Browsing by Author "Price, Alistair"

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    Exploring potential reforms to address the high costs of medical malpractice litigation in South Africa
    (2022) Sarfo-Adomah, Amma; Price, Alistair
    For many years, medical malpractice claims have threatened the effective governance of health care sectors the world over. South Africa is not exempt from the effects of this phenomenon. The effects of increasing medical malpractice claims and their associated costs threaten the effective governance of the private and public health care sectors, which results in a vicious cycle of resource depletion, poor service delivery and constantly increasing rates of medical malpractice incidents. This research aims to add to the body of work in South Africa concerning the adverse effects of medical malpractice claims. This dissertation provides a theoretical discussion on whether periodic payments and alternative dispute resolution are satisfactory responses to combat both the rising cost of damages and the procedural backlogs present within the law of delict and medical malpractice litigation in South Africa to achieve comprehensive reform in the law of delict. Ultimately, this dissertation examines the practical legal issues that have led to the current medical malpractice crisis in South Africa. The dissertation examines the role of aspirational health care policies, goals and agendas (specifically section 27 of the Constitution of the Republic of South Africa) that have been implemented on a national level, and it also examines the ability to implement comprehensive reform to address the medical malpractice crisis to hopefully break the vicious cycle that is keeping South Africa from achieving its national and constitutional health care goals.
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    The incommensurability of the archaic perceptions of the maxim res ipsa loquitur in medical negligence litigation
    (2016) Pienaar, Catherina Elixabeth; Price, Alistair
    This thesis assesses the legal doctrine res ipsa loquitur ('the thing speaks for itself) in the context of delictual claims for compensation for medical negligence in South African law. The thesis accepts that the doctrine is defensible in principle: a civil court may justifiably draw an inference that a defendant's negligent conduct was a factual cause of the harm suffered in simple cases where there is uncontradicted evidence sufficient to establish a prima facie case. However, it is argued that the South Africa Appellate Division's rejection of the doctrine in the context of medical negligence in 1924 remains justified. It is sometimes thought that the doctrine would assist plaintiffs in complex medical cases by easing the difficulty of establishing a cause of action on a balance of probabilities. However, the thesis argues to the contrary that applying the doctrine in the context of medical negligence claims in South Africa is potentially unjust to claimants and defendants alike. Judgments of medical negligence cannot be made soundly without a proper appreciation of the relevant medical facts. The availability of the doctrine, in the South African context, provides a motivation for plaintiffs to advance insufficiently-prepared evidence, sometimes without the views of experts. This results in the oversimplification of complex medical realities, which increases the risk that courts may reach conclusions regarding negligence and factual causation for reasons that are unjustifiable from a medical perspective. Insufficiently-prepared evidence is also vulnerable to rebuttal by defendant-doctors on 'exotic' or inadequate grounds from a medical perspective, resulting in the unjust rejection of negligence claims. By enabling a superficial approach to deciding questions of medical negligence in the South African context, the doctrine may promote the erroneous assumption that bad medical outcomes typically result from medical wrongdoing. To make its case, the thesis draws on case studies of a variety of medical procedures and contrasts the operation of res ipsa loquitur in South Africa against English legal experience. Differences between the two systems of medical negligence cast doubt on the notion that the English approach should be transplanted to South Africa. Rather than relying on the res ipsa loquitur doctrine to bolster claims made without medical expert evidence, the South African plaintiff should instead rely on constitutional arguments, appealing to basic rights to bodily integrity and dignity, to justify the injection of a degree of flexibility into the common-law elements of a delictual claim.
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    Privacy and data protection in eHealth in Africa - an assessment of the regulatory frameworks that govern privacy and data protection in the effective implementation of electronic health care in Africa: is there a need for reform and greater regional collaboration in regulatory policymaking?
    (2017) Townsend, Beverley Alice; Price, Alistair
    This thesis examines and evaluates the legal protection of privacy and personal data in South Africa and across Africa in the electronic health care industry, that is, where medical services are provided to individuals by way of networked technological platforms including mobile telephones. This thesis presents a critical understanding of, and pragmatic solution to, the questions that lie at the intersection of the following: an individual's right to privacy and data protection, cultural disparities when defining privacy, the emergence of electronic health care, the sensitivity of health related data, the need for health care in areas, where lack of resources and lack of accessibility are often commonplace, and the introduction of networked technologies within the health care system as a solution. Firstly, eHealth services and applications are described. Secondly, notions of privacy and data protection are considered. Thirdly, the prevailing legal determinants that form the basis of African and South African data protection regulatory measures are ascertained. Fourthly, selected illustrations are presented of the practical implementation of eHealth services and certain recent influencers within the digital environment, which may inform the future eHealth privacy regulatory framework. Finally, criticisms of the Malabo Convention are presented and recommendations advanced. As there is limited guidance with regard to policymaking decisions concerning privacy and data protection in the implementation of eHealth in developing countries, possibilities for reform are suggested. These will allow a more careful balance between, on the one hand, the normative commitment to providing accessible health care using electronic means and, on the other, the rights to privacy and data protection of the user, which require safeguarding within an African context. In proposing a solution, it is argued that adequate privacy regulation of electronic health must (1) be sensitive to societal and cultural differences in what is considered private, (2) be responsive to rapid technological transformation in healthcare industries, and (3) build user confidence in data protection in this context, to enable nascent electronic health initiatives to reach their potential in Africa. It is proposed that the adoption of an accepted social imperative protected by a powerful triumvirate of ethical constraints, effective legal provisions and regulations, and operational necessities, is possible. Greater regulatory collaboration across the continent is called for based on harmonised domestic and international laws, national policies, and industry codes of conduct that are sensitive to local conditions and challenges.
