Dutton - Medical Malpractice in SA

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).