Dutton - Medical Malpractice in SA

36
Medical Malpractice in South African Law
the Appellate Division and the Supreme Court of Appeal have emphasised that
unlawfulness as a requirement of the modern Aquilian action is distinct from
the requirement of fault, and that the enquiry into the existence of the one is
discrete from the enquiry into the existence of the other. 35 Nonetheless, the law
of delict has been bedevilled by confused thinking in this regard, and great care
must be taken not to conflate the notions of unlawfulness and negligence. The
Supreme Court of Appeal has in recent years sought to eliminate this confusion
by restating the principles to be applied, in decisions such as Sea Harvest
Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty) Ltd 36 and Minister of Safety
and Security v van Duivenboden. 37
When considering the distinction between the elements of fault and unlawfulness,
a clear understanding of the following concepts is required: 38
1. The ‘general criterion of reasonableness’, which has on occasion been held to
be the criterion for determination of unlawfulness, must not be confused with
the enquiry into the reasonableness of the defendant’s conduct, which is part
of the test for negligence. 39
2. The English-law concept of the ‘duty of care’ (which straddles concepts which
in our law are assessed in terms of both unlawfulness and negligence) is fundamentally
different to our notion of unlawfulness (which is a policy-based
assessment of the legal convictions of the community); 40 and
3. Potentially misleading formulations of the concept of unlawfulness appear in
our case law. These have been described as ‘inaccurate formulations of the test
involved’ 41 and the following criticism has been levelled at them:
‘So, for example, in one case the following was said: “An omission is wrongful if the
defendant is under a legal duty to act positively to prevent the harm suffered by the
plaintiff. The test is one of reasonableness. A defendant is under a legal duty to act
positively to prevent harm to the plaintiff if it is reasonable to expect of the defendant
to have taken positive measures to prevent the harm.”[ 42 ] That, with respect, is not the
test for wrongfulness. With regard to wrongfulness, the concept of a “legal duty” has
nothing to do with the reasonableness of the defendant’s conduct. As was explained
in Minister of Safety and Security v Van‐ Duivenboden, the enquiry under the rubric of
although foreseeability of damage may be a factor in establishing whether or not a particular
act was wrongful.’; Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Rieck 2007 (2) SA 118 (SCA)
at [9] to [10].
35
See, e g: Sea Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty) Ltd 2000 (1) SA 827
(SCA) at [19].
36
2000 (1) SA 827 (SCA).
37
2002 (6) SA 431 (SCA).
38
See F D J Brand ‘Reflections on wrongfulness in the law of delict’, 2007 SALJ 76 at [9] for
a general discussion of the position, and see esp his comment and reasons therefor that
‘Unfortunately, some confusion has crept in, even in some judgments of the SCA, between
the elements of negligence and wrongfulness.’
39
This is dealt with at para 4.6 below.
40
This is dealt with at para 4.3 above.
41
F D J Brand ‘Reflections on wrongfulness in the law of delict’, 2007 SALJ 76 at [9].
42
Van Eeden v Minister of Safety and Security 2003 (1) SA 389 (SCA) at [9].