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    Recovering for a loss of a chance of survival: loss of a chance in South African medical malpractice
    (2017) Busch, Stefanie; Price, Alistair
    This dissertation seeks to argue that the doctrine of a loss of a chance should be adopted into South African law, specifically within the medical malpractice field. This doctrine allows for a physician to be held delictually liable for causing a loss of a chance of recovery or survival in medical misdiagnosis cases where a physician negligently failed to diagnose a curable disease, and the patient is thus harmed by or succumbs to such a disease. It is this writer's objective to demonstrate why such a doctrine ought to be introduced into South African delictual law as a secondary claim which is to be available once a claimant is unable to meet the traditional test for causation, and then evaluate in which manner this doctrine should be integrated into the law, keeping in mind South Africa's law of delict and the court's past practices in developing delictual principles. Two different approaches predominately adopted in other jurisdictions in order to overcome the concerns regarding how the doctrine disregards the causation standard will be discussed. The first approach, the 'substantial possibility' approach, calls for the relaxation of the causation standard in specific cases, whilst the second approach, the 'pure chance' approach, views the loss of a chance as an autonomous injury in and of itself. Each of the two approaches are evaluated in relation to South Africa's delictual law, as well as its judiciary's past practices in developing delictual principles. By doing so this writer will illustrate which approach is more beneficial and suitable within the South African delictual law context. It is this writer's contention that, in order to ensure the effectiveness of the doctrine, it would be wiser to introduce the loss of a chance doctrine by ways of wrongfulness, whereby the court could create a new harm which is wrongful in the eyes of the law if it holds that it is reasonable, in terms of public policy and the views of the community, to hold a physician responsible for negligently causing the patient to lose a chance of survival or a cure. By means of wrongfulness, the loss of a chance doctrine can therefore be integrated into South African delictual law on a strong fundamental foothold as to not impeach and threaten the effectiveness of the doctrine in future.
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    The impact of Beadica on the public policy doctrine in South African contract law
    (2024) Taylor, Max; Price, Alistair; Naud, Tjakie
    The Constitutional Court's judgment in Beadica 231 CC v Trustees for the time being of the Oregon Trust (‘Beadica') sought to settle a long-standing debate in South African contract law concerning the proper scope of the public policy doctrine. This thesis traces the historical development of the doctrine and then critically evaluates the Beadica decision, firstly by clarifying what it held and, secondly by identifying certain doctrinal questions that remain unresolved post-Beadica, particularly questions relating to the application of the test developed by the Constitutional Court in Barkhuizen v Napier. The thesis contends that Beadica held that the public policy doctrine does not permit courts to override contracts on the stand-alone basis that they are unreasonable or contrary to some other abstract value. It did not, however, take the more far-reaching view, ascribed to it by the dissenting judgment, that abstract values can never be directly applied as override grounds under the public policy doctrine. Instead, it held that abstract values can be directly applied, contingent on certain conditions being met. Drawing on various historical and conceptual arguments developed during the thesis, possible avenues for the further rationalisation and constitutionalisation of the public policy doctrine are proposed and assessed.
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    Unearthing the relationship between disease and causation in South African gold mines
    (2017) De Waal, Lisa; Price, Alistair
    The purpose of this dissertation is to present an analysis of the relationship between the law of delict – specifically the element of factual causation – and the manner in which this element should apply to an assessment of the liability of gold mining companies in South Africa and their failure to protect mineworkers from exposure to silicosis, silico-tuberculosis and pulmonary tuberculosis. It is argued that the Constitutional Court's interpretation, and their ultimate application of the test for factual causation in Lee v Correctional Services 2013 (2) SA 144 (CC), in the form of the material increase of risk test, is precedent for the assessment of factual causation within the tuberculosis class in Nkala and Others v Harmony Gold Mining Co Ltd and Others 2016 (5) SA 240 (GJ). To underscore this argument, analogies are drawn between the powerful positions of gold mining companies and the State, and the vulnerable positions of mineworkers and prisoners in South Africa, as well as the Constitutional obligations owed by the State and gold mining companies towards prisoners and mineworkers, respectively. Furthermore, reasons why the material contribution test should apply to the silicosis class are discussed. This dissertation also outlines the statutory and common law duties owed by mining companies to underground mineworkers, for establishing these requirements is a requirement of the material increase of risk and material contribution tests. It is noted that the trial court in the Nkala class action suit should apply the aforementioned tests for factual causation to the two classes, failing which would be an injustice to legal precedent, and would be unfair and unreasonable.