What is the chance of success with the institution of a claim for personal injury and medical negligence claims? A claim can be justified against the wrongdoer if the test referred to hereunder is successfully applied by the legal representative on behalf of the patient. This test has come under the scrutiny of our courts in two matters namely; Chapeikin v Mini and Oppeit v Department of Health Western Cape.

In the matter of Chapeikin v Mini, the court had to determine if the appellants, Dr Chapeikin and Dr Sher acted negligently, and for this purpose had to utilise the test for negligence. The court articulated the approach for establishing the existence of negligence for the purpose of liability stating that fault arises if a reasonable person in the position of the defendant would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and would take reasonable steps to guard against such occurrence; and the defendant failed to take such steps.

The court also considered a re-statement of the test for negligence in Oppeit v Department of Health Western Cape. There are two steps, the first is foreseeability – would a reasonable person in the position of the defendant foresee the reasonable possibility of injuring another and causing loss. The second is preventability – would that person take reasonable steps to guard against the injury happening.

Negligence must be evaluated in light of all the circumstances and because the test is defendant-specific the standard are upgraded for medical professionals. The question for them is whether a reasonable medical professional would have foreseen the damage and taken steps to avoid it. The court also considered the case of Mitchell v Dixon. In this case the appellate division noted that this standard does not expect the impossible of medical personnel. 

A medical practitioner is not expected to bring to bear upon the case entrusted to him the highest possible degree of professional skill, but he is bound to employ reasonable skill and care and he is liable for the consequences if he does not.” “A practitioner can only be held liable if his diagnosis is so palpably wrong as to prove negligence, that is to say, if his mistake is of such a nature as to imply absence of reasonable skill and care on his part, regard being had to the ordinary skill in the profession.

The test is always whether the practitioner exercised reasonable skill and care or, put differently, whether his or her conduct fell below the standard of a reasonably competent practitioner in the field. If the error is one that a reasonably competent practitioner might have made it will not constitute.

Due to the technical nature of these type of claims, clients are advised to consult a legal expert that specialises in this field to assist them in investigating possible claims.