Jansen van Vuuren and Another NNO v Kruger

• Jurisdiction: South Africa
• Judgment Date: 28 September 1993
• Citation: 1993 (4) SA 842 (A)

Jansen van Vuuren and Another NNO v Kruger
1993 (4) SA 842 (A)

1993 (4) SA p842

Citation	1993 (4) SA 842 (A)
Court	Appellate Division
Judge	Joubert JA, Nestadt JA, Kumleben JA, Nienaber JA and Harms AJA
Heard	September 3,1993
Judgment	September 28, 1993

Flynote : Sleutelwoorde H

Delict — Injuria — Infringement of right to privacy — Public disclosure of private medical facts — Plaintiff's general medical practitioner having disclosed to another general practitioner and dentist from same town that plaintiff, who was known to the latter two persons, had AIDS — I Plaintiff having specifically requested defendant not to disclose that he had AIDS and defendant having agreed not to do so — Defendant having no duty to disclose such information and other general practitioner and dentist having had no right to receive it — Fact that AIDS a dangerous condition not detracting from afflicted person's right of privacy, J especially where founded

1993 (4) SA p843

A on doctor-patient relationship — Defendant's disclosure unreasonable and therefore unjustified and wrongful — Plaintiff awarded damages of R5 000.

Headnote : Kopnota

One M, who had contracted AIDS, instituted, in a Local Division, an action for damages in an amount of R50 000 for breach of privacy against his B general medical practitioner, the respondent, because the latter had allegedly disclosed M's condition to two of his colleagues. When M died, during the course of the trial, of an AIDS-related disease, the appellants were appointed executors of his estate. The Court a quo dismissed the claim but granted leave to appeal. It appeared that M had been required to submit a blood sample for an HIV test in order to qualify for life insurance. The result was positive and the respondent was notified accordingly. He in turn arranged an appointment with M and informed him of C the result of the test. M requested the respondent to keep it confidential, which the respondent agreed to do. The next day, however, the respondent during the course of a game of golf disclosed M's condition to one H, another general practitioner, and one V, M's dentist. M and these three doctors had moved in the same social circle in the town in which they all lived. The news spread and M, having realised that there had been a leak, instituted proceedings against the respondent and the owner of the laboratory which had performed the blood test in question D (the second defendant in the Court a quo). (The action against the second defendant was subsequently withdrawn.) M's case was pleaded in the following terms: the respondent, as M's general medical practitioner, had owed him a duty of confidentiality and when he became aware of M's HIV status he was obliged, in terms of the agreement which established the doctor-patient relationship, to treat this information in a confidential manner; in breach of this agreement and in breach of his professional duties the respondent had 'wrongfully and unlawfully' disclosed the test E results to third parties; and in consequence the plaintiff had suffered an invasion of, and had been injured in, his rights of personality and right to privacy. The respondent admitted the existence of the professional relationship, his duty to respect the plaintiff's confidence and the term of the agreement as alleged, but raised the absence of wrongfulness on three alternative bases: (a) the communication had been made on a privileged occasion, (b) it was the truth and was made in the public F interest, and (c) it was objectively reasonable in the public interest in the light of the boni mores. On appeal no reliance was placed on (b). It was argued on behalf of M 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 was not an element (this was done in order to counter in advance a submission that animus iniuriandi had not been established). The argument was premised on the fact that the term of the contract was common cause and it proceeded on G the assumption that there was no reason why the breach of an agreement not to commit an iniuria ought not to be actionable by a claim for damages.

Held, that although the Court was prepared to assume for the purposes of argument that the breach of an agreement not to commit an iniuria was so actionable, this did not derogate from the principle that only patrimonial damages could be recovered on the strength of a breach of contract.

Held, further, that the claim in the present case was one for sentimental H damages, so that it was not the breach of the contract (which merely provided the origin of the doctor-patient relationship) that created the delictual liability, but the breach of the rights and duties that arose from the resultant professional relationship so that the true cause of action in the instant case was the actio iniuriarum.

