Dutton - Medical Malpractice in SA

Unlawfulness (Wrongfulness) 41
4.9 Liability for misstatements 70
In Mukheiber v Raath and Another 71 the court dealt with an action founded in
delict on a negligent misstatement in the context of a claim for ‘wrongful conception’.
The plaintiffs, a husband and wife, brought an action against a gynaecologist
who had negligently misrepresented to them that he had sterilised the wife
when in fact no sterilisation was done at all. Relying on the misrepresentation,
the couple stopped using contraception, as a result of which a healthy baby was
conceived and born. The plaintiffs claimed compensation from the defendant
under two heads of pure economic loss: for the costs of confinement of the wife
and for the maintenance of the child until it became self-supporting. The claim
was based on a negligent misrepresentation which caused pure economic loss (as
opposed to injury to person or property) and was not founded in contract. 72 The
Court considered the scope and application of such an action and whether relief
should be granted on the facts of the case. The Supreme Court of Appeal upheld
the claim for both confinement and maintenance costs, but limited liability for
the maintenance of the child to that which rested on the parents to maintain the
child according to their means and station in life, and lapsed when the child was
able to support itself.
Our courts recognise the existence of a cause of action for negligent misstatements
where, in all the circumstances of the case, it can be said that there is a
legal duty not to make the misstatement. 73 Factors which influence the courts
70
A related consideration is the doctor’s duty to advise. The principles relating to this duty
appear, inter alia, from Friedman v Glicksman 1996 (1) SA 1134 (W) and McDonald v Wroe
[2006] 3 All SA 565 (C).
71
1999 (3) SA 1065 (SCA).
72
Our law recognises claims of this nature as an instance of the application of the extended
Aquilian action: Administrateur, Natal v Trust Bank van Afrika Bpk 1979 (3) SA 824 (A).
73
The South African legal position relating to the unlawfulness of a misrepresentation was
encapsulated by Corbett CJ in an article entitled ‘Aspects of the Role of Policy in the
Evaluation of our Common Law’ (1987) 104 SALJ 52 at 59: ‘Thus the key to liability is the
existence of a legal duty on the part of the defendant, that is the person making the statement,
not to make a misstatement to the plaintiff, that is the person claiming to have been
damnified by the statement. For without this legal duty there can be no unlawfulness. And
unlawfulness is a sine qua non of Aquilian liability. The legal duty is, however, not an absolute
one. It simply requires the defendant to take reasonable care to ensure the correctness of his
statement before making it. This requirement of a legal duty, together with the nature of the
misstatement and its interpretation, and the question of causation, enables the courts to keep
within bounds the potentially unruly concept of liability for economic loss caused by a negligent
misstatement. In deciding to give its imprimatur to this cause of action, the Appellate
Division unquestionably took a policy decision of paramount importance in the law of delict.
Moreover, as in the case of liability for an omission, the general test adopted for determining
wrongfulness or unlawfulness poses the question whether in all the circumstances of the
case there was a legal duty to act reasonably. The application of this test in each individual
case, where there is no clear precedent, entails the making of a further policy decision, or
value judgment. Here the law must keep in step with the attitudes of society and consider
whether on the particular facts society would require the imposition of liability. Factors
which would no doubt influence the Court in coming to a conclusion would be whether the
extent of the potential loss incurred is finite and identifiable with a particular claimant or
claimants; whether the misstatement relates to a field of knowledge in which the defendant