Dutton - Medical Malpractice in SA

Fault 107
experience in a particular case and proceeds to treat the patient may be negligent,
and the problem of the novice in that the issue of the negligence of the new
practitioner, who lacks certain skill and experience, is influenced by whether he
or she should have referred the patient in the particular circumstances of the
case. 144
6.27 Imperitia culpae adnumeratur
The literal meaning of this maxim is that ignorance or lack of skill is deemed
to be negligence. 145 Boberg 146 criticises the maxim as being misleading because
‘lack of skill can never in itself amount to negligence, for no one can be skilful at
everything.’ 147 However, the true meaning of the principle emerges from the following
statement by Voet: ‘The reasonable person has no special skills and lack of
skill or knowledge is not per se negligence. It is, however, negligent to engage voluntarily
in any potentially dangerous activity unless one has the skill and knowledge
usually associated with the proper discharge of the duties connected with
such an activity.’ 148 Thus where expert skill, knowledge or experience is required
to perform an activity and the person undertaking the activity lacks these qualities
and knows, or should reasonably know, that this is the case, then such person
will be held to the standard of the reasonable person possessing those qualities.
Therefore, the medical practitioner who engages in an undertaking that requires
certain training, knowledge, experience, skill, competence or diligence, knowing
that he or she lacks such qualities, will be judged according to the standard of the
reasonable practitioner who does possess those qualities.
In Coppen v Impey 149 the plaintiff sought to recover damages for an injury to
her hand, which she alleged was due to an x-ray burn caused by the negligence
or want of skill of the defendant, a medical practitioner. The Court held that,
while the medical practitioner does not undertake to perform a cure, or to treat
his patient with the utmost skill and competence, the practitioner will be liable
for negligence or unskillfulness in treatment because, ‘by holding himself out as
144
See para 6.27 below.
145
Voet 9 2 23; Neethling et al Law of Delict 6 ed (LexisNexis 2010) at 140. The starting point
for an understanding of this principle remains the statement by Voet that ‘Lack of skill or
strength in art or craft are counted as negligence.’ Lack of skill in an art on the part of the
one who puts that art up for sale or professes it is accounted as negligence. So is it with lack
of strength, since no one ought to pursue that in which he either understands or ought to
understand that his lack of strength or skill will be dangerous to another. It follows that
doctors, sellers of drugs and midwives who operate unskilfully, prescribe medicines to drink
or inject them by clyster or otherwise administer them wrongly, or give poison instead of
medicine are also held liable under this law. Even as the coming of the end of life ought not
to be laid at a doctor’s door, so too it is not right that under the cloak of human frailty the
wrongdoing of one who cheats men in danger by empty bragging about his practice of medicine
should bring no real consequences.’ Voet, Book IX, Title 2 The Aquilian Law s 23.
146
Boberg The Law of Delict vol 1 Aquilian Liability 2 imp (Juta 1984) at 346–347.
147
Boberg The Law of Delict vol 1 Aquilian Liability 2 imp (Juta 1984) at 346–347.
148
Voet, Book IX, Title 2 The Aquilian Law s 23.
149
1916 CPD 309.