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[1993] ZASCA 145
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Jansen van Vuuren and Another NNO v Kruger (675/91) [1993] ZASCA 145; 1993 (4) SA 842 (AD); [1993] 2 All SA 619 (A) (28 September 1993)
CASE NO. 675/91
J VD M
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In the matter
between:
J N P JANSEN VAN VUUREN AND ANOTHER NNO
APPELLANTS
and
M J KRUGER
RESPONDENT
CORAM
: JOUBERT, NESTADT, KUMLEBEN, NIENABER,
JJA et HARMS, AJA
DATE HEARD
: 3 SEPTEMBER 1993
DATE DELIVERED
: 28
SEPTEMBER 1993
JUDGMENT
HARMS, AJA:
This is an appeal against a judgment of Levy AJ in the Witwatersrand
Local Division in which he
2
dismissed a claim for damages for the alleged breach of the plaintiff's
right to privacy. The appellants are the executors of the
estate of the
plaintiff, Mr McGeary, who died during the course of the trial of an
AIDS-related disease. The respondent, a general
medical practitioner of Brakpan,
was the first defendant. The second defendant was the owner of a medical testing
laboratory in the
same town, but the claim against him was withdrawn shortly
before the trial. The trial Judge granted the necessary leave to appeal.
In what
follows I shall in the main refer to the parties in their original
capacities.
The factual background to the plaintiff's claim can be shortly
summarized. He lived in a homosexual relationship with one van Vuuren
in
Brakpan. It appears that they were fairly well-known residents of that town and
that the nature of their relationship was either
generally known or surmised.
During the
3
beginning of 1990 they began a business venture in and moved to
Nylstroom. They had, however, retained some links with Brakpan. During
that
period the plaintiff applied for life insurance cover from Liberty Life
Insurance Company. The company required a medical report
including a report on
the plaintiff's HIV status (i e whether the plaintiff was infected with the
human immunodeficiency virus).
The first defendant had been the plaintiff's
general medical practitioner since 1983 and the plaintiff nominated him to
prepare the
medical report. For purposes of an HIV blood test a sample was drawn
on 27 March 1990 at the second defendant's laboratory. The result
was positive
and the second defendant informed the first defendant accordingly. The first
defendant in consequence arranged an appointment
with the plaintiff in order to
consult with him on the outcome. That took place on 10 April 1990. The plaintiff
was extremely upset
and distressed. He was
4
also concerned about a possible leak and raised the issue with the first
defendant who promised to respect his wish to keep it confidential.
The
following day during the course of a game of golf with Dr van Heerden, also a
general medical practitioner, and Dr Vos, a dentist,
the first defendant
disclosed the plaintiff's condition to them. The plaintiff and these three
doctors moved in the same social circle
in Brakpan; the plaintiff was engaged in
a business venture with van Heerden's wife; Vos had in the past been the
plaintiff's dentist;
and the first defendant's ex-wife and her parents were on
friendly terms with van Vuuren. Van Heerden, in due course, informed his
wife.
Whether Vos informed his, was not established in evidence but all assumed that
he had. The news spread and the plaintiff became
aware of this fact.
He was annoyed and attempted to establish the source of the breach of
confidence. He telephoned
5
Mrs Vos. Her denial was vehement. His call to Mrs Adriana Kruger (the
first defendant's ex-wife) elicited that she had heard the story
and that she
had been told that the second defendant was the source. She implied that it was
not the first defendant, pointing out
that since they were at loggerheads she
had no desire to protect him. He then spoke telephonically to the first
defendant who denied
that he had disclosed the information to anyone; he stated
that only the second defendant could have leaked the information; he expressed
the opinion that Mrs Vos would probably have spread the rumour; and he advised
the plaintiff to let the matter rest.
The plaintiff did not accept this advice and instituted proceedings
against the two defendants in October 1990. Since the action against
the second
defendant was withdrawn, it does not at this stage of the judgment require any
discussion.
6
The plaintiff's case against the first defendant was pleaded in these
terms: the first defendant had been his general medical practitioner;
in
consequence he owed him a duty of confidentiality regarding any knowledge of the
plaintiff's medical and physical condition which
might have had come to his
notice; he became aware of the plaintiff's HIV status; it was a term of the
agreement which established
the doctor-patient relationship that the first
defendant and his staff would treat this information in a professional and
confidential
manner; in breach of the agreement and in breach of his
professional duties the first defendant "wrongfully and unlawfully" disclosed
the test results to third parties; in consequence the plaintiff had suffered an
invasion of, and had been injured in his rights of
personality and his right to
privacy. Sentimental (i e non-pecuniary) damages of R50 000 were initially
claimed, but the amount was
increased to
7
R250 000 during the course of the trial.
