canvassed in order to discharge the onus. Failure to

do so will result in absolution being granted — as in fact happened in Kruger v

Coetzee. In medical malpractice cases this will often involve leading expert evidence

on what further medical procedures or steps could and should have been

taken in the circumstances.

6.21 Negligence judged in the light of surrounding circumstances

The standard against which the conduct in question is measured is commonly

expressed as being that of the reasonable person in the particular circumstances

of the case. There is one objective, abstract criterion of reasonableness, and that

is the court’s judgment of what is reasonable, and no hard and fast rule can be

laid down. 101 In Van Wyk v Lewis, 102 in relation to the negligence of a surgeon, the

court said:

‘We cannot determine in the abstract whether a surgeon has or has not exhibited reasonable

skill and care. We must place ourselves as nearly as possible in the exact position

in which the surgeon found himself when he conducted the particular operation

and we must then determine from all the circumstances whether he acted with reasonable

care or negligently. Did he act as an average surgeon placed in the same circumstances

would have acted, or did he manifestly fall short of the skill, care and judgment

of the average surgeon in the same circumstances? If he fell short, he was negligent.’

6.22 Examples of the application of the general principles of negligence in

medical cases

The following cases illustrate the application of the general principles discussed

above in the medical malpractice context.

101

Cape Town Municipality v Butters 1996 (1) SA 473 (C) at 482.

102

1924 AD 438 at 461.

98


In Collins v Administrator, Cape 103 the plaintiff was the father of a baby who at

16 weeks of age had been a patient in the paediatric tracheostomy unit of a hospital.

The baby sustained irreversible brain damage and was reduced to a vegetative

state which would remain for the rest of her life. A nurse had been left alone

in the unit the time, and the issue was whether the baby had suffered harm due

to her negligence. The incident which resulted in the brain damage occurred at

a time of day when the babies had all recently woken up and were clamouring

for attention. The Court found that this was all the more reason to keep the

babies under careful observation. In other words, in the circumstances in which

the nurse found herself, she was obliged to ensure that she did not devote her

attention solely to one child for too long. The Court found that it was her duty

constantly to be aware of how each child was doing. Having regard to the relatively

small size of the room, all that would have been required was a regular

glance at each child. The Court gained the impression that the nurse’s attention

was devoted to another child attempting to climb out of its cot. The nurse then

looked back in the direction of the patient and saw that a tracheostomy tube

inserted into the baby was not in place. By that time, however, the patient was

already limp and unconscious. The probability was that, on losing her tracheostomy

tube the patient would have thrashed around in obvious distress. It would

have taken in the region of about a minute for the patient to lose consciousness.

All this, however, was missed by the nurse. By the time she became aware of the

problem the patient was already unconscious. To compound matters, the nurse

was then inexplicably unable to replace the tracheostomy tube. The baby as a

result suffered permanent brain damage. The Court applied the principle that a

patient in a hospital is entitled to be treated with due and proper care and skill

in accordance with what a reasonable practitioner would ordinarily have exercised

under similar circumstances (in other words, the conduct of the particular

medical practitioner must measure up to the objective standard of the reasonable

medical practitioner). The nurse in question failed to exercise the care and skill

expected of a reasonable nurse in her position, and was found to be negligent.

In Pringle v Administrator, Transvaal 104 the plaintiff had undergone a mediastinoscopy

in order to have a small growth removed from her chest. The plaintiff’s

superior vena cava was torn during the procedure, resulting in “torrential”

internal bleeding, which in turn resulted in permanent damage to her brain. The

mediastinum was plugged when the bleeding was noticed, X-rays were thereafter

taken, and a thoracotomy performed to repair the vena cava. The plaintiff

alleged that the perforation of the vena cava and its consequences were the result

of negligence on the part of the surgeon. According to the surgeon’s own testimony,

the bleeding occurred when, in attempting to excise the growth using

biopsy forceps, he “tugged” at the instrument when it did not initially “bite”

cleanly. Under cross-examination the surgeon agreed that, in retrospect, he

103

1995 (4) SA 73 (C).

104

1990 (2) SA 379 (W).

Fault 99

had tugged too forcefully. The Court held that the reasonable surgeon would

not have committed the error of tugging too hard in the circumstances. The

surgeon had failed to apply the necessary degree of skill and diligence in the

course of the operation in that he had failed to conduct himself in accordance

with the standard of the reasonable surgeon, he had therefore been negligent,

and damages were awarded.

What is noteworthy about these two cases (which are selected from an extensive

list of similar cases) is that, in each case, the test for negligence was satisfied

because the reasonable medical practitioner would not have acted as the medical

practitioners did in both cases. As such, they failed to meet the standard of the

general level of skill and diligence possessed and exercised by the members of

the branch of the profession to which the practitioners belonged, and the practitioner

was found to have been negligent. It will also be noticed that, in both

cases, the reasonable medical practitioner in the position of the defendant would

have foreseen the reasonable possibility of his or her conduct causing harm to

another and would have taken reasonable steps to guard against such occurrence,

and in both cases, the medical practitioners failed to take such steps. The requirements

of foreseeability and preventability were therefore met. The practitioners

were accordingly negligent in both cases. The remaining elements for delictual

liability (unlawfulness, causation and harm) would still, however, have to be satisfied

for liability to result.

6.23 The problem of the novice 105

The degree of expertise possessed by a medical practitioner is obviously affected

to a large extent by the level of experience of the practitioner. It may be expected

that the standard of competence required of the newly qualified physician will

be somewhat less than that of the experienced practitioner. That, however, is not

the law. Where a beginner’s lack of skill generally exposes the public to an appreciable

risk of harm, no allowance should be made for that lack of proficiency

and expertise. The principle is long-established. 106 The principle is based on the

notion that, for reasons of public policy, a patient is entitled to expect the proficiency,

knowledge and skill which medical practitioners hold themselves out as

possessing. After all, the patient cannot assess the level of skill or experience of the

medical practitioner. The position of the novice raises the issue of the characteristics

of the ‘reasonable practitioner’, which is often dealt with as an application of

the principle of imperitia culpae adnumeratur. 107 As we have seen, a certain measure

105

See, generally, S v Mkwetshana 1965 (2) SA 493 (N); R v Van Schoor 1948 (4) SA 349 (C); Wilsher

v Essex Area Health Authority [1988] 1 All ER 871 HL; Jones v Manchester Corporation [1952] 2

All ER 125 at 133, CA; Van Niekerk et al ‘Is there a foundation in South African legislation

to require students to disclose their academic status to patients when involved in their care?’

S Afr BL 2014; 7(1) 9–13 — the authors point out that there are no South African guidelines for

healthcare students’ contact with patients.

106

Voet, Book IX Title 2: The Aquilian Law s 23.

107

See Imperitia culpae adnumeratur at para 6.27 below.

100


of subjectivity is introduced by judging the reasonable person being placed ‘in

the position of the [wrongdoer]’. To what extent, however, must the objectiveness

of the standard be tempered by subjective considerations? The approach is that

the inexperience of the particular medical practitioner is not considered and the

standard of the reasonable medical practitioner is maintained. 108 This approach

may be thought to impose too high a standard. The problem is particularly acute

in the public health setting. Due to limited resources, the reality is that junior,

inexperienced practitioners are placed in positions where they have to ‘learn on

the job’. However, the situation is mitigated by the courts’ approach that the

standard will be met should the novice seek advice or consult with more experienced

colleagues. 109

The facts of S v Mkwetshana 110 are set out in paragraph 6.27 below. For present

purposes, one of the reasons for the Court finding that the medical practitioner

who was still serving his internship was found to be negligent and guilty of

culpable homicide was that he had not sought advice from a more senior practitioner

when he could have done so. The decision is in principle similar to the

English case of Wilsher v Essex Area Health Authority, 111 where the plaintiff had

been born prematurely and had been admitted to a specialised neonatal intensive

care unit. An error was made by junior hospital doctors. It was claimed by

the plaintiff that this could have caused the virtually blinding condition which

subsequently occurred. The defendants contended that extensive use had to be

made of recently qualified medical and nursing staff due to resource constraints,

and that the standard of care expected of the junior doctor was not the same as

that of his experienced counterpart. It was stressed by the Court that an objective

standard would be applied which would not take account of an individual

doctor’s inexperience. However, the Court held that the standard of care is very

likely to be met if the novice seeks advice or consults with more experienced

colleagues when appropriate. In this respect, the reasoning is similar to the

Mkwetshana decision and the importance of the novice obtaining advice from

more experienced counterparts in order to avoid a determination of negligence

should be noted.

In R v Van Schoor 112 a young doctor was required to administer a dangerous

drug. He had no experience of doing so. The court found that he did not exercise

108

In Weber v Santam 1983 (1) SA 381 (A) at 410–411: Joubert JA, in dealing with the attributes of

the reasonable person, put it thus: ‘We are furthermore not concerned with what the care of

a legion of reasonable person types would have been, such as a reasonable educated person, a

reasonable illiterate person, a reasonable skilled labourer, a reasonable and skilled labourer, a

reasonable adult or a reasonable child. There is only one abstract, objective criterion, and that

is the Court’s judgment of what is reasonable, because the Court places itself in a position of

the diligens paterfamilias’.

