Dutton - Medical Malpractice in SA

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Medical Malpractice in South African Law
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.