Dutton - Medical Malpractice in SA

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
Neethling et al Law of Delict 6 ed (LexisNexis 2010) at 131.
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.