109

It may be said that this approach in reality introduces an element of subjectivity into the

assessment of the test to be applied to the novice.

110

1965 (2) SA 493 (N).

111

[1988] 1 All ER 871 HL.

112

1948 (4) SA 349 (C).

Fault 101

the degree of care required in administering the drug. He failed to ascertain the

correct dosage and failed to satisfy himself as to the instructions in the use of the

drug. The Court found that, had he read the instructions, he would have seen

what was required of him and had he still been in doubt he could have consulted

with a more experienced practitioner.

6.24 Failure to follow up and render post-operative care 113

Having accepted a patient for treatment, the physician’s duty towards the patient

includes the duty to provide reasonable post-operative care and/or to reasonably

follow up on the patient. The physician’s duty to treat the patient generally

arises on commencement of the doctor–patient relationship. The very existence

of this relationship gives rise to the physician’s duty to take all reasonable steps

to prevent the patient from suffering harm. 114 This duty extends beyond the

period during which the patient is under the physician’s direct care, and covers

all future potential harm which is reasonably foreseeable. 115 It is not reasonable to

expect the patient to fix the date for follow-up treatment, or to leave it up to the

patient to decide on appropriate further treatment.

The duty to follow up and provide post-operative care does not, however,

saddle the physician with the responsibility of going to inordinate lengths to

ensure that the patient comes to no future harm. Undue hardship will not be

visited on the physician, nor will the physician be expected to do the impossible. 116

The courts recognize that, in many cases, the physician cannot be in constant

attendance upon the patient. It is therefore reasonable or even necessary for the

physician to make a patient responsible for some part of the treatment which he

receives. 117 This includes delegating to the patient the responsibility to return for

113

See, generally, Dube v Administrator, Transvaal 1963 (4) SA 260 (W); Webb v Isaac 1915 ECD

273.

114

See para 4.14 above ‘A special relationship between the parties’.

115

See ‘The foreseeability test’ at para 6.19 above.

116

Webb v Isaac 1915 EDL 273 at 280 and ff.

117

It has been held that the physician also has a duty to inform the patient of potential harm

and the risks of the intervention. See, esp: Lymbery v Jefferies 1925 AD 236; Prowse v Kaplan

1933 EDL 257; Dube v Administrator, Transvaal 1963 (4) SA 260 (W); Richter v Estate Hammann

1976 (3) SA 226 (C); See, contra: Castell v De Greef 1993 (3) SA 501 (C); Castell v De Greef 1994

(4) SA 408 (C); Allott v Paterson and Jackson 1936 SR 221. Sonny and Another v Premier of the

Province of Kwazulu-Natal and Another 2010 (1) SA 427 (KZP) quotes from Lord Nathan Medical

Jurisprudence at 46ff, where the learned author gives a lucid account of the obligations in such

circumstances: ‘In many cases it is reasonable or even necessary for the medical man to make

the patient himself responsible for the performance of some part of the treatment which the

medical man has undertaken to give. Where, as often happens, the medical man’s course of

action depends upon a report by the patient as to his condition or symptoms or as to the progress

of the treatment, the medical man has no choice in the matter; he must rely upon the

patient for the necessary information by which to determine what action should be taken,

and must therefore, in a sense, delegate to the patient part of his own duties. Frequently also

it would be quite unreasonable to expect the medical man to be in constant attendance upon

the patient or to exercise supervision over every detail of the treatment; he is compelled

therefore to delegate to the patient the performance of some part of the treatment or cure. …

In all these cases where the medical man justifiably delegates to the patient the performance

102


follow-up treatment. In such cases, it is the duty of the medical practitioner to

give clear and unambiguous advice to the patient, to explain to the patient in

understandable terms what it is that the patient must do, and to give a warning as

to the possible consequences of failing to comply with the advice. 118 Similarly, the

doctor or surgeon is under a duty to warn a patient of the implications of certain

symptoms and failure to do so may be negligent. 119

The failure to follow up or render post-operative care constitutes a potentially

negligent omission. As such, the principles of liability in such circumstances

apply. The question is, ultimately, whether the physician acted as the reasonable

medical practitioner would have done. In practice, there are numerous factors

which play a role in determining the standard of reasonableness. The personal

circumstances of the patient are important. Factors such as the availability of

medical services once the patient is discharged, the patient’s ability to understand

the advice, and the patient’s ability to comply with the advice all affect the question

of what the reasonable practitioner would have done in the circumstances.

In Premier of KZN v Sonny 120 the Court, in dealing with the obligation to

inform and advise the patient in the public health context, held that the reasonable

medical practitioner would have foreseen the possibility of the patient

falling through the cracks of the public health system and failing to return. The

reasonable medical practitioner would therefore have informed the plaintiff in

detail of the risk she faced and the nature and effect of the situation and of the

absolute necessity of further medical assessment. The Court stated: 121

‘I would go further. Having regard to the foreseeable consequence of some breakdown

of communication or gross misunderstanding that may occur in the clinic environment,

I think it was at least necessary for the doctor have given or caused to be given

some written instruction to the clinic to make it absolutely clear that the second plaintiff

was required to return.’

of some part of the treatment, there is a special duty towards the patient to give clear and

unambiguous instructions, to explain to the patient in intelligible terms what is required of

him and to give him any warning which may be necessary in the circumstances; and a failure

in any of these respects may amount to a breach of duty and expose the medical man to

liability for any injury which occurs.’ See also, generally, R v Van der Merwe 1953 (2) PHH 124

(W), where a physician was charged with culpable homicide for failing to place his patient

under proper observation after medication was administered and the patient died; Kovalsky v

Kriege (1910) 20 CTR 822, where a circumcision was performed and the medical practitioner

abandoned the baby before the bleeding was stopped. The Court held that the practitioner

had in fact stopped the bleeding had completed his treatment and was under no duty to

follow up; Silver v Premier, Gauteng Provincial Government 1998 (4) SA 569 (A), where a diabetic

had developed pressure sores during the course of her post-operative care in hospital and had

sued for negligence for the hospital’s failure to take proper precautions in preventing their

development — the claim however failed because causation was not established.

118

Dube v Administrator, Transvaal 1963 (4) SA 260 (W) at 269.

119

Dube v Administrator, Transvaal 1963 (4) SA 260 (W) at 269.

120

2011 (3) SA 424 (SCA).

121

At [25].

Fault 103

The premature discharge of a patient or cessation of a patient’s treatment may

be negligent. In Prowse v Kaplan, 122 discussed more fully below, a medical practitioner

was found to be negligent for allowing his patient to leave his care when

she was ignorant of certain injuries which she had sustained.

Clearly, the medical practitioner cannot simply abandon the patient before

treatment is complete. Should further treatment be necessary, then the physican

is under a clear duty to take reasonable steps to ensure that this occurs. However,

even when the treatment is apparently completed, but complications may arise,

there is a duty on the physician to provide the patient with reasonably sufficient

information to enable the patient to make informed decisions about future

medical treatment. The duty to advise must take into account the likelihood and

seriousness of risks occurring. The more likely or serious the possibility of complications

arising, the more likely it will be that the reasonable practitioner would

have provided the patient with information about the complication.

In Dube v Administrator, Transvaal 123 the Court found that a public hospital’s

medical practitioners had been negligent, inter alia, for failing to give a clear and

unambiguous instruction and warning to return to the hospital immediately if

pain suffered as a result of a comminuted fracture of the ulnar persisted and/

or swelling developed in the hand and fingers. The Court held that the patient

should have been warned of the possible consequences of not obeying such an

instruction implicitly. The very fact that many patients with fractures ignore

instructions to return indicated the need to give not only the instruction to

return, but also to impress upon each patient the risk of failing to do so. 124

In Webb v Isaac 125 the plaintiff alleged that the defendant, after performing

an operation on a fractured femur, had failed to remove the patient to a hospital,

or fix a date for follow-up treatment. The Court held that there was a good deal

of force in the argument that it was not reasonable for the patient to fix the date

of the doctor’s return visit. It should be noted, however, that the Court found

that it was impossible from the evidence to say that even had such a return visit

occurred, anything could have been done. Negligence was therefore established,

but not causation, and the claim failed.

6.25 Misdiagnosis 126

The law expects medical practitioners to exercise the same standard of skill and

care when making a diagnosis as is required in all dealings with patients: the

122

1933 EDL 257.

123

1963 (4) SA 260 (W).

124

At 269.

125

1915 ECD 273.

126

In addition to the South African cases considered below, culpable misdiagnosis has been held

in other jurisdictions to have occurred for failure to take a proper medical history, failure to

conduct reasonable tests and simple failure to diagnose a condition which a reasonable practitioner

would have diagnosed. It has been held, at a minimum, that the doctor must examine

his patient and pay adequate attention to the patient’s medical notes and to what the patient

tried to tell him: Chin Keow v Government of Malaysia [1967] 1 WLR 813 (failure to enquire

104


physician who fails to comply with the standard of the reasonable medical practitioner

in diagnosing a patient will be negligent. A wrong diagnosis is not necessarily

negligent. The courts accept that no human being is infallible, and it has

been said that ‘unfortunate as it was that there was a wrong diagnosis, it was one

of those misadventures, one of those chances, that life holds for people.’ 127 The

dividing line between such judicial fatalistic insouciance and a finding of negligence

is to be found in the principle that a practitioner will only be negligent if

his diagnosis is so palpably wrong as to be of such a nature as to imply an absence

of reasonable skill and care on his part, regard being had to the ordinary level of

skill in the particular branch of the profession of the practitioner. 128

In Mitchell v Dixon, 129 the Court considered whether there was a misdiagnosis.

