Dutton - Medical Malpractice in SA

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Medical Malpractice in South African Law
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.