The first defendant in his plea admitted the existence of the
professional relationship, his legal duty to respect the plaintiff's
confidence
and the term of the agreement as alleged. What was disputed, however, was the
making of any disclosures and the resultant
damages. That remained his case
until Dr van Heerden testified on behalf of the plaintiff. (During the
cross-examination of this
witness it had already become clear that the denial
had been a tactical one.) The first defendant then applied for, and was granted,
an amendment of his plea in terms of which, in the alternative to the denial,
the absence of wrongfulness was raised on three alternative
bases: (a) the
communication had been made during a privileged occasion, (b) it was the truth
and was made in the public interest,
and (c) it was objectively reasonable in
the public interest in the light of the
boni mores
.
8
The Court
a quo
was of the view that the plaintiff's cause of
action was the
actio iniuriarum
and that "[t]he duty of which plaintiff
alleges a breach is founded in their contractual relationship but only as the
circumstance
out of which the duty arises." On behalf of the appellant it was,
however, argued that two alternative causes of action had in fact
been pleaded,
namely breach of contract and the
actio iniuriarum
, and that in respect
of the former
animus iniuriandi
is not an element.
Counsel presented this argument in order to counter in advance a
submission, to which I shall revert, that
animus iniuriandi
had not been
established. It is convenient to dispose of this side-issue (that breach of
contract was a self-contained cause of action
in the circumstances of the case)
at the outset.
The argument was premised on the fact that
9
the term of the contract was common cause and it proceeded on the
supposition that there is no reason why the breach of an agreement
not to commit
an
injuria
ought not to be actionable by a claim for damages. I am
prepared to assume for purposes of argument that the breach of an agreement
not
to commit an
injuria
is so actionable. But that does not derogate from
the principle that only patrimonial damages can be recovered on the strength of
a breach of contract:
Administrator Natal v Edouard
[1990] ZASCA 60
;
1990 (3) SA 581
(A).
The claim in the present instance is one for sentimental damages. No attempt was
made to prove any other kind of loss. I agree
with Levy AJ that the contract
relied upon merely provides the origin of the doctor-patient relationship. In
the light of the majority
judgment in
Lillicrap,
.
Wassenaar &
Partners v Pilkington Brothers (SA) (Pty) Ltd
1985 (1) SA 475
(A) it follows
also that it is not the breach of the contract which creates the
delictual
10
liability but the breach of the rights and duties that arise from the
resultant professional relationship. The true cause of action
is therefore the
actio iniuriarum
.
As a general rule, and irrespective of the
ultimate onus, a plaintiff who relies on the
actio iniuriarum
must allege
animus iniuriandi
(
Moaki v Reckitt & Colman (Africa) Ltd
1968
(3) SA 98
(A) 104E-105E; cf
Minister of Justice v Hofmeyr
[1993] ZASCA 40
;
1993 (3) SA 131
(A) 154) - something the plaintiff had failed to do. However, as was pointed out
in
Jackson v SA National Institute for Crime Prevention
1976 (3) SA 1
(A)
13F-H, the averment need not be express if "the alleged
injuria
is
obviously an infringement of personality, or where the facts pleaded allow of an
inference of
animus iniuriandi
". Counsel for the respondent accepted the
aforegoing legal principles and also that the plaintiff cannot be non-suited at
this stage
of the proceedings
11
for having failed to make such an express allegation since it had always
been the first defendant's understanding that this was the
plaintiff's
case.
The
actio iniuriarum
protects a person's
dignitas
and
dignitas
embraces privacy. See
Jackson's
case
supra
at 11 F-G. Although the right to privacy has on occasion been
referred to as a real right or
ius in rem
(see e g
S v A
1971 (2)
SA 293
(T) 297 D-G), it is better described as a right of personality. See
Joubert,
Grondslae van die Persoonlikheidsreg
, p 130-136. In the present
case we are concerned with the alleged invasion of this right by means of a
public disclosure of private
facts. See
Financial Mail (Pty) Ltd v Sage
Holdings Ltd
[1993] ZASCA 3
;
1993 (2) SA 451
(A) 462 E-F; Joubert,
op cit
, p 136; 62A
American Jurisprudence
2d p 91.
As far as the public disclosure of private medical facts is concerned,
the Hippocratic Oath,
12
formulated by the father of medical science more than 2370 years ago, is
still in use. It requires of the medical practitioner "to
keep silence" about
information acquired in his professional capacity relating to a patient,
"counting such things to be as sacred
secrets". But the concept even pre-dates
Hippocrates. Oosthuizen, Shapiro and Strauss,
Professional Secrecy in South
Africa
, 1983, p 98, state:
"In a work written in Sanskrit presumed to be from about 800 BC Brahmin
priests were advised to carry out their medical practices
by concentrating only
on the treatment of a patient when they entered a
house and not divulging information about the sick person to anyone else.