It held that a medical practitioner is not expected to bring to bear the highest

possible degree of professional skill, but is bound to employ reasonable skill and

care. 130 That being so, the Court held that a medical practitioner is not necessarily

liable for a wrong diagnosis. No human being is infallible and in the present state

of science, even the most eminent specialist may be at fault in not detecting the

true nature of a diseased condition. The diagnosis must be ‘so palpably wrong as

to prove negligence, that is to say, if his mistake is of such a nature as to imply an

absence of reasonable skill and care on his part, regard being had to the ordinary

level of skill in the profession.’ 131

Similarly, in Coppen v Impey, 132 it was alleged that a physician had negligently

made an incorrect diagnosis. The defendant had diagnosed a case of tubercular

rheumatism, while the medical witnesses for the plaintiff stated that they saw

no indication of tuberculosis in respect of the plaintiffs. The plaintiff’s witness,

however, admitted that it would be a reasonable diagnosis to have suspected

tubercular rheumatism in this case. The Court stated that a medical man, while

he does not in law undertake to perform a cure, or to treat his patient with the

utmost skill and competence, is liable for negligence or unskillfulness in his treatment.

Unskillfulness is equivalent to negligence. The question was not whether

a correct diagnosis was made, but whether the diagnosis manifested a lack of

‘reasonable skill and judgment’. 133

as to the possibility of penicillin allergy); Coles v Reading and District Hospital Management

Committee (1963) (107) Sol Jo 115 (failure to consider possibility of tetanus). Telephonic diagnosis

or advice is hazardous, especially if the facts of a possible diagnosis could only be verified

by proper clinical examination (Barnett v Chelsea and Kensington Hospital Management

Committee [1968] 1 All ER 1068 ).

127

In the English decision of Crivon v Barnet Group Hospital Management Committee (1959) The

Times, 19 November.

128

Mitchel v Dixon 1914 AD 519.

129

Ibid.

130

At 525.

131

At 526.

132

1916 CPD 309.

133

At 321.

Fault 105

The position is, therefore, that the plaintiff, in seeking to establish liability on

the basis of a misdiagnosis must prove not only that the diagnosis was wrong,

but that the diagnosis was negligently made in that the degree of skill and diligence

was lacking which is expected of the reasonable medical practitioner in

the branch of the profession to which the defendant belongs. 134 For this reason,

it is not necessarily sufficient for the plaintiff to establish that other practitioners

disagree with the diagnosis, or indeed that the plaintiff’s expert is right in the

alternative diagnosis. However, where a physician makes an incorrect diagnosis

and, in doing so, fails to comply with the standard of the reasonable medical

practitioner, the practitioner will be negligent.

In Prowse v Kaplan 135 the defendant, a dentist, was sued for damages due to

alleged negligence. The Court found that (1) in the course of an extraction-operation,

the defendant had caused a dislocation of the plaintiff’s jaw which he

should, on such examination as it was his duty to make, have perceived; (2) that

although the plaintiff remained in the defendant’s care for some time thereafter,

and subsequently returned to his care, the defendant made no attempt to remedy

the dislocation and failed to inform the plaintiff of its existence; (3) that he thereafter

for the first time made an unsuccessful attempt to remedy the dislocation,

but in doing so, caused a fracture of the jaw and that (4) the defendant failed to

inform the plaintiff of the existence of a fracture for some time thereafter. The

Court found that the defendant was negligent in that he had omitted to inform

the plaintiff of the nature of the injuries he had caused, he had failed to treat the

dislocation and had allowed the plaintiff to leave his care, ignorant of the injuries

and still suffering from those injuries.

In Blyth v van den Heever 136 the plaintiff had sustained fractures of his right

radius and ulna. After the defendant, a medical practitioner, had operated to

reduce the fractures, sepsis had set in, together with an ischemic condition. The

plaintiff had ultimately been left with a useless clawlike right arm. The case

revolved around an enquiry into the defendant’s post-operative care of the plaintiff.

The chief complaint against the defendant was that he had failed to take

action which in the circumstances he could reasonably have been expected to

take. The Court found that the reasonably skilled and careful medical practitioner

in the position of the defendant would have been aware of the danger of

an ischemic condition developing in the plaintiff’s forearm, and would have realised

that the development of a compartmental syndrome was a special risk in this

case. This would have placed upon the defendant a duty to be especially careful

to watch out for any untoward signs that might point to the development of an

ischemic condition and to act immediately if any such signs became apparent.

Moreover, a reasonably skilled and careful medical practitioner in the position

of the defendant would have realised that there were symptoms which, even if

134

See the discussion of the reasonable medical practitioner at para 6.18 below.

135

1933 EDL 257.

136

1980 (1) SA 191 (A).

106


they did not demonstrate a developing ischemia, raised a real suspicion that one

might be developing. The Court accordingly found that the defendant was negligent

in failing to diagnose that a serious ischemic condition was developing or

threatening to develop.

6.26 Failure to refer 137

The failure to refer a patient to a specialist or practitioner with particular skill,

training or experience may constitute negligence. Where a medical practitioner

is doubtful about a diagnosis, it may be good practice to refer the patient to a

specialist and failure to do so may fall short of the standard of the reasonable

medical practitioner. In the English case of Wilsher v Essex Area Health Authority, 138

the Court held 139 that ‘… it is normally no answer for [the medical practitioner]

to say the treatment he gave was of a specialist or technical nature in which he

was inexperienced. In such a case, the fault of the doctor lies in embarking on

giving treatment which he could not skillfully offer: he should not have undertaken

the treatment but should have referred the patient to someone possessing

the necessary skills.’ 140

In McDonald v Wroe 141 the defendant, a general dental practitioner, extracted

three of the plaintiff’s wisdom teeth. During the procedure, she suffered trauma

to the inferior alveolar nerve on the left side of her face, which resulted in a

feeling of numbness and ‘pins and needles’. The sequelae were permanent. The

plaintiff sued the defendant, inter alia, for negligently failing to offer to refer the

plaintiff to a specialist maxilla-facial and oral surgeon for the removal of her

wisdom teeth. The Court a quo accepted that the defendant had the necessary

skill to perform the surgery correctly and had in fact done so, and had not performed

the surgery negligently. 142 On appeal, in Wroe v McDonald 143 the Court

upheld the finding that the defendant was not under a duty to refer the plaintiff

to a specialist because he had the necessary skill to perform the procedure.

The failure to refer is in certain circumstances closely related to the principle

of imperitia culpae adnumeratur, in that one who has insufficient knowledge and

137

See, generally, S v Mkwetshana 1965 (2) SA 493 (N); Lymbery v Jefferies [1925] AD 236.

138

[1988] 1 All ER 871 HL.

139

Per Sir Nicolas Browne-Wilkinson V-C at 833.

140

The principle in Wilsher is similar to that articulated by our courts in S v Mkwetshana 1965

(2) SA 493 (N) (conviction of an inexperienced practitioner of culpable homicide for causing

the death of a patient); and S v Nel 1987 TPD (unreported) (conviction of a general medical

practitioner of culpable homicide for negligence in failing to call in a specialist obstetrician

in a complicated delivery).

141

[2006] 3 All SA 565 (C).

142

The case also dealt with an argument that the defendant had failed to warn the plaintiff of

the risk of permanent nerve damage, which was both unlawful and negligent, and had the

plaintiff been warned of the risk, she would have had the procedure done by a specialist

surgeon in which event, so reasoned the Court, there would have been a lesser likelihood of

the harm being caused. The Court accordingly found that the defendant had been negligent

on this ground; this was reversed on appeal.

143

[2011] JOL 29733 (C).

Fault 107

experience in a particular case and proceeds to treat the patient may be negligent,

and the problem of the novice in that the issue of the negligence of the new

practitioner, who lacks certain skill and experience, is influenced by whether he

or she should have referred the patient in the particular circumstances of the

case. 144

6.27 Imperitia culpae adnumeratur

The literal meaning of this maxim is that ignorance or lack of skill is deemed

to be negligence. 145 Boberg 146 criticises the maxim as being misleading because

‘lack of skill can never in itself amount to negligence, for no one can be skilful at

everything.’ 147 However, the true meaning of the principle emerges from the following

statement by Voet: ‘The reasonable person has no special skills and lack of

skill or knowledge is not per se negligence. It is, however, negligent to engage voluntarily

in any potentially dangerous activity unless one has the skill and knowledge

usually associated with the proper discharge of the duties connected with

such an activity.’ 148 Thus where expert skill, knowledge or experience is required

to perform an activity and the person undertaking the activity lacks these qualities

and knows, or should reasonably know, that this is the case, then such person

will be held to the standard of the reasonable person possessing those qualities.

