Dutton - Medical Malpractice in SA

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.