In ancient Egypt also the priestly medical men were under
strict oaths to retain
the secrets given to them in confidence. They worshipped in the temples of Isis
and Serapis, a healer of the
sick, and also of their son, Horus, who was usually
called Harpocrates by the Greeks and pictured with his finger held to his mouth.
The name for medicine,
ars muta
(dumb art), is used in Roman poetry by
Virgil in
Aeneid
13
XII
. The Pythagorean school in Greece, to which medical men
especially belonged, considered silence as one of the most important
virtues."
According to the rules of the SA Medical and Dental Council ("the
Council") it amounts to unprofessional conduct to reveal "any information
which
ought not to be divulged regarding the ailments of a patient except with the
express consent of the patient". (Rule 16 is to
be found in Strauss,
Doctor,
Patient and the Law
, 3rd ed, p 454.)
The reason for the rule is twofold. On the one hand it protects the
privacy of the patient. On the other it performs a public interest
function.
This was recognised in
X v Y
[1988] 2 All ER 648
(QBD) 653 a-b where Rose
J said:
"In the long run, preservation of confidentiality is the only way of
securing public health; otherwise doctors will be discredited
as a source of
education, for future individual patients 'will
14
not come forward if doctors are going to squeal on them. Consequently,
confidentiality is vital to secure public as well as private
health, for unless
those infected come forward they cannot be counselled and self-treatment does
not provide the best care ..."
A similar view was expressed by the Supreme Court of New Jersey in
Hague v Williams
[1962] 181 Atlantic Reporter 2d 345 at 349:
"A patient should be entitled freely to disclose his symptoms and
condition to his doctor in order to receive proper treatment without
fear that
those facts may become public property. Only
thus can the purpose of the relationship be fulfilled."
The duty of a physician to respect the confidentiality of his patient is
not merely ethical but is also a legal duty recognised by
the common law. See
Melius de Villiers,
The Law of Injuries
, p 108. As far as present-day law
is concerned, the legal nature of
15
the duty is accepted as axiomatic. See e g
Sasfin
(Pty) Ltd v Beukes
1989 (1) SA 1
(A)
31F-33G;
Neethling,
Persoonlikheidsreg
, 3rd ed, p 236;
McQuoid-
Mason,
The Law of Privacy in South Africa
, p
193-4.
However, the right of the patient and the duty of
the
doctor are not absolute but relative. See
S v
Bailey
1981 (4) SA 187
(N) 189 F-G;
Sasfin
case
supra
;
Sage
Holdings Ltd v Financial Mail (Pty)
Ltd
1991 (2) SA 117
(W) 129H-131F;
Financial Mail
case
supra
at 462F-463B.
One is, as always, weighing up
conflicting interests
and, as Melius de Villiers
loc cit
fn
29 indicated, a
doctor may be justified in disclosing his
knowledge
"where his obligations to society would be of
greater
weight than his obligations to the individual"
because
"[t]he action of injury is one which
pro
publica
utilitate exercetur
". To determine whether
a
prima facie
invasion of the right of privacy
is
justified, it appears that, in general, the
principles
16
formulated in the context of a defence of justification in the law of
defamation ought to apply. See McQuoid-Mason,
op cit
, p 218; Neethling,
op cit
, p 247. It is therefore not surprising that the defences pleaded
by the first defendant in justification have the ring of defamation
defences
namely privilege, truth and public benefit and, in general terms, the
boni
mores
. On appeal no reliance was placed on the defence of truth and public
interest and nothing more need be said about it. The third alternative
was
formulated in the plea thus:
"Gemeet teen die algemene standaard van redelikheid (die
boni
mores
) soos van toepassing in die gemeenskap, die openbare belang en beleid
[was] die bekendmaking regverdig as 'n regmatige mededeling."
It does no more than to restate the general criterion for unlawfulness
(see the
Financial Mail
case
ibid
)
17
and adds nothing to the denial of wrongfulness. That leaves for
consideration the defence of privilege.
It is convenient for present
purposes to apply the test stated by Burchell,
Principles of Delict
, p
180, in the context of defamation to the defence of privilege of the sort now
under consideration:
"It is lawful to publish ... a statement in the discharge of a duty or
the exercise of a right to a person who has a corresponding
right or duty to
receive the information. Even if a right or duty to publish material and a
corresponding duty or right to receive
it does not exist, it is sufficient if
the publisher had a legitimate interest in publishing the material and the
publishes had a
legitimate interest in receiving the material."
