Dutton - Medical Malpractice in SA

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Medical Malpractice in South African Law
tion, however, and it may generally be accepted that in practice the fault requirement
will be satisfied either by intention or by negligence, depending on the
requirements of the particular cause of action.
6.3 Forms of fault
There are two forms of fault: intention (dolus or animus iniuriandi) 6 and negligence
(culpa). 7 An allegation of either form of fault, appropriate to the cause of action
relied upon, must be pleaded and proved. 8 The two concepts are different: dolus
connotes a volitional state of mind, while culpa connotes a failure to measure up
to the standard of conduct expected by the law. 9 Both intention and negligence
are relevant to medical malpractice claims. Intention is an essential element of
the actio iniuriarum, while fault in the form of either negligence or intention
is required for the Aquilian action, the action for pain and suffering and the
dependants’ action. 10
6.4 Accountability
In order for a person to be legally at fault, he or she must have the necessary
mental capacity to be held accountable. Therefore, before turning to the concepts
of intention and negligence in more detail, the manner of assessing the person’s
mental capacity to be held legally accountable must be briefly discussed. A person
is accountable if he has the necessary mental ability to distinguish between right
and wrong, and if he can act in accordance with such appreciation. If a person
lacks accountability at the time of the conduct in question, then there can be
no fault. A person lacks the necessary mental capacity (and is therefore culpae
incapax) in, inter alia, the following situations which are regularly encountered in
this area of the law:
6.4.1 Youth
A child who has not completed his or her seventh year is always regarded as
lacking capacity (he or she is said to be culpae incapax). There is an irrebuttable
presumption that the child is not accountable. A child over the age of seven
and under the age of fourteen years is presumed to lack accountability until the
contrary is proved. The onus of proof rests on the plaintiff. There is therefore a
rebuttable presumption that the child is not accountable.
(mens rea)’, or ‘serves as the grounds on which a person is blamed for his wrongful conduct’.
See e g Burchell Principles of Delict (Juta 1993) at 10 and 30–32; Neethling et al Law of Delict
6 ed (LexisNexis 2010) at 123–124; Boberg The Law of Delict vol 1 Aquilian Liability 2 imp (Juta
1984) at 268–274.
6
Animus iniuriandi is simply the form of dolus required for the actio iniuriarum (the action for
infringements to rights of personality).
7
Culpa is sometimes used as a synonym for the fault element in its entirety (that is, negligence
and intention); the meaning of culpa in this work is in the narrower sense of ‘negligence’.
8
See ch 3 above for a detailed discussion of the essential elements of the causes of action in
medical malpractice cases.
9
S v Ngubane 1985 (3) SA 677 (A) at 686.
10
See ch 3 above for a discussion of the relevant causes of action.