Dutton - Medical Malpractice in SA

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Medical Malpractice in South African Law
3.27 The ‘once-and-for-all’ rule
Expressed in relation to delictual claims, the rule is to the effect that, in general,
a plaintiff must claim in one action all damages, both already sustained and
prospective, flowing from one cause of action. 109 Its purpose is to prevent a multiplicity
of actions based upon a single cause of action and to ensure that there is
an end to litigation. 110
3.28 Res judicata
Closely allied to the “once and for all” rule is the principle of res judicata which
establishes that, where a final judgment has been given in a matter by a competent
court, then subsequent litigation between the same parties, or their privies,
in regard to the same subject-matter and based upon the same cause of action,
is not permissible. The object of this principle is to prevent the repetition of
lawsuits, the harassment of a defendant by a multiplicity of actions and the possibility
of conflicting decisions. 111
3.29 Pleading multiple causes of action
It is the clearly established practice to claim damages under all relevant heads
in a single action and not to bring separate actions. ‘In our practice’, said De
Villiers JA in Matthews v Young 112 as far back as 1922, ‘the necessity for bringing
two separate actions has long since disappeared and there is no objection to the
plaintiff in one and the same action now claiming, if so advised, both kinds of
redress’ — and now, by logical extension (and since Hoffa 113 ), all three causes of
action. As a result of the extension of the Aquilian action to recover compensation
for patrimonial loss sustained, the position is now that where patrimonial
loss was caused by an iniuria, both the Aquilian action and the actio iniuriarum
are available; and where the iniuria results in damage in the form of pain and suffering
and the like, all three remedies are potentially available in the same action
(and are almost invariably so claimed).
This does not however mean that where a person has suffered patrimonial
loss or pain and suffering because of an iniuria he necessarily has an election of
remedies. It is only in exceptional cases that the Aquilian action will be available
for patrimonial loss not arising out of an injury to person or property (so-called
‘pure economic loss’). Moreover, modern Aquilian relief is aimed at compensation
for loss of patrimony, and the requisite fault element is either intention or negligence.
The aim of the actio iniuriarum is satisfaction for an insult — a contumelia
109
See Cape Town Council v Jacobs 1917 AD 615 at 620; Oslo Land Co Ltd v The Union Government
1938 AD 584 at 591; Slomowitz v Vereeniging Town Council 1966 (3) SA 317 (A) at 330; Custom
Credit Corporation (Pty) Ltd v Shembe 1972 (3) SA 462 (A).
110
Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A) at 835D–E; Truter v Deysel 2006 (4) SA 168
(SCA).
111
Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A) at 835F–G.
112
1922 AD 492 at 507.
113
Hoffa v SA Mutual Fire and General Insurance Co Ltd 1965 (2) SA 944 (C).