South Africa: South African Constitutional Court Rethinking The "Once-And-For-All Rule"

Last Updated: 20 November 2017
Article by Deon Francis

In the recent decision of MEC, Health and Social Development, Gauteng v DZ [2017] ZACC 37, the Constitutional Court considered the potential benefits of allowing defendants to pay future medical expenses by way of structured payments (instalments) in light of the "archaic" once-and-for-all rule.

The increase in medical malpractice claims, together with the high damages awards handed down by our courts in respect of loss of income/earning capacity and future medical expenses, is crippling both the public and private health sector in South Africa. In the public sector, a large portion of the annual health budget allocated is spent on defending claims against the State; thereby reducing the total expenditure available that could otherwise be allocated to increasing the amount of and improving the resources available at institutions of public health.

In the private sector, the increase in medical malpractice claims and quantum of damage awards is leading to an increase in professional indemnity insurance premiums payable by individual practitioners, an increase in hourly charge-out rates in order to cover the increased insurance premiums, and a reduction in the number of qualifying practitioners opting to specialise in traditionally "higher risk" specialisations such as anaesthesiology, oncology and obstetrics and gynaecology.

As a result of the above, stakeholders including medical practitioners, insurers, the legal profession as well as affected spheres of government have considered methods and means of dealing with these challenges. As future medical expenses typically comprise the largest portion of medical malpractice awards, the structured payment of future medical expenses is one potential method of dealing with these challenges, and is by no means a new concept.

Structured payment of future medical expenses would enable a defendant to, instead of immediately paying the lump sum amount awarded once judgment is handed down, pay future medical expenses as and when they become due and payable. It is believed that structured payments of future medical expenses would not only ease the financial burden on defendants (such as the health ministry), but also lead to greater certainty in respect of reduced life expectancy rates (which is ordinarily nothing more than an actuarial estimate).

The "once-and-for-all" rule, which is well-entrenched in South Africa's common law, poses a challenge to the allowance of structured payments of future medical expenses. There have been various challenges in the recent past wherein the practical application of the "once-and-for-all" rule was questioned, particularly insofar as it concerned medical malpractice litigation. This question arose in the case of MEC, Health and Social Development, Gauteng v DZ [2017] ZACC 37. Briefly, the facts of this case are as follows: In November 2009, the respondent (in her representative capacity as the mother of the minor child) gave natural birth at Baragwanath Hospital but due to birthing complications, the respondent's child was subsequently diagnosed with cerebral palsy.

Action was instituted by the respondent in the High Court for damages due to the negligence of Baragwanath Hospital (in terms of the principles of vicarious liability). The MEC conceded the merits and later also conceded the quantum, amounting to R23 million. Of the R23 million, R19 million was awarded in respect of the minor child's future medical expenses. After conceding both the merits and quantum, the MEC filed an amended plea in terms of which it was alleged that the MEC was not required to have to pay for future medical expenses in lump sum but could undertake to pay the R19 million directly to the healthcare service providers within 30 days of the receipt of a quote. The MEC's amended plea was dismissed in the High Court and, similarly, in the Supreme Court of Appeal on the basis that the "once-and-for-all" rule precludes payment of future medical expenses in instalments. To enable the MEC to make payments by way of instalments, it was held that the common law would need to be developed, however, the MEC did not present evidence to justify developing the common law to make an allowance for structured payments of future medical expenses.

Froneman J, providing the majority judgment in the Constitutional Court, similarly dismissed the MEC's appeal on the basis that no evidence was adduced by the MEC to justify the development of the deeply entrenched "once-and-for-all" rule. However, Froneman J held, that the possibility for future development is not excluded and that structured payments of future medical expenses may well be permitted, provided that evidence is adduced to support a development of the common law. In the interim, it was held that the court is open to defendants disputing claims for future medical expenses on the basis that the plaintiff can obtain less expensive medical services at a public health facility, thereby also potentially alleviating the financial burden of these claims on the public sector.

Jafta J, although ultimately concurring with the majority's decision, held that the "once-and-for-all" rule in its current form does not preclude payments of delictual damages in instalments and that all South African High Courts have an inherent power to allow future medical expenses to be paid in instalments, provided that the defendant has a good reason to elect to pay future medical expenses in instalments, and not by way of a lump sum payment.

The constitutional court has, ultimately, opened the door for defendants to justify that payment of the future medical expenses portion of a damages claim should be paid by way of structured payments, as opposed to a single lump sum.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions