Dutton - Medical Malpractice in SA

18
Medical Malpractice in South African Law
of patrimonial loss; non-patrimonial loss such as pain and suffering, loss of the
amenities of life and the like cannot be claimed in this action. 42
The scope of the remedy was originally restricted to physical injury, and was
later expanded to encompass physical damage to property. 43 The remedy has long
since shed these restrictions, and it is now quite clear that damages for pure economic
loss may be claimed. 44 However, this notional availability of relief for pure
economic loss should not be taken to mean that such loss stands on the same
footing as loss resulting from physical injury or damage to property; the courts
are for policy reasons reluctant to extend the claim for pure economic loss — our
courts adopt a conservative approach and do not extend the scope of the Aquilian
action unless there are cogent policy factors favouring such an extension. 45
The Courts occasionally refer to ‘the extended Aquilian action’, by which they
include the solatium awarded for pain and suffering, loss of amenities of life and
the like. This is inaccurate, as it is now settled that the action for pain and suffering
is sui generis and does not fall under the mantle of the Aquilian action. 46
Relief in terms of the Aquilian action and the action for pain and suffering are
however commonly and appropriately sought in the same action. 47
THE ACTIO INIURIARUM
3.11 Definition
The actio iniuriarum is the general remedy for injury to rights of personality (iniuria),
48 being a person’s rights to bodily integrity (corpus), 49 reputation (fama) 50 and
dignity. 51
42
Hoffa v SA Mutual Fire and General Insurance Co Ltd 1965 (2) SA 944 (C) at 952.
43
McKerron The Law of Delict 7 ed (Juta 1971) at 6.
44
See e g Country Cloud Trading CC v MEC, Department of Infrastructure Development 2014 (2) SA
214 (SCA); Minister of Safety and Security v Scott and Another 2014 (6) SA 1 (SCA).
45
Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 (1) SA 475 (A) at 504;
Country Cloud Trading CC v MEC, Department of Infrastructure Development 2014 (2) SA 214
(SCA).
46
Hoffa v SA Mutual Fire and General Insurance Co Ltd 1965 (2) SA 944 (C) at 952.
47
Whittaker v Roos and Bateman 1912 AD 92; JJ Gauntlett The Quantum of Damages in Bodily and
Fatal Injuries Cases, Volume 1 at 1.
48
Minister of Justice v Hofmeyr 1993 (3) SA 131 (A); 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.
49
Neethling et al Law of Delict 6 ed (LexisNexis 2010) at 14.
50
Neethling et al Law of Delict 6 ed (LexisNexis 2010) at 14.
51
Although somewhat controversial, it is submitted that dignitas may for present purposes be
taken to be a collective term for all rights of personality, with the exception of corpus and
fama. See, generally: Neethling et al Law of Delict 6 ed (LexisNexis 2010) at 15; and for a
searching synopsis of the meaning of ‘dignity’ in our law: Woolman & Bishop Constitutional
Law of South Africa 2 ed Revision Service 5 (Juta 2015) at ch 36 and esp at para 36.2.