Dutton - Medical Malpractice in SA

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Medical Malpractice in South African Law
the deceased had been removed in a police van and held in custody. The next
morning, the deceased had complained of pain in his abdomen and had asked a
policeman to take him to a doctor. After a delay of about two hours, the deceased
had been taken to the district surgeon, who had immediately examined him and
instructed a constable to urgently arrange for the deceased to be taken to hospital.
There was then a further delay of about two hours. At the hospital the deceased
was found to be in a very serious condition. A laparotomy was performed. The
viscus was found to be ruptured with severe generalised peritonitis. Despite all
reasonable care and skill by the hospital, the deceased died shortly after leaving
theatre. The Court held that the constables concerned, acting within the course
of their duty and within the scope of their employment, had been negligent (a)
in not immediately summoning the district surgeon and (b) in not causing the
deceased to be taken to hospital immediately thereafter. The Court held that
the plaintiffs had established a negligent delay in providing the deceased with
medical aid and treatment. The Court also found that the plaintiffs had established,
as a matter of probability, that the deceased would have survived if the
operation had been performed earlier, as it would have been but for the negligence
of the constables.
5.2.3 The standard of proof
In applying the ‘but for’ test, the plaintiff need not establish the causal link with
certainty, but only on a balance of probabilities. 18 As was pointed out by Nugent
JA in Minister of Safety and Security v Van Duivenboden: 19
‘A plaintiff is not required to establish the causal link with certainty, but only to establish
that the wrongful conduct was probably a cause of the loss, which calls for a sensible
retrospective analysis of what would probably have occurred, based upon the
evidence and what can be expected to occur in the ordinary course of human affairs
rather than metaphysics.’
18
Blyth v van den Heever 1980 (1) SA 191 (A) at 207 A (considered below); Van Duivenboden v
Minister of Safety and Security 2002 (6) SA 431 (SCA) at para 25; Minister of Finance and Others v
Gore NO 2007 (1) SA 111 (SCA) at para 33; Neethling et al Law of Delict 6 ed (LexisNexis 2010)
at 179 fn 24.
19
2002 (6) SA 431 (SCA) at para 25; In Siman and Co (Pty) Ltd v Barclays National Bank Limited
1984 (2) SA 888 (A) at 917–918, Corbett JA reasserted the common sense standard: ‘Finally, as
in other problems relating to causation in delict, in applying the but-for test the Court should
not overlook the importance of applying common sense standards to the facts of the case.’