Dutton - Medical Malpractice in SA

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Medical Malpractice in South African Law
exercise of a discretion by a presiding officer or an administrative functionary. 24
The Constitutional Court seems to prefer an objective test. 25 Harms JA posited
a blend of a subjective and objective assessment. 26 Ultimately, however, it must
be kept clearly in mind that one is conducting an assessment of fact, and the
standard to be met is the balance of probabilities. That is to say, the courts assess
the causal significance of the omission in question by inserting the most likely
hypothetical conduct in the circumstances. 27
5.2.6 Examples of the application of the test in medical malpractice cases
In Blyth v Van den Heever, 28 Corbett JA dealt with the issue of factual causation
in a medical negligence claim. The plaintiff had sustained an injury to his right
radius and ulna. He ultimately lost the use of the arm. One of the issues to be
decided was whether there was a factual nexus between the allegedly negligent
conduct and the harm suffered. The court, after a detailed analysis of the medical
facts, held:
‘In determining what in fact caused the virtual destruction of the appellant’s arm, the
court must make its finding on a preponderance of probability. Certainty of diagnosis
is not necessary. If it were, then, in a field so uncertain and controversial as the one
which I have thus far endeavoured to delineate, a definitive finding would become an
impossibility. Bearing in mind that in this case appellant bears the burden of proof,
the question is whether it is more probable than not that largescale ischemia, coupled
with sepsis, caused the damage.’ 29
24
Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC); Minister of Finance v Gore 2007
(1) SA 111 (SCA); Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA).
25
Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC). At para [76] the court held
‘It may well be that in deciding whether a magistrate could or might have refused to release
Coetzee on bail an objective test must be applied and that the evidence of the magistrate who
happened to have been seized with the matter is neither relevant nor admissible. On this
approach the Court would have regard to the law as it should have been applied by a reasonable
magistrate on the facts given to him by the prosecutor. The question of causation, in the
event of the conduct of either the police or the prosecutors being unlawful, was not considered
by the High Court or the SCA. This too is a complex issue that may ultimately depend
on the facts as they emerge at the end of the case’; see also Minister of Finance v Gore 2007 (1)
SA 111 (SCA) at 125–126: ‘Determining what decision they were likely to have reached in the
exercise of their discretion, but for the fraudulent conduct of Louw and Scholtz, inevitably
requires some measure of second-guessing the administrative functionaries. Fortunately we
can take guidance from the decision of this Court in Minister of Safety and Security v Carmichele
that, in a situation such as this, the question is objective: how is a reasonable functionary
likely to have exercised that discretion?’ But see the judgment of Harms JA in Carmichele 2004
(3) SA 305 (SCA) at para [60] and the views of Neethling et al Law of Delict 6 ed (LexisNexis
2010) at 179 ff.
26
Minister of Safety and Security and Another v Carmichele 2004 (3) SA 305 (SCA) at para [60].
27
Minister of Safety and Security and Another v Carmichele 2004 (3) SA 305 (SCA) at para [60];
Minister of Finance v Gore 2007 (1) SA 111 (SCA) at 125–126.
28
1980 (1) SA 191 (A). See also Mafesa v Parity Versekeringsmaatskappy Bpk (in Likwidasie) 1968 (2)
SA 603 (O), where the court had regard to the fact that the second fracture was not reasonably
foreseeable.
29
At 207 A. See also Ocean Accident and Guarantee Corporation Ltd v Koch 1963 (4) SA 147 (A) at
157.