The duty or right to communicate and the reciprocal duty or right to
receive the communication, may be legal, social or moral. See
De Waal v
Ziervogel
1938 AD 112
at 121-122. (That case, it may be pointed out
in
18
passing, incorrectly assumed that privilege negatives
animus
iniuriandi
whereas the modern point of view is that it negatives
wrongfulness:
Borgin v De Villiers
1980 (3) SA 556
(A) 571 F-G;
Marais
v Richard
1981 (1) SA 1157
(A) 1167.) A legal duty to communicate would, for
example, exist in respect of the duty of a medical practitioner to testify in
court
(cf
Davis v Additional Magistrate Johannesburg
1989 (4) SA 299
(W)
303 E-I) or to disclose a notifiable disease in terms of section 45 of the
Health Act 63 of 1977. A social or moral duty is exemplified
in
Hague v
Williams supra
where it was held that knowledge of a child's pathological
heart condition was not of such a confidential nature that it prevented
the
physician from disclosing it extra-curially to an insurer to whom the parents
had applied for life insurance on the child.
There were two versions before the Court a quo concerning the
circumstances and nature of
19
the disclosure. Dr van Heerden testified, somewhat unwillingly, on behalf
of the plaintiff. (Dr Vos had consulted with both legal
teams, was available to
both, but was called by neither.) The first defendant testified on his own
behalf. According to van Heerden
the first defendant, towards the end of the
game of golf, mentioned that one of his patients had tested positive for HIV,
that he
was known to them and thereupon he identified the plaintiff by name.
After the disclosure, he (that is van Heerden) told the others
that the
plaintiff had consulted him some months earlier. Van Heerden believed that in
the circumstances then prevailing the information
was not conveyed in a
professional context and that although it was sensitive, it was not
confidential. He could not, however, deny
that the first defendant had requested
them to treat it in confidence. The first defendant's version was this: Vos had
been his patient
and the plaintiff's dentist.
20
He was therefore concerned that the plaintiff may have infected Vos. He
felt obliged to inform Vos of the plaintiff's condition to
enable him to
evaluate his own exposure to the virus. It was not, however, his intention to
discuss the matter at that stage with
him. Nevertheless, during the course of
the game a general discussion about HIV-infection took place and in order to
stress the immediacy
of the problem, he told the two that he had a patient,
known to all of them, who had been tested positively. Van Heerden then remarked
that he wondered whether it was not the plaintiff since he had consulted him
about an oral fungal infection. He confirmed the correctness
of van Heerden's
surmise and asked them to treat the information confidentially.
The trial court accepted the . first defendant's version. I have some
reservations about this finding but since the difference between
the two
versions appears to be relevant to motive only, I shall
21
for present purposes assume its correctness.
The plaintiff
also sought to hold the first defendant liable for an alleged disclosure by one
of his employees, Mrs Bibbey, to his
ex-wife, Adriana. The only direct evidence
relating to it was that of Adriana. Her version was that Mrs Bibbey had
telephoned her
in order to obtain the plaintiff's new telephone number in
Nylstroom and that in the course of the discussion the information was
passed.
Mrs Bibbey denied it and stated that she had not been in possession of the facts
when the discussion took place. Levy AJ
believed Mrs Bibbey and rejected the
evidence of Adriana and that of her parents who gave confirmatory evidence.
There is one insurmountable
obstacle in reversing these findings and that is
that Adriana's version under oath was in direct conflict with what she had told
the plaintiff during their conversation to which reference has been made
earlier. She could not explain her about-turn.
22
The likely reason for it was an intensified legal and emotional battle
between her and the first defendant relating to access to their
child. The case
must therefore be decided with reference to the disclosure on the golf
course.
The objective facts that are of relevance in assessing whether the
disclosure was justified, are these:
1. The HIV infection and AIDS-related illnesses are considered by many to
be the major health threat of our day. In a paper by the
head of the AIDS Centre
at the SA Institute for Medical Research, Mrs Christie (who testified for the
plaintiff) gave the following
graphic description:
"It is a modern day scourge which has
already claimed the lives of thousands of people worldwide. The World
Health Organisation estimates that between five to
23
ten million people are infected with the AIDS virus and that there will
be an exponential increase in the number of AIDS cases in
the next few years. In
the absence of a cure or vaccine, the only way to stop the spread of this deadly
disease is by prevention
of infection in the first place. This is clearly the
task of education which is the only current tool available to combat the AIDS
epidemic.
