Damages for medical negligence: What does “once and for all” really mean?

The “once and for all” rule, which is entrenched in our common law, simply requires that a plaintiff must claim in one action all damages, both already sustained and prospective, flowing from one cause of action. Its purpose is to prevent a multiplicity of claims based on one cause of action, and thus to ensure that there is a clear end to litigation.

The Constitutional Court (Court) in MEC for Health and Social Development, Gauteng v DZ obo WZ 2018 (1) SA 335 (CC) was recently called upon to consider the application of the “once and for all” rule in the context of damages for medical negligence – does the rule allow for payment of future expenses as and when the need arises, or by means of future provision of actual medical services? Alternatively, should the rule be developed or abolished?

In response to the above questions, Froneman J, in the majority judgment, confirmed that:

1. damages due by law are to be awarded in money;
2. the “once and for all” rule requires that past and prospective damages be claimed and quantified in one action, and that future damages may therefore not be paid in instalments; and
3. a plaintiff may not be compensated by means of the actual rendering of medical services.

Froneman J held that the applicant failed to plead sufficient factual material to support the development or abolition of the “once and for all” rule, and that damages for future medical expenses must thus be paid in one lump sum of money.

The Court did, however, confirm the approach taken by the Appellate Division in Ngubane v South African Transport Services 1991 (1) SA 756 (AD), accepting that defendants, such as hospitals or their insurers, may bring evidence that medical services at a lesser cost than that of private medical care (and of the same or higher standard) will be available to the plaintiff in future. Should it be found that the damages claimed by the plaintiff are excessive and unreasonable, damages in the amount of the loss actually established must be awarded. The Court held that the reasonableness of future damages claimed can only be assessed once evidence regarding the adequacy of alternative health care has been considered. Damages may therefore be quantified using the cost of adequate public health care services in certain instances, and the rule that a plaintiff is obliged to reasonably mitigate its damages was thus confirmed.

It must be noted that Jafta J, in his minority judgment, differs from the majority judgment on the issue of periodic payment of damages. He argues that the “once and for all” rule does allow for periodic payment of damages, as the rule does not govern the actual execution of payment, but simply intends to prevent a multiplicity of lawsuits based on a single cause of action. Jafta J further argues that a court derives its power to issue orders from the Constitution, and not from the common law.

Although the “once and for all” rule has survived judicial scrutiny in this case, we may well see future judgments that accord with Jafta J’s interpretation of the courts’ power to allow periodic payments. This is supported by the majority’s finding that the “once and for all” rule may be developed incrementally or in its entirety in future cases, should sufficient factual material be provided to support such development. Furthermore, should the rule be so developed, it is conceivable that such developments may also extend to damages for future loss of income.

In response to the DZ judgment, the State Liability Amendment Bill (B16-2018) (Bill) was introduced to the National Assembly on 30 May 2018. The Bill requires that in successful claims against the State arising from wrongful medical treatment that exceed an amount of R1 million, courts are required to order that compensation be paid to successful claimants in terms of a structured settlement, which may provide for periodic payments for future costs. In addition, a court may order that, in lieu of monetary compensation, the State must provide medical treatment to the injured party at a public health establishment. Finally, the State may apply for a variation of the payment plan, should the circumstances of the injured party substantially change.

Defendants such as private hospitals or their insurers may be tempted to argue for the development of the common law to allow them to provide future treatment and services as and when the need arises, or to allow for periodic payment of damages, as opposed to being ordered to pay a lump sum upfront. Although there is the risk of administrative difficulties and enforcement of periodic compensation, such a method of compensating claimants removes much of the speculation associated with the quantification of future damages “once and for all”, and allows greater certainty in awarding reasonable, realistic future damages, as is acknowledged in the Bill.

It remains to be seen whether private hospitals or their insurers will make future endeavours to develop the way in which the rule is applied to private parties in our law.