Mohun and Another v Phillips N O on behalf of Shearer and Another

Mr David Robin Shearer, aged 43, was admitted to the emergency unit of Life Westville Hospital on 27 December 2014 after ingesting an unknown quantity of tablets combined with alcohol. He was examined by the first appellant, Dr Sudhir Mohun, a specialist physician engaged as a locum tenens by the second appellant medical practice. Although initially assessed as stable, Mr Shearer’s oxygen saturation levels deteriorated over time. He was not continuously monitored by the first appellant and was left in the care of nursing staff without detailed instructions. Mr Shearer became hypoxic, suffered a cardiac arrest, and sustained permanent brain damage. His curator ad litem and family sued Dr Mohun and the medical practice for damages based on alleged medical negligence. The hospital settled and was withdrawn from the action.

The appeal by the first appellant was dismissed with costs. The appeal by the second appellant was upheld with costs. The High Court order was set aside and replaced with an order holding Dr Mohun liable for 65% of the damages to be proved by Mr Shearer. The action against the second appellant medical practice was dismissed with costs, and the remaining claims were postponed sine die pending determination of quantum.

This case is significant for reaffirming the standard of care required of medical practitioners in emergency settings, particularly where overdose and hypoxia risks are present. It underscores that reliance on nursing staff without adequate instructions does not absolve a doctor from personal negligence. The judgment also strongly reaffirms South African law’s position that principals are generally not vicariously liable for the delicts of independent contractors and declines, in a medical context, to extend the common law to recognise a non-delegable duty of care.