Dutton - Medical Malpractice in SA

Fault 97
be negligent. Broadly speaking, however, particular regard is often paid to the
nature and extent of the risk, the seriousness of the harm should it materialise,
the relative importance of the wrongdoer’s conduct and the cost and difficulty of
taking precautionary measures. The reasonable person may not perceive a need
to take steps to guard against the occurrence of harm for a number of reasons.
The risk of harm occurring may have been too slight, or the possible harm which
resulted may not have been serious enough, to have warranted preventative steps
being taken. The cost or difficulty of the preventative steps may also lead to them
being unreasonable in the circumstances. Similarly, the conduct in question may
also outweigh the prudence of avoiding or reducing harm.
Where the plaintiff alleges that a reasonable person in the position of the
defendant would have realised that harm may still have occurred, and would
have taken steps to prevent it, the question in this regard is whether the plaintiff,
on whom the onus rests, has proved that there were further steps which the
defendant could and should reasonably have taken. The plaintiff must ensure
that this issue is properly canvassed in order to discharge the onus. Failure to
do so will result in absolution being granted — as in fact happened in Kruger v
Coetzee. In medical malpractice cases this will often involve leading expert evidence
on what further medical procedures or steps could and should have been
taken in the circumstances.
6.21 Negligence judged in the light of surrounding circumstances
The standard against which the conduct in question is measured is commonly
expressed as being that of the reasonable person in the particular circumstances
of the case. There is one objective, abstract criterion of reasonableness, and that
is the court’s judgment of what is reasonable, and no hard and fast rule can be
laid down. 101 In Van Wyk v Lewis, 102 in relation to the negligence of a surgeon, the
court said:
‘We cannot determine in the abstract whether a surgeon has or has not exhibited reasonable
skill and care. We must place ourselves as nearly as possible in the exact position
in which the surgeon found himself when he conducted the particular operation
and we must then determine from all the circumstances whether he acted with reasonable
care or negligently. Did he act as an average surgeon placed in the same circumstances
would have acted, or did he manifestly fall short of the skill, care and judgment
of the average surgeon in the same circumstances? If he fell short, he was negligent.’
6.22 Examples of the application of the general principles of negligence in
medical cases
The following cases illustrate the application of the general principles discussed
above in the medical malpractice context.
101
Cape Town Municipality v Butters 1996 (1) SA 473 (C) at 482.
102
1924 AD 438 at 461.