Therefore, the medical practitioner who engages in an undertaking that requires

certain training, knowledge, experience, skill, competence or diligence, knowing

that he or she lacks such qualities, will be judged according to the standard of the

reasonable practitioner who does possess those qualities.

In Coppen v Impey 149 the plaintiff sought to recover damages for an injury to

her hand, which she alleged was due to an x-ray burn caused by the negligence

or want of skill of the defendant, a medical practitioner. The Court held that,

while the medical practitioner does not undertake to perform a cure, or to treat

his patient with the utmost skill and competence, the practitioner will be liable

for negligence or unskillfulness in treatment because, ‘by holding himself out as

144

See para 6.27 below.

145

Voet 9 2 23; Neethling et al Law of Delict 6 ed (LexisNexis 2010) at 140. The starting point

for an understanding of this principle remains the statement by Voet that ‘Lack of skill or

strength in art or craft are counted as negligence.’ Lack of skill in an art on the part of the

one who puts that art up for sale or professes it is accounted as negligence. So is it with lack

of strength, since no one ought to pursue that in which he either understands or ought to

understand that his lack of strength or skill will be dangerous to another. It follows that

doctors, sellers of drugs and midwives who operate unskilfully, prescribe medicines to drink

or inject them by clyster or otherwise administer them wrongly, or give poison instead of

medicine are also held liable under this law. Even as the coming of the end of life ought not

to be laid at a doctor’s door, so too it is not right that under the cloak of human frailty the

wrongdoing of one who cheats men in danger by empty bragging about his practice of medicine

should bring no real consequences.’ Voet, Book IX, Title 2 The Aquilian Law s 23.

146


147


148

Voet, Book IX, Title 2 The Aquilian Law s 23.

149

1916 CPD 309.

108


a professional man, he undertakes to perform the service required of him with

reasonable skill and ability. Unskillfulness on his part is equivalent to negligence

and renders him liable to the plaintiff, who has sustained injury therefrom, the

maximum of the law being imperitia culpae adnumeratur.’ 150 The Court however

found that the defendant had not held himself out as a specialist in the use and

application of x-rays and had therefore not dealt with the case from the specialist’s

point of view, but as the usual and ordinary practitioner. Accordingly a

higher degree of care and skill was not required of him than from the ordinary

medical practitioner. The Court held that with every skill and care an x-ray burn

may have occurred, and that the plaintiff had accordingly failed to show any

negligence on the part of the defendant. 151

The facts of Dale v Hamilton are dealt with in paragraph 6.18 above. 152 For

present purposes, the case is relevant in that it demonstrates the principle that

the lack of a reasonable degree of care and skill amounts to negligence. The

defendant had neither asked where the tube was situated, nor did he personally

check to establish this. Yet, on his own admission, the position of the tube was

a vital factor in setting the time of the exposures, and the defendant’s failure

to establish the position of the tube caused the infliction of a very serious burn

to the patient. The factors which go to constituting the setting of the tube ‘are

things within the department, so to speak, of the radiographer himself, and that

he must satisfy himself as to those factors.’ 153 The Court accordingly found him

negligent.

In S v Mkwetshana, 154 the appellant, a medical practitioner, was serving his

internship. He was called to a patient who was in some distress. The appellant

diagnosed a severe acute form of asthma and ordered 20 ccs of aminophylline to

be administered. Five to seven minutes elapsed and there was no improvement.

The appellant decided to treat the patient with paraldehyde, and administered

20 ccs. The patient died shortly afterwards. The Court found that the dosage of

paraldehyde was excessive. The appellant contended that he was not negligent in

the circumstances as he was an intern, comparatively inexperienced and alone

on duty at the time when he was confronted with an emergency. It was argued

that he did his best in that emergency situation, bearing in mind his limited

experience. The Court was unsympathetic to this argument, and held that either

the appellant had insufficient knowledge about the drug and nevertheless took

the risk, or he was aware of the risks and that it was a dangerous drug to use in

the manner in which he did. The Court found that, on either construction, the

appellant was guilty of negligence. The Court found that information as to the

proper use of the drug was freely available and that there was no excuse for a

medical practitioner, even one just starting out, to have neither known the doses,

150

At 314.

151

See also para 6.28 below.

152

1924 WLD 184.

153

At 202.

154

1965 (2) SA 493 (N).

Fault 109

nor to have troubled to have them made available to him. The Court also found

that although the appellant was alone in that part of the hospital, he could have

communicated with a more senior practitioner. The Court found that the appellant

had sufficient opportunity to do so, and held that the appellant had been

negligent. The case demonstrates the view of the courts that when a medical

practitioner embarks upon a task for which he or she does not have training, skill

or knowledge, the practitioner assumes the risk of embarking upon that task.

The rationale is that the patient cannot assess the level of skill or experience of

the medical practitioner. By professing to have a certain skill and knowledge, the

medical practitioner is bound to such a standard, and the imperitia rule applies.

6.28 The concept of error of judgment or medical misadventure

The law draws a distinction between medical mistakes which it regards as excusable

and mistakes which amount to negligence. The true position is that an error

of judgment may, or may not, be negligent; it depends on the nature of the error.

The courts recognise that doctors are human beings and not machines, and that

it is human to err, but that some mistakes lie beyond the bounds of the standard

which is expected of the reasonable medical practitioner. 155

In Pringle v Administrator, Transvaal 156 (the facts of which are dealt with at

paragraph 6.22 above), the issue which the court had to decide was whether a

surgeon had acted negligently in tugging too forcefully at the plaintiff’s superior

vena cava. The defendant had clearly committed an error of clinical judgment,

but there was no suggestion that any act or omission by him ‘was so glaringly

below proper standards as to make a finding of negligence inevitable.’ 157 The

Court referred to Whitehouse v Jordan: 158

‘to say that a surgeon committed an error of clinical judgment is wholly ambiguous, for

while some such errors may be completely consistent with the due exercise of professional

skill, other acts or omissions in the course of exercising clinical judgment may

be so glaringly below proper standards as to make the finding of negligence inevitable’.

In determining whether a clinical error of judgment or medical mistake amounts

to negligence, the Court will consider whether the error or mistake is one that

the reasonable medical practitioner might have made in the circumstances.

If it is, then the practitioner is not negligent. However, if the error is one that

would not have been made by the reasonable medical practitioner in the circumstances,

then the practitioner is negligent: ‘If a surgeon fails to measure up to that

standard in any respect (‘clinical judgment’ or otherwise), he has been negligent

and should be so adjudged.’ 159 It is submitted that, in applying this principle,

155

Van Wyk v Lewis 1924 AD 438 at 470; See also ‘The concept of the reasonable medical practitioner’

at para 6.18 above.

156

1990 (2) SA 379 (W).

157

At 395.

158

[1981] 1 All ER 267 at 276 H.

159

Per Lord Edmund Davies in Whitehouse v Jordan [1981] 1 All ER 267 at 121, cited with approval

in Pringle v Administrator, Transvaal 1990 (2) SA 379 (W) at 385.

110


one must be alive to the fact that the true nature of the enquiry is into compliance

with the concept of reasonableness as an abstract, objective criterion. The

ascribing of various anthropomorphic characteristics to the ‘reasonable medical

practitioner’ is often useful, but should not be allowed to obscure the essence of

the underlying enquiry into reasonableness as an objective standard. 160

In Buthelezi v Ndaba, 161 a fistula had developed during the performance of a

hysterectomy procedure. The defendant conceded that during the operation the

plaintiff’s bladder had been compromised. The defendant could not explain how

this had occurred, but agreed that it should not have happened. The Supreme

Court of Appeal held that this concession by the defendant did not amount to

an admission of negligence. It quoted Lord Denning MR as saying: ‘with the

best will in the world things sometimes went amiss in surgical operations or

medical treatment. A doctor was not to be held negligent simply because something

went wrong’ 162 or as Scott J put it in Castell v De Greef, 163 ‘the test remains

always whether the practitioner exercised reasonable skill and care or, in other

words, whether or not his conduct fell below the standard of a reasonably competent

practitioner in his field. If the “error” is one which a reasonably competent

practitioner might have made, it will not amount to negligence’. In the light of

the fact that there was credible expert evidence to the effect that an injury of

the type which occurred could result despite reasonable care on the part of the

surgeon, and that this opinion was well supported by views expressed in international

journals in the field, the Court found that negligence on the part of the

defendant had not been established.

Gross medical mistakes will almost always result in a finding of negligence.

These cases fall into the category of being ‘so glaringly below proper standards

as to make a finding of negligence inevitable.’ 164 The sensational cases where the

wrong limb or organ is removed, or the wrong patient is operated upon, almost

inevitably settle out of court. There is therefore an unsurprising paucity of such

decisions, both in South Africa and internationally. 165

6.29 Negligence and omissions

Negligence as a form of fault must not be confused with omissions as a form of

conduct. The test for negligence, as discussed at paragraph 6.15 above is whether

the reasonable person in the position of the defendant would have foreseen

the possibility of harm, would have taken reasonable steps to guard against the

harm, and that the defendant failed to take such steps. Negligence can therefore

160

See, e g the remarks by Joubert JA in Weber v Santam Versekeringsmaatskappy Bpk supra, which

are discussed at para 6.16 above.

