Dutton - Medical Malpractice in SA

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Medical Malpractice in South African Law
Matrix Vehicle Tracking v Advertising Standards Authority SA 13 gave the following
example of conduct which would not be regarded as unlawful for reasons of
public policy, although harm would be negligently caused:
‘[T]here is obviously a duty — even a legal duty — on a judicial officer to adjudicate
cases correctly and not to err negligently. That does not mean that a judicial officer
who fails in the duty, because of negligence, acted wrongfully. Put in direct terms: can
it be unlawful, in the sense that the wronged party is entitled to monetary compensation,
for an incorrect judgment given negligently by a judicial officer, whether in
exercising a discretion or making a value judgment, assessing the facts or in finding,
interpreting or applying the appropriate legal principle? Public or legal policy considerations
require that there should be no liability …’ 14
It is therefore apparent that there are circumstances in which the courts are not
prepared to impose delictual liability, notwithstanding a negligent or intentional
act which caused harm to another person. This notion is the very essence and
raison d’être of the element of unlawfulness. The concept of unlawfulness demarcates
the limits of the consequences of conduct which the law will regard as
unlawful, whether or not the conduct in question is negligent or intentional, and
the importance of appreciating that there are separate inquiries into unlawfulness
and negligence, each fulfilling a separate function and employing different
tests, must be emphasised.
4.3 The test for unlawfulness
The existence of a general test for unlawfulness has been repeatedly recognised
by our courts. The classic formulation, dealing specifically with unlawfulness in
the context of omissions but establishing the general approach, was set out in
Minister van Polisie v Ewels: 15
‘Our law has developed to the stage where an omission is regarded as unlawful conduct
when the circumstances of the case are of such a nature that the omission not only
incites moral indignation but also that the legal convictions of the community demand
that the omission ought to be regarded as unlawful and that the damage suffered ought
to be made good by the person who neglected to do a positive act. In order to determine
whether there is unlawfulness the question, in a given case of an omission, is thus not
whether there was the usual “negligence” of the bonus paterfamilias but whether, regard
being had to all the facts, there was a duty in law to act reasonably.’ 16
They are both measures of control. They both serve as a “longstop” where most right-minded
people, including judges, will regard the imposition of liability in a particular case as untenable,
despite the presence of all other elements of delictual liability’; see also e g Country Cloud
Trading CC v MEC, Department of Infrastructure Development 2014 (2) SA 214 (SCA) at [18] and
[19].
13
2006 (1) SA 461 (SCA).
14
At 469.
15
1975 (3) SA 590 (A) at 597.
16
In translation, taken from the headnote. The original passage reads: ‘Dit skyn of dié stadium
van ontwikkeling bereik is waarin ’n late as onregmatige gedrag beskou word ook wanneer
die omstandighede van die geval van so ’n aard is dat die late nie alleen morele verontwaardiging
ontlok nie maar ook dat die regsoortuiging van die gemeenskap verlang dat die late as