Mohun and Another vs. Phillips N O obo Shearer and Another

South Africa

22.12.2022

Civil

The principal is not liable for the civil wrongs of an independent contractor, except where the principal was personally at fault

The central issue in the appeal was whether the appellants were liable for the brain injury sustained by Mr David Robin Shearer, who was admitted as a patient in the emergency unit of Life Westville Hospital (the hospital) on 27 December 2014. Mr Shearer, who was 43 years old at the time, was brought to the hospital’s emergency unit by his wife, the second respondent, Mrs Justine Shearer, after he reportedly consumed an unknown quantity of tablets in combination with alcohol. Shortly after his arrival, the first appellant examined him. It was common cause that during the course of that evening, Mr Shearer became hypoxic and suffered from cardiac arrest, which led to permanent brain damage.

The first appellant was a specialist physician who was, on the evening in question, engaged as a locum tenens by the second appellant, a medical practice which provided clinical care in the emergency unit in terms of a memorandum of agreement with the hospital. In regard to the liability of the first appellant, on his own evidence, the first appellant was negligent by leaving the patient in the care of the nursing staff without adequately instructing them. The first Appellant conceded that he should have given clear instructions to the nursing staff, in particular Sister Phillips, to constantly remain with Mr Shearer, as well as to what precisely to monitor him for, given that the ingestion of drugs and alcohol could affect his respiratory rate and lead to possible airway obstruction. The SCA, therefore, held that the evidence of negligence and causation was overwhelmingly against the first appellant. There was, accordingly, no reason to interfere with the high court’s decision in relation to him.

The only question in relation to the liability of the second appellant before the SCA was whether in law it was liable for the negligence of the first appellant. The principal is not liable for the civil wrongs of an independent contractor, except where the principal was personally at fault. There was simply no legal basis upon which the second Appellant could attract vicarious liability for the conduct of the first appellant. Thus, on the evidence before it, no case had been made out for a finding that the second appellant was vicariously liable for the delicts of the first appellant.

The alternative argument that the Supreme Court should develop the common law by reconsidering the principle of non-delegable duty of care in circumstances where the victim was especially vulnerable, particularly in places like hospitals and schools – whereby a higher standard of care was argued for – the Supreme Court found that the first Respondent presented before the Court none of the factors necessary for a court to consider before developing the common law. Consequentially, both arguments in relation to the liability of the second appellant failed.

Tags : Civil Negligence Liability

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