Dutton - Medical Malpractice in SA

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Medical Malpractice in South African Law
PRACTICAL ASPECTS OF THE CONCEPT OF THE ‘CAUSE OF ACTION’
3.22 Relevance of the concept of the cause of action
The principles governing the cause of action are of particular relevance to, inter
alia, prescription, exceptions, jurisdiction and res judicata. 98
3.23 Prescription 99
In regard to prescription of claims, if a cause of action for delictual damages has
accrued and the prescriptive period has run, the plaintiff’s right of action has
prescribed. The date of the existence of the facta prabanda becomes crucial to
determining the inception of the prescription period.
3.24 Prescription and the plaintiff’s knowledge of negligence
In Truter and Another v Deysel 100 the plaintiff instituted action against the defendants
for damages for personal injury allegedly sustained by him as a result of the
negligence of the defendants in performing certain medical and surgical procedures.
The plaintiff, despite his efforts, could only secure an expert medical
opinion that the defendants were negligent more than three years after the procedure
in question had been performed. A special plea of prescription was taken.
This was upheld by the Supreme Court of Appeal, which held that a delictual debt
began running when the debt became due. A debt, in turn, became due when the
creditor acquired knowledge of the facts from which the debt arose. For the purposes
of prescription ‘cause of action’ meant every fact which it was necessary for
the plaintiff to prove in order to succeed in his claim (the facta probanda). It did
not comprise every piece of evidence which was necessary to prove those facts
(the facta probantia). The court held that an expert opinion that certain conduct
had been negligent was not itself a fact, but rather evidence. This is because, in
a delictual claim, the requirements of fault and unlawfulness are not factual
ingredients of the cause of action, but are legal conclusions to be drawn from the
facts, and the plaintiff’s cause of action was therefore complete and the debt of
the defendants became due as soon as the first known harm was sustained by the
plaintiff. The plaintiff knew the details of the operations performed on him, that
he had suffered harm, as well as that the two doctors were required to exercise
reasonable care and skill in treating him, more than three years before action was
instituted. As a result, prescription did not begin running only when the plaintiff
obtained an expert opinion that the conduct was negligent.
3.25 Prescription and amendments to pleadings
Where the plaintiff seeks by way of amendment to augment his claim for damages,
he will be precluded from doing so by prescription if the new claim is based upon
a new cause of action and the relevant prescriptive period has run, but not if it was
98
Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A).
99
See, generally, the Prescription Act, 68 of 1969 and the Institution of Legal Proceedings
Against Certain Organs of State Act, 40 of 2002.
100
2006 (4) SA 168 (SCA).