Although the concept of 'education for prevention' is not new, it takes
on special significance in the context of AIDS. For one thing,
there is
widespread ignorance and subsequent fear of the disease. The public is afraid of
AIDS and the media has also helped to reinforce
existing fear through
sensationalist and sometimes inaccurate coverage on the topic. This is largely
detrimental to society because
it is a well-documented psychological fact that
fear arousal is not conducive to learning or promoting behavioural change. In
fact,
fear elicits denial so that people tend to block out what they hear or
see. Another difficulty in promoting socially responsible
24
behaviour is that AIDS deals with so many taboo subjects including: sex,
blood, death, promiscuity, prostitution, abortion, homosexuality,
drug use, etc.
These taboos makes AIDS an uncomfortable subject to deal with and creates
impediments in the learning process."
2. Levy AJ described the nature of HIV-infection and the resultant AIDS
in these terms:
"A disturbing feature of HIV is that it has the characteristic that it
may remain for years in its host without showing any positive
symptoms in the
carrier. Antibodies in the carrier develop after about 3 months, but in the
interim, that carrier has become and
remains a potent source of infection
without demonstrating any of the symptoms of HIV and despite the absence of
antibodies. AIDS
is incurable and fatal and it probably is the greatest public
health threat of this century. There is a lack of information concerning
the
nature of the disease which has led to great fear amongst the public
generally
25
that it is easily transmittable and, of course, the fact that the disease
has evidenced itself chiefly amongst homosexual and bisexual
people has led to a
further intolerance by the community of the victims of the disease. The disease
is transmitted via body fluids,
chiefly blood, semen and mother's milk, as well
as the vaginal fluids. Saliva apparently, although the virus may be found in it,
would not carry sufficient of the virus to infect a recipient. It is also found
in urine and tears. With blood as a source of infection,
there was a great
spread of the disease amongst persons requiring blood transfusion,
notwithstanding their non-participation in high
risk behaviour and, in
particular, children have become its victims through infection through a blood
transfusion, particulary amongst
haemophiliacs. The spread of the disease
amongst persons practising normal sexual behaviour, presumably originating from
homosexuals
or bisexuals, or from persons who had become infected through
sharing drug injection apparatus with infected persons, has led to
a justifiable
fear, as indicated
26
earlier, that the spread of the disease will reach enormous proportions
in a comparatively short time. At present there appears to
be no cure for the
disease. Plaintiff had for some time been taking drugs thought to be of
assistance in combating or repressing
the activity of the virus, but as has been
observed, it nevertheless led to the onset of AIDS and his death during the
course of
the trial. It seems to be generally accepted for the present time that
there is no recognised cure for the disease, and any victim
of the virus who
reaches the AIDS stage, must expect his illness to be fatal. The likelihood of
advancing to the A.I.D. syndrome
is, apparently, very high. Some of the writers
to which I have been referred, speak of a 50 per cent chance, but of greater
importance
perhaps
in casu
is the fact that such persons, while
demonstrating no overt symptoms of the disease in the absence of blood tests, to
reveal the
presence of antibodies in the blood, nevertheless remain highly
infective of any sexual partner or recipient of their blood, whether
accidentally or by way of
27
transfusion, or through sharing needles in intravenous drug
taking."
3.
Even though the
virus is highly infective, it is far less infectious than many other common
viruses and can only be transmitted through
the exchange of certain body fluids,
viz semen, vaginal fluids and blood. The mode of spread of the infection
generally follows well-defined
routes namely unprotected sexual intercourse, the
injection of infected blood, the infection of an unborn foetus whilst in the
womb
and, in exceptional cases, the infection of a new-born baby through the
medium of breast milk.
4.
Not
a single case of occupationally acquired HIV has been confirmed in South Africa.
Although health care workers are therefore at
risk, the risk is small and arises
only if through
an
28
invasive procedure infected blood enters the worker's blood
stream.
5.
There are many
pathogens that are more infectious than HIV, such as hepatitis B, and a medical
practitioner must, in the course of
his ordinary practice, take steps to prevent
their spread. Some of them are usually sufficient to prevent the spread of HIV
in a
professional
context.
6.
There is a
reported instance in the USA of a dentist who infected one or more of his
patients but that was through the use of instruments
which he had used on
himself in somewhat extraordinary circumstances. But his own HIV infection was
not occupationally acquired.
7. Reference
has already been made to the Council's
rule 16 which is of general
application. In
29
addition, the Council formulated a guideline in 1989 (quoted by Strauss,
op cit
, p 17) in connection with HIV in these terms:
"The health care professions are fully aware of the general rules
governing confidentiality.
Council is confident that if doctors fully discuss with patients the need
for other health care professionals to know of their condition,
in order to
offer them optimal treatment and also to take precautions when dealing with
them, the reasonable person of sound mind,
will not withhold his consent
regarding divulgence to other health care workers.
