Dutton - Medical Malpractice in SA

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Medical Malpractice in South African Law
a variety of considerations, including notions of reasonableness where appropriate.
It is inherent in the modern South African legal system’s emphasis on the
role of legal values that the courts should be given a wide mandate in conducting
an assessment of appropriate legal policy: the considerations referred to in the
oft-quoted passage in Fleming 50 of ‘[t]he hand of history, our ideas of morals and
justice, the convenience of administering the rule and social ideas as to where
the loss should fall’ are by no means dependent upon the touchstone of reasonableness.
Should the notion of reasonableness not then be left in relative peace to
play its proper role in the determination of negligence?
4.7 Practical application of the element of unlawfulness
In the overwhelming majority of medical malpractice cases, the issue of unlawfulness
is uncontentious — and very often not even expressly dealt with. 51 There
are two reasons for this. Firstly, a rebuttable presumption of unlawfulness frequently
operates due to the principle that it is prima facie unlawful to cause physical
injury to another by positive conduct 52 — and, in practice, that presumption
is often not challenged. Secondly, the defences raised in these matters, if established,
serve as justifications for prima facie unlawful conduct, and conclusively
eliminate the unlawfulness of the conduct. 53
That said, it should not be understood that the element of unlawfulness is
unimportant in medical malpractice. In fact, the converse is true. The nature of
medical malpractice cases is such that an inquiry into omissions is often called
for. As conduct in the form of an omission is not prima facie unlawful, these
cases intrinsically involve an examination of the unlawfulness element, even
where this is not expressly dealt with. Moreover, due to the dynamic and rapidly
developing nature of modern medicine, combined with the intrinsically personal
sphere in which this branch of the law operates, the field is ripe for the exercise
of a policy-based judicial discretion where there is no established principle determining
unlawfulness. 54 A number of seminal cases have already grappled with
this issue, and it can only be expected that more instances will arise in future. 55
50
‘The Law of Torts 4 ed at 136 (referred to at footnote 22 above).
51
Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 (1) SA 475 (A) at 497.
52
See, e g: Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 (1) SA 475
(A) at 497 B–C; Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) at
441 E–G. (However, not all infringements are prima facie unlawful. In respect of omissions,
infringements of dignity and invasions of privacy — all relevant to the field of medical malpractice
— prima facie unlawfulness must be determined using the criterion of the legal convictions
of the community, see Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty)
Ltd 2006 (3) SA 138 (SCA) at 144. And see, generally: Brand ‘Reflections on Wrongfulness in
the Law of Delict’ 2007 SALJ 76 at 78–79).
53
See e g Van der Walt & Midgley The Principles of Delict 3 ed, para 85.
54
See, generally, Anton Fagan ‘Rethinking Wrongfulness in the Law of Delict’ 2005 SALJ 90 at
90.
55
See e g Clarke v Hurst NO and Others 1992 (4) SA 630 (D); Administrator, Natal v Edouard 1990 (3)
SA 581 (A); Castell v De Greef 1993 (3) SA 501 (C) at 509.