Dutton - Medical Malpractice in SA

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Medical Malpractice in South African Law
Some perceive that this may be occurring due to our rules of causation. In recent years, a
conflation of factors have caused lawyers, scholars and courts to question anew whether
the way tort law has traditionally defined the necessary relationship between tortious
acts and injuries is the right way to define it, or at least the only way. This questioning
has happened in the United States and in England and has surfaced in Australia. And it
is happening in Canada. Why is this happening? Why are courts now asking questions
that for decades, indeed centuries, did not pose themselves, or if they did, were of no
great urgency? I would suggest that it is because too often the traditional “but-for”, all-ornothing,
test denies recovery where our instinctive sense of justice — of what is the right
result for the situation — tells us the victim should obtain some compensation.’ 53
The House of Lords therefore held that, following McGhee v National Coal Board,
the appropriate test in this situation was whether the defendant had materially
increased the risk of harm toward the plaintiff. The employers were accordingly
jointly and severally liable to the plaintiff. In so doing, the House of Lords
approved the test of ‘materially increasing the risk’ of harm, as a deviation in
some circumstances from the ordinary ‘balance of probabilities’ test under the
‘but for’ standard.
5.3.1 The principle of ‘recognised risk-avoidance’
McGhee v National Coal Board led to a further development in the English law. In
Clark v MacLennan, 54 the court held that —
‘It seems to me that it follows from McGhee that where there is a situation in which
a general duty of care arises and there is a failure to take a precaution, and that very
damage occurs against which the precaution is designed to be a protection, then the
burden lies on the defendant to show that he was not in breach of duty as well as to
show that the damage did not result from his breach of duty.’
This ‘recognised risk avoidance’ concept comes very close to the concept of res
ipsa loquitur, which is viewed with antipathy in medical cases. 55 The principle
was ultimately not approved by the House of Lords in Wilsher v Essex Area Health
53
At 11, quoting with approval remarks made by McLachlin J, extra-judicially (“Negligence
Law — Proving the Connection”, in Torts Tomorrow, A Tribute to John Fleming, ed Mullany and
Linden, LBC Information Services 1998, at 16).
54
It must be emphasized that different standards of proof apply to causation and to quantification.
Causation requires the establishment, on a balance of probabilities, of a causal link
between negligence and harm. Quantification, where it depends on future uncertain events,
is decided not on a balance of probabilities, but on the court’s assessment of the chances
of the risk eventuating. Or, as succinctly stated in the Canadian case of Kranz v M’Cutcheon
(1920) 18 Ontario WN 395 (referred to by Lord Hoffmann in Gregg v Scott [2005] 4 All ER 812
HL at [69]): ‘The rule against recovery of damages is directed at uncertainty as to cause rather
than as to extent or measure.’ (De Klerk v ABSA Bank Ltd and Others 2003 (4) SA 315 (SCA), following
the English case of Allied Maples Group Ltd v Simmons & Simmons (A Firm) [1995] 1 WLR
1602 (CA) at 1609E–1610D and 1614C–E; Burger v Union National South British Ins Co 1975 (4)
SA 72 (W)). It should be noted that Allied Maples upheld a claim for ‘loss of a chance’.
55
Both in South Africa and in England: see Cecilia Goliath v Member of the Executive Council for
Health, Eastern Cape (085/2014) [2014] ZASCA 182 (25 November 2014); Buthelezi v Ndaba 2013
(5) SA 437 (SCA); Van Wyk v Lewis 1924 AD 438; Ashcroft v Mersey Regional Health Authority
[1983] 2 All ER 245; Mahon v Osborne [1939] 2 KB 14 . See para 6.32 below.