If having considered the matter carefully in the light of such
counselling, the patient still refuses to have other health care workers
informed, the patient should be told that the doctor is duty bound to divulge
this information to the other health care workers concerned
with the patient.
All persons receiving such information must of
30
course consider themselves under the same general obligation of
confidentiality as the doctor principally responsible for the patient's
care.
If it were found that an act or omission on the part of a medical
practitioner or dentist had lead to the unnecessary exposure to
HIV infection of
another health care worker, the Council would see this in a very serious light
and would consider disciplinary action
against the practitioner
concerned."
An important aspect of it is that the patient has
to be informed of the doctor's obligation to make
a
disclosure. That gives the patient the
opportunity to say why it is
in fact not
necessary - something that the plaintiff was
denied. The first defendant not only did not
seek to obtain the plaintiff's consent to a
disclosure; to the contrary, he promised not to
divulge the information.
31
8.
The prestigious
College of Medicine has a similar
guideline.
9.
There are some
medical practitioners who refuse to treat known infected patients out of fear
for their safety.
10.
There
are in the case of HIV and AIDS special circumstances justifying the protection
of confidentiality. By the very nature of the
disease, it is essential that
persons who are at risk should seek medical advice or treatment. Disclosure of
the condition has serious
personal and social consequences for the patient. He
is often isolated or rejected by others which may lead to increased anxiety,
depression and psychological conditions that tend to hasten the onset of
so-called full-blown
AIDS.
32
11.
Section 45 of
the Health Act empowered the Minister of Health to declare any medical condition
to be a notifiable medical condition
presumably in order to promote public
health. Diseases that have been declared in terms of this provision include
cholera, leprosy,
malaria, measles, poliomyelitis, tuberculosis and viral
hepatitis. HIV infection or AIDS-related diseases are, on the other hand,
not
notifiable diseases.
12.
Dr
van Heerden had treated the plaintiff once only. That was in January 1990 during
the first defendant's absence. He diagnosed, as
mentioned, an oral fungal
infection. It was a minor problem which, he said, would normally respond
promptly to appropriate treatment.
There was no
evidence
33
of an intrusive procedure having been performed or of any risk having
been created.
13.
The plaintiff
had consulted Dr Vos in his professional capacity prior to and during September
1987 but not since. There is no evidence
of the nature of any procedure carried
out by Vos on the plaintiff whether of a risky nature or
not.
14.
The plaintiff had
settled in Nylstroom a few months before the disclosure on the golf
course.
The first defendant's plea is
silent in relation to the facts on which he wished to rely in support of his
defence. In evidence (some
of what follows has already been recounted) his case
was that he had been aware of the dangers of AIDS and had wished to warn Vos
against any possible "retrospective exposure"
34
to the virus because Vos was also his dentist, was unhygenic in his
practice and was his patient. ("Retrospective exposure" was the
first
defendant's
imprecise description of the possibility that the
plaintiff had infected Vos before he was diagnosed as HIV positive.) As far as
the
disclosure to van Heerden is concerned, his evidence is not clear but it
seems to have been his contention that it was made because
van Heerden had been
involved professionally with the plaintiff. Let me immediately state that the
allegation that Vos was an unhygenic
dentist is, in the light of the first
defendant's subsequent conduct, false. After having disclosed the plaintiff's
condition to
Vos, he did not even advise him to have himself tested nor did he
establish whether Vos had done so. And in spite of this he and
his present wife
continued to use Vos's services even though Vos allegedly had not changed his
methods.
35
Although justification is an objective question (see
Borgin v De
Villiers supra
at p 577 E-G;
Delange v Costa
1989 (2) SA 857
(A) 862
E-F), Levy AJ considered the first defendant's motive in making the
communication to be of paramount importance; but he did
not find that the
"retrospective exposure" of Vos or van Heerden justified it. As to Vos, his view
was that as far as the first defendant
knew the plaintiff was still his dentist
and was likely to treat him in future. It was also likely that he would not, on
such occasion
have informed Vos of his condition in spite of having been advised
otherwise by Mrs Christie. As to van Heerden, it was held (contrary
to an
earlier finding) that the first defendant had been unaware of the treatment
during January. Nevertheless, since van Heerden
was one of a group of 16 doctors
in Brakpan who were on call from time to time for all off-duty practitioners in
town, it was required
that he should be informed for his own sake
36
as well as for the better treatment of the plaintiff, should the occasion
arise.
