Dutton - Medical Malpractice in SA

96
Medical Malpractice in South African Law
to attempt to define the courts’ approach too closely in this regard. Whether a
reasonable person in the position of the defendant would take any guarding steps
at all and, if so, what steps would be reasonable, must always depend upon the
particular circumstances of each case. No hard and fast basis can be laid down.
Hence the futility, in general, of seeking guidance from the facts and results of
other cases. 93
The courts approach the question of whether harm was reasonably foreseeable
on a robust, common-sense basis. As Viscount Simonds said, ‘After the event,
even a fool is wise. But it is not the hindsight of a fool; it is the foresight of the
reasonable man which alone can determine responsibility.’ 94 And in S v Bochris
Investments (Pty) Ltd and Another 95 Nicholas AJA said:
‘In considering this question, one must guard against what Williamson JA called the
insidious subconscious influence of ex post facto knowledge (in S v Mini 1963 (3) SA
188 (A) at 196E–F). Negligence is not established by showing merely that the occurrence
happened (unless the case is one where res ipsa loquitur), or by showing after it
happened how it could have been prevented. The diligens paterfamilias does not have
prophetic foresight …’
6.20 Preventability 96
The enquiry into the second leg of the test set out in Kruger v Coetzee 97 is into
the preventability of the harm. The preventability enquiry is sometimes overlooked
in practice. 98 This is particularly so where the defendant establishes that
he has taken some steps to prevent harm (as occurred in Kruger v Coetzee). The
preventability enquiry addresses the question of whether the reasonable person
would have taken steps to prevent damage from occurring, and what those steps
would have been. 99 The mere fact that foreseeable damage materialises does not
necessarily mean that insufficient steps were taken to prevent the damage. 100
Whether a person is required to act at all to avoid reasonably foreseeable harm
and, if so, what that person is required to do, will depend on what can reasonably
be expected in the circumstances of the particular case. Should the resulting
harm be reasonably foreseeable, but the reasonable person would have regarded
it as unnecessary or undesirable to prevent its occurrence, the conduct will not
93
Ngubane v South African Transport Services 1991 (1) SA 756 (A) at 776; Kruger v Coetzee 1966 (2)
SA 428 (A) at 430.
94
Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound) 1961 AC 388
(PC) ([1961] 1 All ER 404 at 424 (AC) and at 414G–H (in All ER).
95
1988 (1) SA 861 (A) at 866–867.
96
Van der Walt and Midgley Principles of Delict 3 ed (Durban, Lexis Nexis, 2005) at 145.
97
1966 (2) SA 428 (A).
98
Ngubane v South African Transport Services 1991 (1) SA 756 (A) at 776. The facts of Kruger v
Coetzee 1966 (2) SA 428 (A) supra serve as a salutary warning to be vigilant in this regard.
99
Ngubane v South African Transport Services 1991 (1) SA 756 (A); Avonmore Supermarket CC v
Venter 2014 (5) SA 399 (SCA).
100
Kruger v Carlton Paper of SA Ltd 2002 (2) SA 335 (SCA); Minister of Safety and Security v Van
Duivenboden 2002 (6) SA 431 (SCA) at 448. (See, in this regard, the concept of error of judgment
or medical misadventure at para 6.28 below).