161

2013 (5) SA 437 (SCA).

162

Hucks v Cole [1968] 118 ULJ at 469.

163

1993 (3) SA 501 (C) at 512.

164

Per Lord Edmund Davies in Whitehouse v Jordan [1981] 1 All ER 267 at 121, cited with approval

in Pringle v Administrator, Transvaal 1990 (2) SA 379 (W) at 385.

165

See also para 6.32 below regarding the maxim res ipsa loquitur.

Fault 111

take the form of conduct as a positive act (a commissio) negligently performed,

or conduct in the form of an omission (an omissio) in the sense of a failure to act

positively to prevent harm. Thus, an omission to take reasonable steps to prevent

foreseeable harm (as part of the test for negligence) should not be confused with

an omission as a species of conduct. Moreover, an omission can be performed

intentionally or negligently; and a positive act can be negligent. Negligence is

therefore not relevant only in respect of an omission. The application of these

principles, as we have seen, can have important consequences in respect of the

evidentiary burden. 166

6.30 The distinction between fault and unlawfulness

The distinction between unlawfulness and fault must always be kept clearly in

mind; it is deceptively easy to fall into the trap of confusing the two concepts. In

this regard, see the discussion at paragraph 4.5 above. 167

6.31 Ordinary and gross negligence

It is sometimes important to differentiate between ordinary and gross negligence.

Some statutes referred to the concept of ‘gross negligence’, as do certain

contractual exclusionary clauses. 168 Gross negligence requires a departure from

the standard of the reasonable person to such an extent that it may properly be

categorised as extreme; it must demonstrate, where there is found to be conscious

risk-taking, a complete obtuseness of mind or, where there is no conscious risktaking,

a total failure to take care. 169

The distinction between dolus eventualis and gross negligence is that in dolus

eventualis the question is whether the wrongdoer actually foresaw the possibility

of the consequence, with negligence the question is whether the consequence,

objectively stated, was reasonably foreseeable. For dolus eventualis, the defender

‘consents’ to the consequence which is foreseen as a possibility, he ‘reconciles

himself’ to it, he ‘takes it into the bargain.’ 170

166

But not on the onus, in its true and original sense of being the duty of finally satisfying the

court that a litigant in entitled to succeed on the claim or defence: Pillay v Krishna 1946 AD

946 at 952; South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3)

SA 534 (A) at 548.

167

Loureiro and Others v Imvula Quality Protection (Pty) Limited 2014 (3) SA 394 (CC). The

Constitutional Court considered the element of negligence, and cautioned against conflating

the enquiries into wrongfulness and negligence (at 53); Country Cloud Trading CC v MEC

Department of Infrastructure and Development 2014 (2) SA 214 (SCA).

168

See Afrox Healthcare Bpk v Strydom 2002 (6) SA 21 (SCA).

169

MV Stella Tingas Transnet Ltd t/a Portnet v Owners of the MV Stella Tingas 2003 (2) SA 473 (SCA)

at 480–481.

170

S v Ngubane 1985 (3) SA 677 (A) at 685; Rudolph v Minister of Safety and Security 2009 (5) SA 94

(SCA) 100.

112


6.32 Res ipsa loquitur 171

‘Res ipsa loquitur’ means ‘the thing [referring to the incident in question] speaks

for itself.’ 172 The maxim applies where an accident happens in a manner which is

unexplained but which does not ordinarily occur unless there has been negligence.

The court may therefore be entitled to infer that the accident was caused

by negligence. 173

It is frequently difficult in medical malpractice cases to establish negligence

on the part of the defendant. A number of factors combine to produce this result:

the procedure in issue is often technically complex; the patient rarely has the

necessary expertise to assess whether the standard of the reasonable medical

practitioner has been complied with and the patient is often unconscious when

the procedure is performed. As a result, the doctrine of res ipsa loquitur has been

advanced as being relevant to the plaintiff establishing his or her case.

Therefore, in a well-known English case 174 where the plaintiff went into hospital

for an operation to be treated for two stiff fingers (as a result of Dupuytren’s

contracture), and came out with four stiff fingers, Denning LJ held that the plaintiff

was quite entitled to say: ‘I went into hospital to be cured of two stiff fingers.

I have come out with four stiff fingers and my hand is useless. That should not

have happened if due care had been used. Explain it if you can.’ Where circumstances

analogous to these occur, then the plaintiff will have established a

171

In Goliath v Member of the Executive Council for Health, Eastern Cape (unreported at the time

of going to print, but available as (085/2014) [2014] ZASCA 182; 2015 (2) SA 97 (SCA) (25

November 2014). 12]) the Court held: ‘Thus in every case, including one where the maxim

res ipsa loquitur is applicable, the enquiry at the end of the case is whether the plaintiff has

discharged the onus resting upon her in connection with the issue of negligence (Osborne

Panama SA v Shell & BP South African Petroleum Refineries (Pty) Ltd 1982 (4) SA 890 (A) at

897H–898A). That being so, and given what Holmes JA described as the “evolved mystique

of the maxim”, the time may well have come for us to heed the call of Lord Justice Hobhouse

to jettison it from our legal lexicon. In that regard he stated in Ratcliffe v Plymouth and Torbay

Health Authority [1998] EWCA Civ 2000 (11 February 1998): “In my judgment the leading

cases already gives sufficient guidance to litigators and judges about the proper approach to

the drawing of inferences and if I were to say anything further it would be confined to suggesting

that the expression res ipsa loquitur should be dropped from the litigator’s vocabulary

and replaced by the phrase a prima facie case. Res ipsa loquitur is not a principle of law: it does

not relate to or raise any presumption. It is merely a guide to help to identify when a prima

facie case is being made out. Where expert and factual evidence has been called on both

sides at a trial its usefulness will normally have long since been exhausted.” [13] Medical negligence

cases do sometimes involve questions of factual complexity and difficulty and may

require the evaluation of technical and conflicting expert evidence. But the trial procedure,

which is essentially the same as in other cases, is designed to deal with those and thus no

special difficulty ought to be involved in determining them.’

172

Groenewald v Conradie 1965 (1) SA 184 (A) at 188. See, generally: Arthur v Bezuidenhout and

Mieny 1962 (2) SA 566 (A); Stacey v Kent 1995 (3) SA 344 (E) at 352; Bayer South Africa (Pty)

Ltd v Viljoen 1990 (2) SA 647 (A) at 662; Neethling et al Law of Delict 6 ed (LexisNexis 2010)

at 155. In respect of medical malpractice cases, see: Van Wyk v Lewis 1924 AD 438; Pringle v

Administrator, Transvaal 1990 (2) SA 379 (W); Broude v McIntosh 1998 (3) SA 60 (SCA); Blyth v

Van den Heever 1980 (1) SA 191 (A); Buthelezi v Ndaba 2013 (5) SA 437 (SCA).

173

Hoffmann & Zeffertt The South African Law of Evidence 4 ed (Butterworths 1988) at 551.

174

Cassidy v Ministry of Health [1951] 2 KB 343 at 365.

Fault 113

prima facie case, and the burden will be on the defendant to rebut that case. The

challenge, however, lies in establishing that the harm ‘should not have happened

if due care had been used’. In Van Wyk v Lewis, 175 (the facts of which are discussed

in paragraph 6.18 above), the Court assessed the application of the doctrine to a

claim for medical negligence. The plaintiff was unable to establish that the swab

would not have been left behind had the defendant met the standard of the reasonable

medical practitioner; the swab may in any event have been left in the

patient. The Court held that that the mere fact that swab was left in a patient was

not conclusive of negligence. Swabs may be left in a patient in circumstances in

which it is preferable to do so rather than taking further time to locate a swab

left in the patient. For this reason, it was held that the maxim res ipsa loquitur did

not apply to the circumstances of the case and, accordingly, no prima facie case

was established.

The courts have, on the whole, demonstrated a marked reluctance to apply

the doctrine of res ipsa loquitur to medical cases. 176 The usually complex nature

of the facts, combined with the principle that medical misadventure or error of

judgment is not necessarily negligent, militate against the maxim being applied.

It must be borne in mind that the doctrine of res ipsa loquitur is no more than a

convenient phrase to describe the proof of facts which are sufficient to support

an inference that a defendant was negligent, and therefore establish a prima

facie case to that effect. The maxim is, therefore, somewhat misleading — it is

ultimately merely a tautologous catchphrase with no intrinsic legal content: the

ordinary principles governing the evidential proof which underlie the maxim are

unaffected by it. It is submitted that the maxim is best left well alone in medical

malpractice cases and attention should rather be given to the usual principles

applicable to the burden of proof and sufficiency of evidence.

175

1924 AD 438.

176

See esp Goliath v Member of the Executive Council for Health, Eastern Cape (unreported at the

time of going to print, but available as (085/2014) [2014] ZASCA 182; 2015 (2) SA 97 (SCA) (25

November 2014) at footnote 170.

