Dutton - Medical Malpractice in SA

24
Medical Malpractice in South African Law
is awarded under the actio iniuriarum as a salve to the claimant’s wounded feelings,
87 and bear a direct relationship to the personal sufferings of the injured
party, as they are intended for his or her personal benefit. Once a person dies no
award of damages can achieve the object for which such awards are made. The
right to claim such damages therefore dies with the claimant. 88
THE DEPENDANT’S ACTION 89
3.19 Essential elements
The essential elements of the action are: 90
1. A duty of support, and a concomitant right to receive the support, established
by proving that:
(a) The deceased, while he was alive, was under a legal duty to support the
dependant and, if so, that the right deserved protection for the purposes of
the dependant’s action. 91
(b) The dependant is in need of support.
(c) The breadwinner was capable of providing the support.
(d) The dependant had a right to the support (that is the right was capable of
legal protection against third parties).
(e) The right to receive support is assessed by application of the ‘legal convictions
of the community’ test for unlawfulness. 92
2. Unlawful conduct by the defendant which caused the death of the deceased. 93
3. Culpa (or dolus) on the part of the defendant in causing the death of the
deceased.
4. Damnum (harm), in the sense of a real deprivation of anticipated support.
1990 (3) SA 581 (A); Guardian National Insurance Co Ltd v Van Gool NO 1992 (4) SA 61 (A); Hoffa
v SA Mutual Fire and General Insurance Co Ltd 1965 (2) SA 944 (C).
87
Hoffa v SA Mutual Fire and General Insurance Co Ltd 1965 (2) SA 944 (C) at 955.
88
Hoffa v SA Mutual Fire and General Insurance Co Ltd 1965 (2) SA 944 (C) at 955.
89
See, generally, Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A) at 838H–839C; Santam
Bpk v Henery 1999 (3) SA 421 (SCA) at 430; Amod v Multilateral Motor Vehicle Accidents Fund
(Commissioner for Gender Equality Intervening) 1999 (4) SA 1319 (SCA); Brooks v The Minister of
Safety and Security 2009 (2) SA 94 (SCA); Minister of Safety and Security v Madyibi 2010 (2) SA
356 (SCA); see generally on loss of support: Neethling et al Law of Delict 6 ed (LexisNexis
2010) at 278 ff; Trynie Boezaart ‘Finding the perfect balance: The challenge of contemporary
private law’ in Trynie Boezaart & Piet de Kock (Eds) Vite perit, labor non moritur: Liber memorialis
(PJ Visser 2008) 153; M C Buthelezi ‘The action of dependants revisited in the light of
Brooks v The Minister of Safety and Security’, 2011 SALJ 642.
90
Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A) at 838H–839C; Santam Bpk v Henery 1999 (3)
SA 421 (SCA) at 430; Amod v Multilateral Motor Vehicle Accidents Fund (Commissioner for Gender
Equality Intervening) 1999 (4) SA 1319 (SCA).
91
Santam Bpk v Henery 1999 (3) SA 421 (SCA) at 425–426; Amod v Multilateral Motor Vehicle
Accidents Fund (Commissioner for Gender Equality Intervening) 1999 (4) SA 1319 (SCA) at [19].
92
The common law has recently been developed to extend the dependant’s action to unmarried
persons in heterosexual relationships, who have established a contractual reciprocal
duty of support: Paixão and Another v Road Accident Fund 2012 (6) SA 377 (SCA) esp paras [1]
and [40] at 378E and 391E–F.
93
Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A) at 838H–839C; Brooks v The Minister of Safety
and Security 2009 (2) SA 94 (SCA) at [8].