Dutton - Medical Malpractice in SA

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Medical Malpractice in South African Law
Brothers (SA) (Pty) Ltd 103 it follows also that it is not the breach of the contract
which creates the delictual liability but the breach of the rights and duties that
arise from the resultant professional relationship. 104 The assumption of contractual
duties is capable of giving rise to delictual liability, and where one is dealing
with an omission (or pure economic loss), the question is whether there are considerations
of public or legal policy which require the imposition of liability for
an omission. 105 The professional medical relationship is usually governed both by
the principles of the law of contract and of delict. The professional relationship
itself would indicate a duty by the practitioner to take positive steps to prevent
harm to the patient. 106 The terms of a contract will play a role in determining
the legal convictions of the community in relation to delictual liability — and
this principle extends to non-contracting parties. 107 It should be emphasised that
delictual obligations and resultant relief are generally more extensive than those
available in contract: 108 where non-patrimonial loss in the form of pain and suffering,
the loss of the amenities of life and the like is claimed, the true cause of
action is the actio iniuriarum, and contractual relief is not available. 109
4.14.3 Prior conduct (omissio per commissionem)
A person acts prima facie unlawfully where he creates a new source of danger
by means of prior conduct and subsequently fails to eliminate that danger with
the result that harm is caused to another person. 110 A conclusion of unlawfulness
may therefore be drawn where harm results in such circumstances. 111 The
existence of prior conduct is therefore an indication of a duty to act positively
to prevent harm, but is not a prerequisite for such a duty. 112 The treatment of a
patient is generally considered to be conduct which gives rise to an obligation to
take positive steps to avoid reasonably foreseeable harm to the patient. 113
4.14.4 Control of a dangerous object or person
Control over a dangerous or potentially dangerous object or person can be a
factor in determining whether a legal duty rested on the person in control thereof
to prevent someone from being injured in the particular situation. 114 Two questions
arise: whether there was actual control, and whether, in the light of inter
103
1985 (1) SA 475 (A), esp at 499.
104
See also para 3.5 above.
105
Viv’s Tippers (Edms) Bpk v Pha Phama Security 2010 (4) SA 455 (SCA) at [8].
106
Van Wyk v Lewis 1924 AD 438.
107
Viv’s Tippers (Edms) Bpk v Pha Phama Security 2010 (4) SA 455 (SCA) at [13].
108
See para 3.5 above.
109
Administrator, Natal v Edouard 1990 (3) SA 581 (A) at 597D; Jansen van Vuuren and Another NNO
v Kruger 1993 (4) SA 842 (A) at 849.
110
Neethling et al Law of Delict 6 ed (LexisNexis 2010) at 58.
111
Minister van Polisie v Ewels 1975 (3) SA 590 (A) at 597.
112
Minister van Polisie v Ewels 1975 (3) SA 590 (A) at 597. The existence of such a duty is always
subject to the flexible nature of the unlawfulness enquiry.
113
Van Wyk v Lewis 1924 AD 438 at 455–456.
114
Van Eeden v Minister of Safety and Security 2003 (1) SA 389 (SCA) at [24].