Appendix 1

The Aquilian Action 1

Based on Pringle v Administrator, Transvaal 2

Annexure: Particulars of claim

1. The plaintiff is [set out plaintiff’s details as required by the relevant rules of court].

2. The defendant is [set out defendant’s details as required by the relevant rules

of court], a general medical practitioner, practising as such and carrying on

business at [address].

3. On or about [date] and at [place] the parties, representing themselves, concluded

an oral contract (‘the contract’), 3 the material terms of which were:

3.1 that the defendant would provide the plaintiff with professional medical

services for reward;

3.2 the professional medical services consisted of performing an operation

on the plaintiff in order to remove a growth from her chest (‘the professional

services’).

4. The defendant was under a duty to perform the professional services in

accordance with the general level of skill and care possessed and exercised at

the time by the reasonable general medical practitioner. 4

5. The duty arose from: 5

5.1 an express, implied or tacit term of the contract; and/or

5.2 a special professional relationship of doctor and patient which at all

material times existed between the parties.

6. In breach of the contract, alternatively negligently, the defendant failed to

exercise the degree of care and skill required of a general medical practitioner

in that the defendant:

6.1 failed to utilise the correct procedure in performing the professional

medical services and/or;

6.2 performed the professional medical services negligently in that he

damaged the plaintiff’s superior vena cava by tugging too forcefully on

it. 6

1

See discussion in ch 3 above, esp paras 3.9–3.10.

2

1990 (2) SA 379 (W).

3

See the discussion on the role of the law of contract in para 3.5 above.

4

The duty arises in contract and in delict. For a discussion of the contractual duty see, generally,

chs 3 and 4 above, esp at para 4.14.2. The required standard of conduct in the law of

delict is discussed at paras 6.16–6.18 above.

5

A concursus actionum exists in this case — see para 3.5 above. As to the duty of care, see para 4.4

above.

6

The allegations in para 6 establish the conduct on the part of the defendant. In this regard

see para 4.13 above.

115

116


7. The defendant’s conduct as set out in paragraphs 6.1. to 6.2 caused 7 the

plaintiff to suffer renal failure which resulted in localised brain damage and

loss of vision, as a result of which the plaintiff:

7.1 experienced permanent loss of the amenities of life [details of damages as

required by the relevant rules of court]; 8

7.2 incurred medical expenses by consulting a private medical practitioner

for treatment [details of damages as required by the relevant rules of court]. 9

8. In the premises the defendant is liable to pay the sum of [quantum] to the

plaintiff.

9. Notwithstanding written demand delivered to the defendant on [details], the

defendant has failed to pay the sum claimed to the plaintiff.

WHEREFORE [etcetera …]

7

See ch 5 above and, regarding factual causation, esp para 5.2.

8

See ch 3 above and esp paras 3.17–3.18.

9


Appendix 2

Pain and Suffering 1

Particulars of claim 2



of court], a physiotherapist, practising as such and carrying on business at

[address].





3.2 the professional medical services consisted of performing physiotherapy

on the plaintiff (‘the professional services’).

4. The defendant was under a legal duty to perform the professional services in


the time by the reasonable physiotherapist (the ‘legal duty’). 4

5. The legal duty arose from: 5


5.2 a special professional relationship of medical practitioner and patient

which at all material times existed between the parties.




6.1 during the course of administering physiotherapy to the plaintiff,

caused her ankle to be sprained. 6

6.2 The defendant’s conduct as set out in paragraphs 6.1. to 6.4 caused 7

the plaintiff to experience temporary pain and suffering and loss of

the amenities of life [details of damages as required by the relevant rules of

court]; 8

1

See discussion in ch 3 above, esp paras 3.17–3.18.

2

There is no patrimonial loss or iniuria claimed; the action is distinct and sui generis.

3


4


chs 3 and 4, esp at 4.14.2. The required standard of conduct in the law of delict is

discussed at paras 6.16–6.18 above.

5


above.

6

The allegations in this paragraph establish the conduct on the part of the defendant. In this

regard see para 4.13 above.

7


8

See ch 3 above and esp paras 3.17 and 3.18.

117

118



plaintiff.




Appendix 3

Claim for Negligence for Misdiagnosis 1

Based on Mitchell v Dixon 2

Particulars of claim









3.2 the professional medical services consisted of conducting such examination

as was reasonably appropriate, and thereafter diagnosing and

advising the plaintiff on appropriate treatment (‘the professional

services’).

4. The defendant owed the plaintiff a legal duty to perform the services in

accordance with the general level of care, skill and diligence possessed and

exercised in the circumstances by the reasonable general medical practitioner

(the ‘legal duty’). 4


5.1 the contractual relationship between the parties; alternatively

5.2 the special professional relationship of doctor and patient which existed

between the parties.

6. On [date], the defendant negligently breached his legal duty in that:

6.1 the defendant wrongly made a diagnosis that the plaintiff was suffering

from a pneumo-thorax;

6.2 the defendant wrongly advised the plaintiff to undergo surgery for the

treatment of the pneumo-thorax;

6.3 the plaintiff was not suffering from a pneumo-thorax at the time that

the diagnosis was made, or at any other time material hereto; and

1

See discussion in ch 6 above, esp at 6.25.

2

1914 AD 519.

3


4



delict is discussed at paras 6.16–6.18 above.

5


above.

119

120


6.4 the diagnosis and advice was so palpably wrong that it would not in the

circumstances have been made by a reasonable general medical practitioner

acting with due care, skill and diligence. 6

7. As a result of the defendant’s wrong diagnosis and advice, the plaintiff consented

to and underwent a surgical procedure for the further exploration and

treatment of a pneumo-thorax when there was no need for such procedure.

8. The defendant’s negligent diagnosis and advice caused the plaintiff to

experience pain and suffering and loss of the amenities of life as a result

of the unnecessary surgical procedure, which is more fully particularised

as follows: [set out the nature of the injuries suffered and the calculation of the

amount claimed in terms of Rule 18(10) of the Uniform Rules of Court]. 7


plaintiff.




6

The allegations in paragraph 6 establish the conduct on the part of the defendant. In this

regard see para 4.13 above.

7


Appendix 4

Claim for Negligence against a Novice 1

Based on S v Mkwetshana 2

Particulars of claim

1. The plaintiff is [set out full names, date of birth, gender and occupation and residence

or place of business].

2. The defendant is [set out full name and gender], a qualified general medical

practitioner currently serving his internship at a hospital, namely [details].

3. The plaintiff was at all material times an in-patient at the hospital under the

care of the defendant.

4. The defendant owed the plaintiff a legal duty to perform the services in

accordance with the general level of skill and diligence possessed and exercised

in the circumstances by the reasonable general medical practitioner

(the ‘legal duty’). 3

5. The legal duty arose from the professional relationship of doctor and patient

which existed between the parties. 4

6. On [date], the defendant negligently breached his legal duty by administering

an excessive and lethal dose of undiluted paraldehyde (‘the drug’)

intravenously, in circumstances where:

6.1 he was aware that the drug was potentially lethal to use in the manner

in which he was using it; alternatively,

6.2 he had insufficient knowledge and experience of the correct dosages of

the drug to administer it safely, and he failed to ascertain the correct

dosages:

6.2.1 from available medical literature, and/or

6.2.2 by communicating with a more senior medical practitioner. 5

7. The defendant’s conduct as set out in paragraphs 6.1 to 6.2 caused 6 the

plaintiff to suffer the following injuries [details], as a result of which the

plaintiff:

7.1 experienced temporary pain and suffering and loss of the amenities of

life [details of damages as required by the relevant rules of court];

1

See discussion in ch 6 above, esp para 6.23.

2

1965 (2) SA 493 (N).

3



delict is discussed at paras 6.16–6.18 above. As to the duty of care, see para 4.4.

4

See discussion in ch 4 above, esp at para 4.14.6.

5

The allegations in para 6 establish the conduct on the part of the defendant. In this regard

see para 4.13 above.

6


121

122



for a second opinion and treatment [details of damages as required by the

relevant rules of court]. 7


plaintiff.




7

See ch 3 above and esp paras 3.9–3.10 and 3.17–3.18 regarding the action for patrimonial loss

and pain and suffering.

Appendix 5

Misdiagnosis or Failure to Diagnose 1

Based on Buls v Tsatsarolakis 2










3.2 the professional medical services consisted of examining and treating

the plaintiff for a suspected fracture of his right wrist.



the time by the reasonable general medical practitioner. 4



5.2 a special relationship of doctor and patient which at all material times

existed between the parties.




6.1 failed to conduct a reasonably competent physical examination of the

plaintiff’s right wrist and as a result failed to diagnose a fracture to the

scaphoid bone of the plaintiff’s right wrist;

6.2 failed to take reasonable steps to ensure that sufficient x-rays were taken

of the plaintiff’s wrist to allow a proper diagnosis to be made;

6.3 failed to treat the plaintiff’s right wrist in accordance with a reasonable

standard by failing to place the plaintiff’s right wrist in plaster; and/or

1

See discussion in ch 6 above, esp paras 6.25 and 6.28.

2

1976 (2) SA 891 (T).

