Dutton - Medical Malpractice in SA

6.4.2 Mental disease or illness
Fault 81
It should, in similar vein, be noted that a person suffering from a mental disease
or illness may also lack accountability. A person is not accountable if he or she
does not have the necessary mental ability to distinguish between right and
wrong, or if the person does have such ability to distinguish between right and
wrong, but cannot act in accordance with such appreciation. 11
6.5 Exceptions to the fault requirement
Our law does not always require the presence of fault for liability to result. There
are occasions when liability without fault will be found to exist. This is known as
‘no-fault’ or strict liability, but is seldom relevant to medical malpractice cases. 12
INTENTION (DOLUS; ANIMUS INIURIANDI)
6.6 Definition of intention
Intention may be defined as the state of mind in which a person’s will is directed
at producing a particular result. An additional requirement, that the defendant
must know that the conduct in question is unlawful, has been recognised in our
law, but the principles governing this concept are not settled. 13
6.7 The concept of intention
When assessing intention, the law enquires into the defendant’s state of mind.
The test is therefore subjective. 14
6.8 Direction of the will 15
The defendant must direct his or her will to bringing about the harm. This may
take various forms. The wrongdoer’s primary aim and object may be to bring
about the very harm which results (dolus directus); the resulting harm may be a
necessary and foreseen consequence of attaining the wrongdoer’s primary aim
and object (dolus indirectus); or it may merely be a possible and foreseen consequence
of attaining the primary object to which the wrongdoer reconciled
himself or herself (dolus eventualis). 16 Proof of any of these forms suffices to establish
intention. 17 Nor does the law attach specific consequences to any particular
form of intention; it is accordingly generally irrelevant which one is present in
a particular case for purposes of liability. It is therefore apparent how broadly
11
Fradd v Jaquelin (1882) 3 NLR 144.
12
For further discussion of these principles, see esp Neethling et al Law of Delict 6 ed (LexisNexis
2010) ch 11.
13
See, generally, the discussion below at para 6.9 below; Boberg The Law of Delict vol 1 Aquilian
Liability 2 imp (Juta 1984) at 269; Neethling et al Law of Delict 6 ed (LexisNexis 2010) at 126.
14
Burchell Principles of Delict (Juta 1993) at 30.
15
See Burchell op cit 30–32; Neethling et al op cit at 127–128; Boberg op cit at 268–270.
16
S v Ngubane 1985 (3) SA 677 (A) at 687.
17
Neethling et al Law of Delict 6 ed (LexisNexis 2010) at 128.