Dutton - Medical Malpractice in SA

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Medical Malpractice in South African Law
remedy. 25 The two most important Roman delictual remedies surviving in
modern law are the damnum iniuria datum (now claimable through the Aquilian
action, which affords a general remedy for patrimonial loss arising from wrongs
to interests of substance 26 ) and the iniuria (now claimable through the actio iniuriarum,
being the general remedy for wrongs to interests of personality 27 ). 28
Onto this structure, and apparently having their origins in Germanic and local
Netherlandic custom, the Roman-Dutch jurists grafted the action for pain and
suffering and the anomalous dependants’ action 29 (the latter remedy, due to its
peculiar nature, is usually treated separately: the same approach is taken in this
work 30 ).
3.7 The essential elements of the South African law of delict
The general essential elements of a delict are: unlawful conduct (whether by positive
act or omission), which is intentional or negligent (the fault element), and
which causes damage to person or property, or injury to personality. 31 The particular
application of the various general remedies is subject to certain specific
principles which regulate the application of the essential elements of the remedy.
Moreover, certain forms of the general remedies have developed in our law, with
resultant adaptation of the general principles. 32 It is convenient to deal with the
following common forms of medical malpractice claims: emotional shock, invasion
of privacy, misdiagnosis cases, medical malpractice in relation to fields of
specialisation, medical malpractice in the context of injuries or death caused by
therapeutic agents and retained objects; all of which are considered in this work. It
is, however, important to bear in mind that these specific forms of delictual action
fall within the framework of the general principles governing the law of delict. 33
The same action can be brought to claim various forms of loss suffered
through the same unlawful act. 34 South African law tends to avoid the casuistic
approach of the Anglo-American and Roman systems, in terms of which the
25
McKerron The Law of Delict 7 ed (Juta 1971) at 6; Neethling et al Law of Delict 6 ed (LexisNexis
2010) at 5;.
26
By which is meant physical injury to the person or property of the plaintiff in the wide sense
of including any interference with the plaintiff’s person or with a corporeal thing in which
she has a legally protected interest.
27
McKerron The Law of Delict 7 ed (Juta 1971) at 6.
28
McKerron The Law of Delict 7 ed (Juta 1971) at 10; Boberg The Law of Delict vol 1 Aquilian
Liability 2 imp (Juta 1984) at 18.
29
Voet Commentarius Book IX Title 2 The Aquilian Law 9 2 11; Bester v Commercial Union Vers ekerings
maatskappy van SA Bpk 1973 (1) SA 769 (A).
30
As Van den Heever stated in Millward v Glaser 1949 (4) SA 931 (A) at 941: ‘By reason of its
history and its place in our legal system the action for compensation for the loss of a breadwinner
is a peculiar remedy and it would be dangerous to apply its rules to Aquilian actions
in general.’
31
See, generally, Neethling et al Law of Delict 6 ed (LexisNexis 2010) at 4; J. Burchell Principles
of Delict (Juta 2007) at 10; Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A) at 838–839.
32
Neethling et al Law of Delict 6 ed (LexisNexis 2010) at 275.
33
Neethling et al Law of Delict 6 ed (LexisNexis 2010) at 5.
34
See paras 3.5 and 3.29 above.