3


4



delict is discussed at paras 6.16 -6.18.

5


above.

123

124


6.4 [further grounds of breach/negligence]. 6


proper treatment of the plaintiff’s wrist to be delayed by three weeks, as a

result of which the plaintiff:


life [details of damages as required by the relevant rules of court]; 8



relevant rules of court]. 9


plaintiff.




6


regard see paras 4.13–4.14 above.

7


8

See ch 3 above, esp paras 3.17 and 3.18.

9

See ch 3 above, esp paras 3.9 and 3.10.

Appendix 6

Failure to Refer 1

Based on McDonald v Wroe 2



2. The defendant is [set out defendant’s details as required by the relevant rules of

court], a dental practitioner, practising as such and carrying on business at

[address].





3.2 the professional medical services consisted of the removal of the plaintiff’s

wisdom teeth (‘the professional services’).

4. 4.1 The defendant was under a legal duty to perform the professional services

in accordance with the general level of skill and care possessed and

exercised at the time by the reasonable dental practitioner (the ‘legal

duty’). 4

4.2 The legal duty included the duty to warn the defendant of the risk of

permanent nerve damage in performing the professional services.

The duty arose from: 5

4.2.1 an express, implied or tacit term of the contract; and/or

4.2.2 a special professional relationship of doctor and patient which at

all material times existed between the parties.




5.1 prior to the operation, failed to warn the plaintiff of the risk of permanent

nerve damage resulting from the performance of the professional

services; and/or

1


2

[2006] 3 All SA 565 (C).

3


4



delict is discussed at paras 6.16–6.18.

5


above.

125

126


5.2 failed to refer the plaintiff to an expert maxillo-facial and oral surgeon

for the performance of the professional services. 6

6. The defendant’s conduct as set out in paragraphs 6.1. to 6.2 caused 7 the plaintiff

to consent to the professional services being performed by the defendant.

7. As a result of the professional services having been performed by the

defendant, the plaintiff suffered permanent nerve damage.

8. But for the defendant’s breach of his legal duty, and had the defendant

warned the plaintiff of the risk of permanent nerve damage:

8.1 the plaintiff would have approached a specialist maxillo-facial and oral

surgeon to perform the professional services; and

8.2 the risk of permanent nerve damage resulting from the performance of

the professional services would have been reduced.

9. 9.1 As a consequence of the circumstances set out in paragraphs 5 to 8

above, the plaintiff experienced permanent pain and suffering and loss

of the amenities of life [details of damages as required by the relevant rules

of court]; 8



relevant rules of court]; 9 and

9.3 [additional damages]


plaintiff.




6



7


8


9


Appendix 7

Claim for Negligent Failure to Render

Post‐Operative Care 1

Based on Premier, KZN v Sonny 2







an oral contract (‘the contract’), 3 the material express, implied or tacit

terms of which were:



3.2 the professional medical services consisted of treating and setting a fracture

to the plaintiff’s right femur, which included reasonable post-operative

and follow-up care and treatment (‘the professional services’); and

3.3 that the professional services would be performed in accordance with

the general level of skill and care possessed and exercised at the time by

the reasonable general medical practitioner.


accordance with the general level of skill and care possessed and exercised

at the time by the reasonable general medical practitioner (the ‘legal duty’). 4


5.1 the terms of the contract; and/or



6. On [date], the defendant treated and set the plaintiff’s right femur.

1

See the discussion on the role of the law of contract in para 3.5 above. See esp ch 6 para 6.24

above.

2

2011 (3) SA 424 (SCA).

3


4




5


above.

127

128


7. In breach of his legal duty, the defendant negligently failed to take one or

more of the following reasonable steps to guard against the plaintiff suffering

further injury:

7.1 the defendant failed to recommend that the plaintiff immediately be

transferred to a hospital; 6

7.2 the defendant failed to set a date for a follow-up consultation after the

fracture had been set; 7

7.3 the defendant failed to monitor the plaintiff’s condition with the necessary

vigilance 8 and/or

7.4 the defendant failed to give the plaintiff proper instructions to be followed

post-operatively while convalescing, such instructions consisting

of:

7.4.1 explaining to the plaintiff in clear and unambiguous terms what

was required of him and giving the plaintiff sufficient warning as

was necessary in the circumstances; 9

7.4.2 advising the plaintiff of any specific danger and the possibility of

its occurring; and/or 10

7.4.3 advising the plaintiff of the proper action to be taken should such

eventuality occur. 11

8. As a result of the defendant’s negligence the plaintiff [set out the nature of the

injuries suffered and the calculation of the amount claimed in terms of Rule 18(10)

of the Uniform Rules of Court].


plaintiff.




6

Webb v Isaac 1915 ECD 273.

7

Ibid.

8

Blyth v van den Heever 1980 (1) SA 191 (A) at 222.

9

Lord Nathan’s Medical Jurisprudence 9 (pp 46 et. Seq.) Cited in Premier of KZN v Sonny 2011

(3) SA 424 (SCA) at 431 and Dube v Administrator, Transvaal 1963 (4) SA 260 (W) at 268E–H.

10

Premier, KZN v Sonny 2011 (3) SA 424 (SCA).

11

Premier, KZN v Sonny 2011 (3) SA 424 (SCA).

Appendix 8

Professional Error of Judgment 1

Based on Whitehouse v Jordan [1981] 1 All ER 267 2



2. The defendant is [set out defendant’s details as required by the relevant rules of

court], a specialist obstetrician and gynaecologist, practising as such and carrying

on business at [address].





3.2 the professional medical services consisted of delivering the plaintiff’s

baby (hereinafter referred to as ‘the professional services’).



the time by the reasonable obstetrician and gynaecologist. 4






exercise the degree of care and skill required of the reasonable obstetrician

and gynaecologist in that:

6.1 on or about [detail], and at [detail], the defendant conducted a trial

forceps delivery; 6

6.2 during the course of the delivery, the defendant tugged too hard on the

baby’s head with the forceps; and/or

6.3 the defendant allowed the trial forceps delivery to continue unreasonably

long before a caesarean section procedure was performed;

1


2

Pringle v Administrator, Transvaal 1990 (2) SA 379 (W).

3


4




5


above.

6



129

130


[further grounds of breach/negligence].

7. As a result of the defendant’s negligence, the baby suffered severe brain

damage [details of further injuries and quantum];


plaintiff.

9. Notwithstanding demand, the defendant has failed to pay the sum claimed.


Appendix 9

Imperitia Culpae Adnumeratur 1

Based on Dale v Hamilton 2






3. On or about [date] and at [place] the defendant provided the plaintiff with

professional medical services, which consisted of performing an x-ray

examination for the purpose of diagnosing kidney stones (‘the professional

services’).


accordance with the general level of skill and care possessed and exercised

at the time by the reasonable medical practitioner with training, experience

and skill in conducting x-ray examinations (the ‘legal duty’). 3



material times existed between the parties; and/or

5.2 the defendant at all times material hereto holding out that he had

reasonably sufficient training, experience and skill to enable him to

perform the professional services.

6. In breach of his legal duty, the defendant negligently failed to exercise the

degree of care and skill required in conducting x-ray examinations in that:

6.1 the defendant positioned the x-ray tube unreasonably close to the plaintiff

and, in so doing, unnecessarily exposed the plaintiff to the risk of

radiographic burns; 5

6.2 the defendant did not have reasonable knowledge of the operation of

the radiographic equipment which was used in performing the professional

services; and/or

[further grounds of breach/negligence].

1


2

1924 WLD 184.

3


chs 3 and 4 above, esp at 4.14.2. The required standard of conduct in the law of delict is

discussed at paras 6.16–6.18 above.

4

A concursus actionum exists in this case — see para 3.5 above. As to the duty of care, see

para 4.4 above.

5


regard see paras 4.13–4.14.

131

132



plaintiff to sustain radiographic burns, as a result of which the plaintiff:





relevant rules of court]; and/or

7.3 [further injuries]


plaintiff.




6


7


Appendix 10

General Surgery 1

Based on Pringle v Administrator, Transvaal 2




of court], a general surgeon, practising as such and carrying on business at

[address].





3.2 the professional medical services consisted of the performance of a

bronchoscopy and mediastinoscopy operation on the plaintiff (‘the professional

services’).



the time by the reasonable general surgeon (the ‘legal duty’). 4





6. The defendant, in breach of the contract, alternatively negligently, failed to

exercise the degree of care and skill required of a general surgeon in that the

defendant:

6.1 caused 6 the plaintiff’s superior vena cava to tear during the performance

of the professional services;

6.2 the defendant failed to detect the tear in the plaintiff’s superior vena

cava when he reasonably should have done so;

6.3 failed to detect that the plaintiff was losing an excesive amount of blood

at a time when they reasonably should have done;

1

See discussion in ch 6, esp para 6.27.

2

1990 (2) SA 379 (W).

3


4




5


above.

6


133

134


6.4 failed to avoid the plaintiff suffering injury when, through the exercise

of reasonable care and skill he could and should have done; and/or

6.5 [further grounds of breach/negligence].