Concerning these findings a number of points arise. First,
since one is dealing with the issue of wrongfulness, the first defendant's
honesty,
bona fides
and motive (except, possibly, if malice is in issue)
are beside the point. See
De Waal v Ziervogel supra
at 122-3;
Delange
v Costa supra
at 862 D-E and compare
Tsose v Minister of Justice
1951
(3) SA 10
(A) 17. Second, at the time of the disclosure the plaintiff had moved
to Nylstroom and the likelihood of him calling upon the services
of either Vos
or van Heerden was remote. If the argument is taken to its logical conclusion
health care workers, at least those in
Transvaal, would have to be informed.
Third, there was no factual basis for the finding that the plaintiff would have
failed to inform
his future medical attendants of his illness. The evidence was
merely that he did not wish to return to
37
Vos for treatment because he did not want to advise him of his condition
for fear of local gossip. Lastly, the court was in my view
correct in not
relying on the "retrospective exposure" because, as indicated, there was no
evidence of it in either instance.
In determining whether the first defendant had a social or moral duty to
make the disclosure and whether van Heerden and Vos had a
reciprocal social or
moral right to receive it, the standard of the reasonable man applies. See
De
Waal v Ziervoqel
,
ibid
;
Borgin v De Villiers
,
ibid
.
With that in mind, I am of the view that he had no such duty to transfer, nor
did van Heerden and Vos have the right to receive,
the information. At the risk
of repetition, and in summary, I see the matter in this light: AIDS is a
dangerous condition. That on
its own does not detract from the right of privacy
of the afflicted person, especially if that right is founded in the
doctor-
38
patient relationship. A patient has the right to expect due compliance by
the practitioner with his professional ethical standards:
in this case the
expectation was even more pronounced because of the express undertaking by the
first defendant. Vos and van Heerden
had not, objectively speaking, been at risk
and there was no reason to assume that they had to fear a prospective exposure.
As Levy
AJ stated, the real danger to the practitioner lies with the patient
whose HIV condition had not been established or (due to the
incubation period)
cannot yet be determined. In consequence I conclude that the communication to
Vos and van Heerden was unreasonable
and therefore unjustified and
wrongful.
That disposes of the issues as pleaded. Counsel for the first defendant
submitted, however, that, in spite of a failure to have raised
the absence of
animus iniuriandi
in the pleadings he should be
39
permitted to do so now. He did not dispute the applicability of the rule
laid down in the context of defamation in
Suid-Afrikaanse Uitsaaikorporasie v
O'Malley
1977 (3) SA 394
(A) 403 A-C, followed in
May v Udwin
1981
(1) SA 1
(A) 10 E-F namely:
"'n Blote ontkenning van die opset om te belaster sou onvoldoende wees om
'n eiser in staat te stel om te weet watter feite die verweerder
die Hof gaan
voorle, en daarom sal die verweerder, in sy pleit of nadere besonderhede, die
feite moet stel op grond waarvan hy beweer
dat hy nie die opset gehad het om te
belaster nie."
His argument was that the issue has been fully canvassed at the trial. I
disagree. As stated, the issue of justification was only
raised near the end of
the plaintiff's case and at no stage during his case was the issue of
animus
iniuriandi
even touched upon. The first defendant's evidence in chief did
not deal with it at all. Some questions put to him during cross-
40
examination elicited answers that, benevolently interpreted, indicated
that he was
bona fide
in imparting the information. That the questions
were directed at establishing the wrongfulness or otherwise of the disclosure
cannot
be doubted. The attention of plaintiff's counsel was never directed at
this new issue, probably because first defendant's did not
have it in
mind.
Without regard to the pleadings or the question of whether the matter had
been fully canvassed, Levy AJ, as it were in passing, also
non-suited the
plaintiff on the ground that he had failed to establish
animus iniuriandi
on the part of the first defendant. The learned Judge did not set out the
factual basis for his finding, and did not distinguish
wrongfulness from
animus iniuriandi
as this extract from his judgment
demonstrates:
41
"While the judgment of Rumpff CJ in
Administrateur Natal v Trust Bank
van Afrika Bpk
1979 (3) SA 824
(A) and, in particular, at 833-4, is confined
in its terms to a consideration of the existence of a duty of care owed by the
alleged
wrongdoer to the party injured, it is nevertheless apposite to a
consideration of the question whether first defendant could be said
in
casu
to entertain an
animus iniuriandi
or that the invasion of
plaintiff's rights of personality was wrongful, and in regard to the question of
'our ideas of morals and
justice and broadly whether plaintiff's invaded
interest is deemed worthy of legal protection against conduct of the kind
alleged
against first defendant.'"
