Dutton - Medical Malpractice in SA

Unlawfulness (Wrongfulness) 47
clarified the position in Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising
Standards Authority SA 96 by observing that ‘stating that there are no general rules
determining wrongfulness and that it always depends on “the facts of the particular
case” is accordingly somewhat of an overstatement because there are also
some “categories fixed by the law”.’ These categories may change as public policy
considerations change, either by expansion or contraction. The decision as to
whether a particular instance of harm-causing is subject to this duty is therefore
the outcome of the exercise of judicial discretion, which sometimes crystallises
into rules. 97 The legal convictions of the community, thus interpreted, have given
rise over many years to specific factors indicating a legal duty to act positively to
prevent harm.
4.14.1 Interplay of factors
All factors which may indicate the legal convictions of the community are taken
into account in deciding whether there is a legal duty to act. 98 It is often the
case that the existence of a legal duty is due to the interaction of a number of
considerations. 99 Although there is no numerus clausus, the following factors frequently
arise in medical malpractice claims: the existence of a contract (either
between the parties or between the medical practitioner and a third party, such
as a parent); prior conduct on the part of the medical practitioner; control of a
dangerous object or person; rules of law; and a special relationship between the
parties. These categories are by no means watertight compartments and, as is
apparent from the authorities referred to, it is frequently the case that more than
one category applies to the particular facts in issue. Ultimately, the legal convictions
of the community as to whether a legal duty to act positively are assessed. 100
These factors will be considered in turn.
4.14.2 Contract
The existence of a contract between doctor and patient in itself provides a basis for
contractual relief; it also gives rise to a doctor–patient relationship, 101 and brings
the principles of the law of delict into play in the context of an omission. 102 In
the light of the majority judgment in Lillicrap, Wassenaar and Partners v Pilkington
96
2006 (1) SA 461 (SCA) at 469.
97
Ibid.
98
Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) at 444.
99
Saaiman and Others v Minister of Safety and Security and Another 2003 (3) SA 496 (O) at [9]: ‘To
determine whether a legal duty exists or not in any given circumstances entails a careful and
analytical judicial assessment of numerous factors and a delicate balancing of competing
interests of an individual claimant, on the one hand, and those of the community, on the
other.’
100
Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 (1) SA
461 (SCA) at 469.
101
Of course, a contract is not a prerequisite for a doctor–patient relationship, or for delictual
principles to come into play.
102
Van Wyk v Lewis 1924 AD 438 at 443.