7. The defendant’s conduct as set out in paragraphs 6.1. to 6.5 caused the plaintiff

to suffer permanent brain damage, as a result of which the plaintiff:

7.1 suffered general damages in the amount of [details of damages as required

by the relevant rules of court]. 7

7.2 suffered permanent damage to her eyesight; and/or

7.3 experienced permanent pain and suffering and loss of the amenities of

life [details of damages as required by the relevant rules of court]. 8


plaintiff.




7

Chapter 3 above.

8


Appendix 11

Plastic Surgery 1

Based on Castell v De Greeff 2




of court], a plastic surgeon, practising as such and carrying on business at

[address].





3.2 the professional medical services consisted of the performance of a subcutaneous

mastectomy and prosthetic implant procedure on the plaintiff

(‘the professional services’).



the time by the reasonable plastic surgeon. 4








6.1 performed the mastectomy and prosthetic implant simultaneously

instead of in two stages;

6.2 removed and repositioned the areolae unnecessarily, alternatively

without ensuring that the blood supply was sufficient to prevent

necrosis;

6.3 repositioned the areolae in breach of a specific agreement that he would

not do so;

1

See discussion in ch 6 above.

2

1994 (4) SA 408 (C).

3


4



delict is discussed at paragraphs 6.16–6.18.

5

A concursus actionum exists in this case — see para 3.5 above. As to the duty of care, see

para 4.4 above.

135

136


6.4 implanted a prosthesis which was larger than the one agreed upon with

the plaintiff; 6 and/or

6.5 [further grounds of breach/negligence].

7. The defendant’s conduct as set out in paragraphs 6.1. to 6.5 caused necrosis

of the tissue in the region of the plaintiff’s areolae, as a result of which the

plaintiff:




for treatment [details of damages as required by the relevant rules of court]; 8

and/or

7.3 suffered general damages [details].


plaintiff.




6


regard see paragraphs 4.13–4.14.

7


8

See ch 3 above and esp paras 3.9–3.10 and 3.17–3.18.

Index

Accountability … 80–81

mental disease or illness … 81

youth … 80

Actio iniuriarum … 18–23

Actio legis aquiliae … 17–18

Amendments to pleadings … 26–27

Animus iniuriandi see Intention

Aquilian action … 17–18

precedent … 115–116

Assessment, objective or subjective … 63–64

‘But for’ test … 60–73

exceptions … 65–70

medical malpractice cases, in … 64–65

standard of proof … 62–63

causation and damages … 63

Causation … 8–9, 59–78

concept of … 59–60

factual … 60–73

‘but for’ or sine qua non test … 60–73

see also ‘But for’ test

Cause of action … 6–7, 11–29

contract or delict … 13

definition … 11

delict … 15–16

multiple … 28–29

practical aspects … 26–29

relevance … 26

Children, negligence of … 88–89

Clinical malpractice … 17

‘Coloured intent’ see Unlawfulness: knowledge

of

Conduct — acts and omissions … 45–46

Confidentiality … 21–23

Consent … 5, 50–58

see also Refusal of treatment

court order … 58

defences excluding need for … 57

emergencies … 57

informed … 8, 20, 21, 50–51


doctor–patient relationship … 52–53

SA law, requirements … 53–54

lack of … 17

minors … 54–55

medical treatment … 55

pregnancy, termination of … 55–56

Consent, minors (cont)

surgery … 55

necessity … 57–58

negotiorum gestio … 57

patient’s autonomy and right to self-determination

… 51

statutory authority … 58

therapeutic privilege … 58

unauthorised administration … 57

Contract … 47–48

Control of dangerous object or person …

48–49

Corpus … 20

Culpa see Negligence

Delict … 12–17

SA law, in … 16–17

‘Diminished’ life … 43–45

Doctor–patient relationship and informed

consent … 52–53

Dolus see Intention

Duty of care … 34–35

Facta probanda … 11–12, 17, 19, 23, 26

Facta probantia … 11–12

Fault … 9–10, 35–37, 79–114

concept of … 79

definition … 79

forms … 80

unlawfulness, distinction … 111

Foreseeability test … 94–96

abstract (or absolute) approach … 95

concrete (or relative) approach … 95

practical considerations … 95–96

Grounds of justification for medical intervention

… 50

Ignorance deemed to be negligence …

107–109

Imperitia culpae adnumeratur … 107–109


Intention … 81–85

concept … 81

definition … 81

motive, distinct from … 83–85

privacy … 85

unlawfulness, and … 83

will, direction of … 81–82

Invasion of privacy see Privacy

137

138


Judgement, error of … 109–110

Legal causation … 73–77

‘Loss of a chance’ rule … 71–72

Medical malpractice

background … 12

key principles … 6–10

overview for medical practitioners … 5–10

Medical misadventure … 109–110

Medical practitioner

overview of malpractice law for … 5–10

reasonable see Reasonable person: medical

practitioner

Misdiagnosis … 103–106


Misstatement … 41–42

Motive … 83–85

Necessity … 57–58

Negligence … 85–114

assessing, medical profession’s role in …

92–94

children … 88–89

circumstances surrounding … 97

concept of … 86

definition … 85

diagnose, failure to, precedent … 123

error of judgement … 109–110

experience of practitioner … 99–101

follow up, failure to … 101–103

foreseeability test … 94–96

see also Foreseeability test

gross … 111

ignorance … 107–109

imperitia culpae adnumeratur … 107–109


medical cases … 97–99

medical misadventure … 109–110

misdiagnosis … 103–106, 121

precedent … 119–120, 123–124

novice … 99–101

precedent … 121

omissions … 110–111

ordinary … 111

plaintiff’s knowledge of … 26

pleading … 27

post-operative care, failure to render …

101–103


preventability … 96–97

reasonable person … 87

refer, failure to … 106–107


Negligence (cont)

skill, lack of … 107–109

test for … 86–87

Negotiorum gestio … 57

Omission … 46–50, 110–111

‘but for’ test … 61–62

contract … 47–48

control of dangerous object or person …

48–49

factors … 47

law, rules of … 49

omissio per commissionem … 48

prior conduct … 48

special relationship between parties … 49

Omissio per commissionem … 48

‘Once-and-for-all’ rule … 28

Pain and suffering, action for … 23–24

characteristics … 23–24

essential elements … 23


Party, identifying … 29

Physical integrity … 20–21

Post-operative care, failure to render … 101,

127–128

Prescription … 26

amendments to pleadings … 26–27

negligence, plaintiff’s knowledge of … 26

Preventability … 96–97

practical considerations … 95–96

Principles, summary of … 6–10

Privacy … 21

intention in invasion of … 85

Reasonableness … 37–38

Reasonable person … 87

medical practitioner … 89–94

Recognised risk-avoidance … 70–71

Refer, failure to … 106–107


Refusal of treatment … 51

Remoteness of damage see Legal causation

Res ipsa loquitur … 112–114

Res judicata … 28

Sine qua non test see ‘But for’ test

Skill, lack of, deemed to be negligence …

107–109

Standard of proof … 62–63

Surgery

general, precedent … 133–134

plastic, precedent … 135–136

Therapeutic privilege … 58

Thin skull cases … 77–78

Fault 139

Unlawfulness … 7–8, 30–58


conduct … 45–46

defences excluding … 50–58

‘diminished’ life … 43–45

and fault … 35–37, 111

intention and … 83

‘in the air’ … 39–40

knowledge of … 82–83

omission … 46–50

see also Omission

pleading … 27

Unlawfulness (cont)

practical application … 38

principles … 42–50

test for … 32–34

‘wrongful’ birth … 42–43

‘wrongful’ life … 43–45

‘Wederregtelikheidsbewussyn’

see Unlawfulness: knowledge of

‘Wrongful’ birth … 42–43

‘Wrongful’ life … 43–45

Wrongfulness see Unlawfulness

The significant increase in medical malpractice litigation, both in South

Africa and internationally, looks set to continue. As a result, medical

malpractice law is an increasingly specialised area for both medical and

legal practitioners. This timely publication, unique in its scope, is a musthave

for both medical and legal practitioners.

The purpose of this book is to set out the fundamental principles governing

the law of medical malpractice in clear and understandable terms, so that

those principles can be applied in daily practice.

The intersection of the fields of medicine and the law produces formidable

challenges. For the lawyer, the applicable legal principles and issues are

as intellectually and professionally demanding as encountered in any field

of the law. For the medical practitioner, there is at present an obstructive

uncertainty and anxiety about the legal rules which apply, and the health

professions accordingly feel under siege.

Added to this is the formative role that government and civil society play

in considering and assimilating into our legal system profound policy

considerations affecting our most intimate interests. This book addresses

these issue clearly and comprehensively.

Ian Dutton

has practised both as an attorney and as an advocate for over twenty years,

and has had a career-long professional interest and expertise in medical law.

He is the chairperson of the KZN branch of the South African Medico Legal

Society and is a member of the World Association of Medical Lawyers, the

Royal Society of Medicine and the American College of Legal Medicine; he

is currently completing an LLM in Medical Law and Ethics at the University

of Edinburgh.

ISBN 978-1-920025-95-3

Dutton - Medical Malpractice in SA

Create successful ePaper yourself

Delete template?

Save as template?