But even if it is assumed in favour of the first defendant that the issue
was fully canvassed, I am nevertheless satisfied that he
did have the required
animus iniuriandi
. It is not necessary to set out all the reasons. The
essence of this defence as argued was that the first defendant truly believed
that due to Vos's alleged unhygenic procedures he (Vos) had been at
42
risk. I have already found that version to be false. In respect of van
Heerden the defence as submitted is dependent on a belief on
the part of the
first defendant that van Heerden, too, had been at risk. The first defendant
never suggested that in evidence. If
the first defendant had had no awareness of
wrongfulness and had believed that what he had done was proper, why did he
mislead the
plaintiff during their telephone conversation? It follows that that
defence, if it was one, must fail and that the appeal must
succeed.
In the light of its finding the trial court did not assess
the amount of damages suffered. Counsel were agreed that the matter should
not
be referred back to it for that purpose. There are good reasons for complying
with this request. Cf
Botes v Van Deventer
1966 (3) SA 182
(A) 191G-192B.
They are: only general damages are in issue, both parties have closed their
case, there are no factual disputes which
need to be
43
resolved, the plaintiff has died and the appellants at this stage do not
ask for a substantial award and costs of a further hearing
ought, if possible,
to be avoided.
It is extremely difficult in this matter to make such
an award because there are no obvious signposts. Nevertheless, the right of
privacy is a valuable right and the award must reflect that fact. Aggravating
factors include the fact that a professional relationship
was abused
notwithstanding an express undertaking to the contrary. So, too, the breach
created the risk of further dissemination
by others. The evidence also
established that the publication of a person's HIV condition increases mental
stress and that the plaintiff
was seriously distressed by the disclosure. And
stress hastens the onset of AIDS -something which may have occurred in this
instance.
On the other hand, the disclosure was limited to two
44
medical men who, it was reasonable to assume, would have dealt with the
information with some circumspection. The nature of the plaintiff's
condition
was in any event such that it would inevitably have become known at some stage.
He had, to an extent, already severed his
links with Brakpan. There is no
evidence that his friends ostracized or avoided him; it was rather a case of his
having chosen to
withdraw from society, something he would probably in any event
have done. In the light of all this I believe that R5 000,00 will
be a just
award.
The appellants are entitled to their costs of the appeal, inclusive of
the costs of two counsel. They are also entitled to a costs
order in the court
below on the Supreme Court scale. Special orders in respect to those costs are
sought and I proceed to deal with
them. The background facts are that, some
months after the plaintiff's telephone conversations with Mrs Adriana Kruger and
the first
defendant, he instituted
45
action against both defendants. At that stage he had no evidence as to
whether one or other or both (or their employees) had made
the disclosure. His
uncertainty is illustrated by a letter of demand written to Liberty Life
Insurance, accusing it of a breach.
About a week prior to the trial, the
plaintiff was apprised of the golf course conversation. Before the start of the
trial he withdrew
his action against the second defendant. The plaintiff and the
second defendant have incurred costs relating to these abortive proceedings
and
it was submitted that the first defendant should bear them. The reasons advanced
were that during the telephone conversation
the first defendant had falsely
denied his involvement and had, without good cause, implicated the second
defendant; and that he
had pleaded a denial which proved to be false.
The submission cannot be upheld. Since the second defendant is no longer
a party to the litigation,
46
the order sought on his behalf by the appellants must fail on that
account. As to the appellants own costs, it has not been shown
that the first
defendant's conversation was the
causa causans
of the action against the
second defendant because the same misleading information had been received from
Adriana; further, the plaintiff
in any event disbelieved the first defendant -
had he believed him, he would not have sued him. The denial in the plea was also
of
no consequence. It was tactical and the law of procedure recognises its
legitimacy. In any event, there is nothing to indicate that
the withdrawal of
the claim was not caused by the availability of evidence against the first
defendant and the absence of evidence
against the second.
A special award is also asked in respect of an answer given on behalf of
the first defendant in response to a question put at the
pretrial conference.
Suffice it to say that the answer was, to the knowledge
47
of the first defendant and his legal team, incorrect. When this was
raised during the course of the trial, Levy AJ put the complaint
aside on the
basis that the plaintiff had not been entitled to an answer. That may be so but
it does not mean that if a party decides
to answer unnecessarily he can misstate
facts. In spite of all this, the question to be answered is whether additional
costs were
caused by the answer. Counsel could not point to any. It follows then
that a special order is not justified on that account.
The appeal is upheld with costs, including those of two counsel and the
order of the Court
a quo
is amended to read "Judgment for plaintiff in
the sum of R5 000,00 with costs on the Supreme Court scale".
L T C HARMS
ACTING JUDGE OF APPEAL
JOUBERT, JA )
NESTADT, JA ) CONCUR
KUMLEBEN, JA )
NIENABER, JA )