Du Preez v Pretorius

The appellant (Du Preez) was diagnosed with testicular cancer and had his left testis surgically removed on 3 November 2010. Dissatisfied with his oncologist, he sought alternative treatment and consulted the respondent (Pretorius), a general practitioner who administered insulin potentiation therapy (IPT). The respondent treated the appellant with IPT between 10 November 2010 and 8 February 2011. During treatment, tumour markers (AFP and BHCG) initially decreased, but BHCG levels began rising from 11 January 2011 onwards. The appellant discontinued IPT treatment and consulted a conventional oncologist, Dr Rens, who administered four cycles of conventional BEP chemotherapy, after which the cancer went into remission. The appellant sued the respondent claiming damages arising from: (1) negligent misrepresentations inducing him to contract; (2) negligent breach of contract; and (3) negligent breach of legal duty arising from the doctor-patient relationship. The matter proceeded under Uniform Rule 33(4) with separation of issues. The High Court dismissed the claim, and the appellant appealed with leave.

• Whether the respondent made negligent misrepresentations that induced the appellant to contract for IPT treatment
• Whether the three alleged representations were made and proved to be false
• Whether any negligent conduct by the respondent caused the appellant's damages
• Whether causation was established between any alleged negligence and the need for conventional chemotherapy
• Whether damages flowed from any breach of contract or delictual duty

The appeal was dismissed with costs, including costs occasioned by the employment of two counsel.

In a claim for medical negligence, whether founded in contract or delict, the plaintiff must prove not only that the defendant was negligent, but also that the negligent conduct caused the plaintiff to suffer damages. Negligence without proof of causation is insufficient to establish liability—this constitutes "negligence in the air." Where a plaintiff pleads a specific causal chain (that negligence caused the condition not to be cured and resulted in the need for further treatment), failure to prove that causal link is fatal to the claim, regardless of whether negligence can be established. For a claim based on negligent misrepresentation to succeed, the plaintiff must prove: (1) that the representations were made; (2) that they were false; (3) that they were made negligently; (4) that they induced the contract; and (5) that damages flowed therefrom. Where multiple representations are pleaded conjunctively (not in the alternative) as together inducing the contract, all must be proved.

The court made obiter observations regarding the proper application of Uniform Rule 33(4). It emphasized that when rule 33(4) is applied for separation of issues, the issues for determination should be formulated clearly and set out in a court order. The trial court's failure to properly determine whether any damage was caused by the respondent's conduct was noted as resulting from an inappropriate approach to the separation of issues, leaving litigants and the court in an invidious position. The court also noted, without deciding, that the relationship between a doctor and patient can give rise to concurrent actions in contract and delict on the same facts, citing Lillicrap, Wassenaar & Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 (1) SA 475 (A).

This case is significant in South African law for several reasons: (1) It clarifies the requirements for establishing medical negligence claims, particularly the essential element of causation; (2) It demonstrates that proof of negligence alone is insufficient without establishing a causal link between the negligent conduct and the damages suffered; (3) It illustrates the principle that where causation as pleaded is not established, alleged negligence becomes "negligence in the air" and the claim must fail; (4) It provides guidance on the proper application of Uniform Rule 33(4) regarding separation of issues, emphasizing that issues must be clearly formulated in a court order; (5) It addresses claims involving alternative medical treatments and the standard of proof required for misrepresentation in the medical context; (6) It reinforces that in professional negligence cases based on concurrent contractual and delictual liability, causation remains an essential element for both causes of action.