Dutton - Medical Malpractice in SA

46
Medical Malpractice in South African Law
treats a patient and, during the course of such treatment, fails to take certain steps
which the reasonable practitioner would, in the circumstances, have taken is
performing positive conduct negligently, and the situation is not one of conduct
by omission. Negligent performance of positive conduct must be distinguished
from the case where a person’s failure is not an integral part of positive conduct.
An example of a valid claim for an omission occurred where a mental hospital
had failed to erect any proper fencing around the perimeter of the premises and
no real effort was otherwise made to guard the premises, as the result of which a
dangerous patient had escaped and raped a member of the public. 90
4.14 Unlawfulness in respect of omissions
Liability for omissions has been a source of judicial uncertainty since Roman
times. The underlying difficulty arises from the notion that, while a person
must not cause harm to another, one is generally speaking entitled in law to
mind one’s own business. Negligent conduct that causes physical damage to the
person or property of another is, as we have seen, prima facie unlawful. However,
the element of unlawfulness becomes less straightforward when dealing with
liability for negligent omissions 91 (or with pure economic loss). 92 In order for a
failure to act to be unlawful there must be a legal duty to act. 93 The failure to act
is accordingly presumed to be lawful.
What, then, is the dividing line between a legitimate and an illegitimate failure
to act? In answering this question, the courts employ the element of unlawfulness
as a means of regulating liability in the case of omissions. The courts consider
a failure to act as unlawful only where a legal duty existed on the defendant
to act positively in the circumstances. In turn, whether or not a legal duty to act
existed is a matter for judicial determination involving criteria of public or legal
policy consistent with constitutional norms. 94 As an omission is not prima facie
unlawful, more is needed — policy considerations must dictate that the plaintiff
should be entitled to be compensated by the defendant for the loss suffered. It is
then that it can be said that the legal convictions of society regard the conduct
as unlawful. In Cape Town Municipality v Bakkerud, 95 the Supreme Court of Appeal
had stated that in assessing the unlawfulness of omissions ‘… all that can be said
is that moral and ethical obligations metamorphose into legal duties when “the
legal duties of the community demand that the omission ought to be regarded
as unlawful”. When it should be adjudged that such a demand exists cannot be
the subject of a general rule; it will depend on the facts of the particular case.’
This statement is, however, too widely stated and the same court subsequently
90
SEEMA v Lid van die Uitvoerende Raad vir Gesondheid, Gauteng 2002 (1) SA 771 (T).
91
Trustees, Two Oceans Trust v Kantey and Templar 2006 (3) SA 138 (SCA) at [10].
92
Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 (1) SA 475 (A). A situation
which, for obvious reasons, rarely applies in medical malpractice cases.
93
Trustees, Two Oceans Trust v Kantey and Templar 2006 (3) SA 138 (SCA) at [10].
94
Trustees, Two Oceans Trust v Kantey and Templar 2006 (3) SA 138 (SCA) at [10].
95
2000 (3) SA 1049 (SCA) ([2000] 3 All SA 171) at 14.