Much has been written about the Supreme Court UK decision in Paul v Royal Wolverhampton NHS Trust, which was handed down in January 2024.  In the United Kingdom, this judgment has effectively put an end to claims for damages arising from emotional shock and trauma consequent upon medical malpractice incidents where these claims are brought by individuals other than the patient and arise out of the death of that patient (referred to in the judgment as “secondary victims”).

It is not surprising that this judgment has piqued interest amongst legal professionals who specialise in medical malpractice, not only in the United Kingdom but in many jurisdictions which loosely follow English law. Some have described the judgment as being a landmark decision, whereas others have brushed it aside as having no relevance in their jurisdiction. This naturally made me question whether this decision could find application in South Africa.

Currently, the authoritative case in South Africa which deals with emotional shock and trauma is the case of Komape v Minister of Basic Education. The Court held that for such claims to be actionable the plaintiff would have to prove that he or she suffered an identifiable psychiatric injury. In reaching this conclusion the court placed much reliance on the English authorities, which, coincidentally, are the same authorities referred to in Paul. 

In adopting the English legal principles in relation to the criteria for claims for emotional shock and trauma, the Supreme Court of Appeal stated as follows:

“The development of the law on this issue in England was, to a large extent, mirrored in Australia, New Zealand and Canada. In all three of those jurisdictions, damages for ‘nervous shock’ are now recoverable where the claimant suffers either a physical consequence or some medically identifiable psychiatric illness or injury.”

Thus, the requirement for such cases, in both England and South Africa was the presence of an identifiable psychiatric illness. However, much of the jurisprudence in this regard fell outside of the medical malpractice arena, at least, prior to Paul.

In reaching its conclusion, the Court in Paul found that claims of this nature arising out of medical malpractice incidents are distinguishable from the usual claims arising out of what is broadly termed, “accidents” (defined as a sudden and unexpected event).  This distinction was premised in the apparent lack of a duty of care owed by medical practitioners to “secondary victims”. The Court did however highlight that there would be exceptions to this, albeit in very limited instances.

The considerations that our courts take into account in determining the existence of a legal duty of care are similar to those in English law. Some of these considerations include (but are not limited to) control, proximity, the nature of the relationship between the parties, and whether the harm is foreseeable. The Court in Paul took all these considerations into account and concluded that:

“We are not able to accept that the responsibilities of a medical practitioner, and the purpose for which care is provided, extend to protecting members of the patient’s close family from exposure to the traumatic experience of witnessing the death or manifestation or disease or injury to their relative. To impose such a responsibility on hospitals and doctors would go beyond what, in the current state of our society, is reasonably regarded as the nature and scope of their role.”

To determine whether the same distinction ought to be made in South Africa, I thought it could be beneficial to draw a comparison between the presence of a legal duty in a case such as Komape and one related to a medical malpractice claim, taking into account the various considerations mentioned earlier. While there are various considerations to take into account, two examples of such would include the following:

• There was a special relationship between the Minister of Basic Education and the parents of students attending the school by virtue of the public office which was held. One cannot say that a special relationship exists between a “medical practitioner” and “secondary victims”. A medical practitioner has a special relationship with his or her patient only.
• The Minister of Education ought to have foreseen the possibility of harm that might result. It is debatable whether a medical practitioner ought to foresee harm to secondary victims (keeping in mind that the harm must take the form of an identifiable psychiatric illness).

The overarching factor to consider is whether the legal convictions of the community or public policy considerations dictate that liability should attach to the medical practitioners in circumstances such as these. As a defense orientated attorney, I would naturally agree that the decision in Paul ought to find application in South Africa. However, let me conclude by asking this question: If you ever find yourself on the operating table, would you want your surgeon’s focus to be on you, or both you and your family members? 

Authored by Deon Francis - Assisted by Jakop  Mphofu