Delict and Duty of Care Negligence

1. Introduction

In the set of facts given in the box on page 1211 in “English

for Law Students” 2nd edition there are a couple of issues
coming to the fore. If the chronological sequence of events
are accepted as they appear, the following legal issues
come to mind:

• What legal rules and/or principles are applied in this

claim,
• the reasonable man test,
• medical negligence and a medical practitioner’s duty
of care, and
• who has a claim against whom.

The facts are as follows: Mrs. M. was pregnant with her first
child. She contracted influenza and used medicine contra-
indicated for pregnant women, as it may cause serious
defects in the unborn child. She warned her doctor that she
is pregnant, but he answered that it should not be a problem.
The child was born with serious defects2.

2. Legal points and disputes.

These facts must be analyzed by looking at the principles

underlined by the law of delict. If we look at the definition of
delict, which is described as “an unlawful culpable act which
causes damage and creates an obligation”3, and comparing
it to the facts supra4, it can be clearly seen that all elements
that constitutes a delict are present.

The liability of the medical practitioner, as well as the mother

needs to be examined by means of the possible negligence
of both the doctor and the mother, by applying the
“reasonable man test”5 to the doctor and the mother, the
duty and standard of care practiced by the doctor, and
possibly the application of the nasciturus fiction.

1
Van der Walt, C, and Nienaber, AG, 2nd Ed. P. 121.
2 nd
Van der Walt, C, and Nienaber, AG, 2 Ed. P. 121.
3
Van den Bergh et al, Foundations of the South African Law, Unisa, p. 162 at 1.1
4
Van den Bergh et al, Foundations of the South African Law, Unisa, p. 164-165 at 2.1 – 2.5 the five
elements of a delict, which is an act, wrongfulness, fault, causality and damage
5
The reasonable man test (diligens paterfamilias) as defined in Negligence in Delict, by Macintosh
and Scoble, Juta 1970 page 22 9(a), “It has been observed that where a man should reasonably
anticipate the risk of harm to others, he is under a duty to exercise due care”, is differently applied to
the mother as to the doctor.

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 In the sequence of events the mother was negligent6 in
taking the medicine without first consulting the
doctor/pharmacist first, and by not consulting the instructions
included with the medicine box, which, in terms of the
Medicines and Related Substances Control Act7 regulations
must be supplied by the manufacturer.

The doctor was negligent in not applying the duty and

standard of care8. He should have, by applying the
reasonable man test,9 and after Mrs. M. informed him of her
condition, have taken reasonable care, by, for instance, if he
lacked knowledge of the medicine, to refer her to a colleague
for a second opinion.10

3. Conclusion

It is clear from the facts above that the mother might have a
claim against the doctor. It must be said that the child will
have a delictual claim of negligence against both the doctor
and the mother, by applying the law of delict, without having
to rely on the nasciturus fiction11 to win the case.

6
Claassen & Verschoor, Medical negligence in South Africa, p6 at 1.2 “Would the reasonable man, in
the same circumstances as the accused, have foreseen the possibility that a particular circumstance
existed or that a particular result could ensue? Would the reasonable man have taken precautions
against such a possibility? Did the accused’s conduct fall short when compared with that of a
reasonable man in the same circumstances?”
7
No. 101 of 1965 s 35
8
Claassen & Verschoor, Medical negligence in South Africa, p13 at 2.2.1 “When someone enters a
profession or vocation which requires special knowledge or skill, the law demands such degree of
capability as can reasonably be expected from a practitioner of such profession or vocation.”
9
Claassen & Verschoor, Medical negligence in South Africa, p7 at 1.2 “Did the accused’s conduct fall
short when compared with that of a reasonable man in the same circumstances?”
10
Whitehouse v Jordan and Another [1981] 1 All ER 267 Lord Justice Denning: “… we must say, and
say firmly, that, in a professional man, an error of judgment is not negligent” . The doctor may, on the
grounds of this landmark case in England, not be deemed negligent. However, that will be for the
court to decide.
11
Road Accident Fund v Mtati 2005 (6) SA 215 (SCA). Farlam AJ decided that the ordinary rules of
delict should be followed in this case, and dismissed the nasciturus fiction. Also see Pinchin and
Another, NO v SANTAM Insurance CO LTD 1963 (2) SA 254 (W),

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