Dutton - Medical Malpractice in SA

76
Medical Malpractice in South African Law
confinement of the wife and the maintenance of the child until it became self-supporting.
As far as factual causation is concerned, the court applied the ‘but for’
test. 75 The court considered the two approaches to the issue. The court pointed out
that our courts have in the past followed both the ‘relative’ and the ‘legal causation’
approach. 76 Although the relative view was most commonly followed, the
‘legal causation’ approach had also been followed in a number of cases. 77 The court
pointed out that in the “legal causation” cases public policy plays a role, even a decisive
role, in limiting liability. On the other hand, in the relative approach, public
policy plays the very same role in establishing which consequences of an act are
to be regarded as unlawful, thus creating and at the same time limiting liability.
Applying S v Mokgethi, 78 the court concluded that the two approaches set out above
differ in methodology and approach, but not in substance. 79 If properly applied,
held the Court, they would generally give the same legal result in each case.
In Clinton-Parker v Administrator, Transvaal 80 the plaintiffs claimed delictual,
alternatively contractual damages from the defendants arising out of the discovery,
nearly two years later, that their babies had been swapped at birth by the staff of
the hospital at which the babies had been born. The damages claimed consisted
of treatment for the severe psychological damage that they suffered, the cost of
travelling between the respective towns of residence in order to visit their natural
children and general damages. Fault and factual causation were not in dispute, as
the parties were in agreement that the children had been negligently swapped. The
defendant disputed that liability attached to it because the element of legal causation
was lacking. It contended that: firstly, serious harm of the kind claimed had
not been foreseeable — all that would have been foreseeable would have been some
psychological disturbance; secondly, the plaintiffs’ decision to return the children
given to them at birth was a novus actus interveniens which broke the chain of legal
causation; and thirdly, that as a matter of policy, bearing in mind the possibility of
limitless liability, the award should not be granted. The Court held that it is settled
law that the general principles of delict apply to cases where nervous shock or psychiatric
damage were the consequence of a negligent act. The Court applied the
flexible test of legal causation, including the test of reasonable foreseeability, and
held that the consequence was reasonably foreseeable and that a decision in favour
of the plaintiffs would not be against public policy. 81
75
Minister of Police v Skosana 1977 (1) SA 31 (A) at 34F–35G.
76
Mukheiber v Raath and Another 1999 (3) SA 1065 (SCA) at 1078–1079.
77
The Court referred to Minister of Police v Skosana 1977 (1) SA 31 (A) (supra at 34) (Corbett
JA, majority judgment); International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A) at
702 et seq (Corbett CJ); Smit v Abrahams 1994 (4) SA 1 (A) at 14A et seq (Botha JA); Standard
Chartered Bank of Canada v Nedperm Bank Ltd 1994 (4) SA 747 (A) at 764I et seq (Corbett CJ);
and Groenewald v Groenewald 1998 (2) SA 1106 (A) at 1113C–J in respect of intentional acts.
78
1990 (1) SA 32 (A).
79
At [40].
80
1996 (2) SA 37 (W).
81
The Court regarded the crucial issue as being whether, in all the circumstances of the specific
case, the consequence was reasonably foreseeable. The Court accepted that where the