Dutton - Medical Malpractice in SA

4.8 Unlawfulness ‘in the air’
Unlawfulness (Wrongfulness) 39
Unlawfulness is founded not on the conduct itself, but on the consequences of
the conduct. 56 In Premier, Western Cape v Faircape Property Developers (Pty) Ltd 57
the Court stated ‘for an act or an omission to be actionable, it must constitute an
infringement of a legal interest. Just as there cannot be negligence in the air, so,
too, there cannot be wrongfulness (the breach of a legal duty) in the air: “it is as
well to remember that conduct which is lawful to one person may be unlawful
towards another”.’ 58
Conduct may therefore be described as delictually unlawful only if it has as
its consequence the factual infringement of an individual interest. As Van Reenen
J stated in Thomas v BMW South Africa (Pty) Ltd: 59 ‘There can be no delict in the
absence of a wrongful act or omission on the part of a wrongdoer. An act or omission
can be characterised as wrongful only if it results in damnum [damage]. Until
that happens, an act or omission constitutes no more than “negligence in the air”.
Wrongfulness is not simply an attribute of a wrongdoer’s conduct but a function
of that conduct together with its consequences in relation to a particular person.’
The manner in which the courts apply this principle is illustrated with reference
to the question of whether the unborn child enjoys rights of personhood.
In RAF v Mtati, 60 a pregnant woman had sustained injuries as a result of the
negligent driving of a motor vehicle. Five months later a child was born with
brain injuries. The plaintiff claimed that the injuries were caused by the negligent
driving of the motor vehicle. The defendant entered a special plea contending
that a foetus in utero could not be regarded as a person (a legal subject)
and that the driver of the motor vehicle could therefore not have acted unlawfully
towards the unborn child when he caused the accident. The issue before the
court was whether our law recognises an actionable right for pre-natal injuries to
a foetus in utero where a child is subsequently born alive. The Supreme Court of
Appeal recognised the right to claim for pre-natal injuries on policy grounds. The
reasoning of the Court 61 was that it would be intolerable if our law did not grant
56
Thomas v BMW South Africa (Pty) Ltd 1996 (2) SA 106 (C) at 120; Mukheiber v Raath and Another
1999 (3) SA 1065 (SCA) at 1075; Overseas Tankship (UK) Limited v Morts Dick and Engineering
Company Limited [1961] 1 ALL ER 404 (PC); Neethling et al Law of Delict 6 ed (LexisNexis
2010) 34 fn 9.
57
2003 (6) SA 13 (SCA).
58
At [41], quoting Harms JA in SM Goldstein and Company (Pty) Ltd v Cathkin Park Hotel (Pty) Ltd
and Another 2000 (4) SA 1019 (SCA) at 1024 F–G; Overseas Tankship (UK) Limited v Morts Dick
and Engineering Company Limited [1961] 1 ALL ER 404 (PC) (Wagon Mound No 1) at 415A,
where Viscount Simonds stated: ‘But there can be no liability until the damage has been
done. It is not the act but the consequences on which tortious liability is founded. Just as (as
it has been said) that there is no such thing as negligence in the air, so there is no such thing
as liability in the air. Liability is founded not upon the act performed by the defendant but
upon the consequences of that act.’
59
1996 (2) SA 106 (C) at 120 B–C.
60
2005 (6) SA 215 (SCA). See also the discussion of this case in H v Fetal Assessment Centre 2014
ZACC 34 at [50].
61
At [24].