Dutton - Medical Malpractice in SA

Unlawfulness (Wrongfulness) 49
alia such control, a legal duty rested on the defendant to take steps to prevent
damage resulting from the omission to exercise proper control. The facts and
circumstances of the particular situation are decisive in determining whether
the defendant was under a legal duty to take steps to prevent damage. 115 If a legal
duty exists, injury resulting from the omission to control the dangerous situation
is prima facie unlawful. 116
4.14.5 Rules of law
In certain instances, the law (either common law or statute) places an obligation
on a person to perform certain acts. For example, the courts have recognised a
duty on the state to supply prisoners with medical treatment. 117 A statutory provision
can by implication create a legal duty to act, or it can justify conclusions that
a common-law legal duty exists. 118 Interpretation of statutes plays an important
role. A flexible approach is followed; the question being whether it is equitable
and reasonable to award the plaintiff a claim for damages. Statutory provisions
are of relevance in determining whether governmental bodies and state institutions
are under a legal duty to prevent damage. 119 Statutory provisions on their
own are usually considered in connection with other factors to determine the
unlawfulness or otherwise of an omission. 120 Constitutionally entrenched rights
are strongly indicative of a legal duty upon the state to take positive reasonable
steps to protect the rights. 121
4.14.6 A special relationship between the parties
The existence of a special relationship between the parties may be an indication
that one party had a legal duty towards the other to prevent harm. 122 The doctor/
patient relationship is regarded as a special relationship indicating the potential
existence of such a duty. 123 In the vast majority of cases, the answer to the question
of whether the doctor has a duty to act is therefore disarmingly simple: there is a
duty on the practitioner to act precisely because he or she is the patient’s doctor. 124
115
Administrateur, Transvaal v Van der Merwe 1994 (4) SA 347 (A) 360.
116
Neethling et al Law of Delict 6 ed (LexisNexis 2010) at 64; Seema v Lid van die Uitvoerende Raad
vir Gesondheid, Gauteng 2002 (1) SA 771 (T).
117
Minister van Veiligheid & Sekuriteit v Geldenhuys 2004 (1) SA 515 (SCA) at 529); Moses v Minister
of Safety and Security 2000 (3) SA 106 (C) at 114; Minister of Police v Skosana 1977 (1) SA 31 (A)
at 40.
118
Olitzki Property Holdings v State Tender Board and another 2001 (3) SA 1247 (SCA) at 1257.
119
Cape Town Municipality v Bakkerud 2000 (3) SA 1049 (SCA).
120
Ibid.
121
Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies
Intervening) 2001 (4) SA 938 (CC) at [44]; Minister of Safety and Security v Van Duivenboden 2002
(6) SA 431 (SCA) at [20]; SEEMA v Lid van die Uitvoerende Raad vir Gesondheid, Gauteng 2002 (1)
SA 771 (T).
122
Cathkin Park Hotel v JD Makesch Architects 1993 (2) SA 98 (W) at 100.
123
Van Wyk v Lewis 1924 AD 438 at 455–456. See, however, Stewart and Another v Botha and
Another 2008 (6) SA 310 (SCA) for an example of where the existence of a doctor/patient relationship
did not give rise to a legal duty to act positively.
124
Van Wyk v Lewis 1924 AD 438.