Held, further, that it had been clearly established that a plaintiff who relied on the actio iniuriarum had to allege animus iniuriandi, although I the averment did not need to be express where the iniuria was obviously an infringement of personality or the facts pleaded allowed of an inference of the required animus iniuriandi.

Held, further, that counsel for the respondent had in any case accepted that M could not be non-suited for having failed to make such an express allegation since it had always been respondent's understanding that this was M's case.

Held, further, that a physician's legal duty to respect the confidentiality of his patient the legal nature of which was today J accepted as axiomatic was not absolute, but

1993 (4) SA p844

A relative: a doctor could be justified in disclosing his knowledge where his obligations to society were of greater weight than his obligations to the individual.

Held, further, that in order to determine whether a prima facie invasion of the right of privacy was justified, the principles formulated in the context of justification in the law of defamation were in general applicable.

Held, further, as to the defence of privilege, that it negatived wrongfulness, and that a duty or right to communicate and the reciprocal B right or duty to receive the communication could be of a legal, social or moral nature.

Held, further, as to whether the disclosure had been justified in the instant case, that in determining whether the respondent had a social or moral duty to make the disclosure and whether H and V had a reciprocal C social or moral right to receive it, the standard of the reasonable man applied.

Held, further, that the respondent had had no such duty to transfer, nor did H and V have the right to receive, the information: the fact that AIDS was a dangerous condition did not detract from the right of privacy of the afflicted person, especially if that right was founded in the doctor-patient relationship.

Held, further, that in the instant case the patient's normal right to expect due compliance by his physician with his professional ethical standards had been enhanced by the respondent's express undertaking not to divulge M's status.

D Held, further, that neither H nor V had, objectively speaking, been at risk and that there was no reason to assume that they had to fear a prospective exposure.

Held, further, that the communication to H and V had been unreasonable and therefore unjustified and wrongful.

Held, further, that although the issue had not been fully canvassed in the Court a quo (the respondent having failed to raise the absence thereof either in his pleadings or his evidence-in-chief), it also appeared that E the respondent had had the required animus injuriandi: the defence as argued, viz that the respondent had believed that H and V had been at risk, was not supported by the evidence.

Held, further, that the appeal accordingly had to succeed. R5 000 damages awarded.

The decision in the Witwatersrand Local Division in Jansen van Vuuren and Another NNO v Kruger reversed.

Case Information

F Appeal from a decision in the Witwatersrand Local Division (Levy AJ). The facts appear from the judgment of Harms AJA.

E Cameron (with him D I Berger) for the appellant referred to the following authorities: Botha v Botha 1972 (2) SA 559 (N) at 560; Dantex Investment Holdings (Pty) Ltd v Brenner and Others NNO 1989 (1) SA 390 (A) at 396A-I; Davis v Additional Magistrate, Johannesburg, and Others 1989 (4) SA 299 (W) G ; Delange v Costa 1989 (2) SA 857 (A) at 860-1, 862E-F; De la Rouviere v SA Medical and Dental Council 1977 (1) SA 85 (N); Fayd'herbe v Zammit 1977 (3) SA 711 (D) at 719-20; Groenewald v South African Medical Council 1934 TPD 404 at 410 and 415; Helgesen v South African Medical and Dental Council 1962 (1) SA 800 (N) at 823-4; Joubert v Venter 1985 (1) SA 654 (A) H at 696D-697H; La Grange v Schoeman and Others 1980 (1) SA 885 (E) at 892-4; Marais v Richard en 'n Ander 1981 (1) SA 1157 (A) at 1168C-E; Nieuwoudt v Joubert 1988 (3) SA 84 (SE) at 90-1; Pretorius v Suid-Afrikaanse Geneeskundige en Tandheelkundige Raad 1980 (2) SA 354 (T) at 358J-359A; Ramsay v Minister van Polisie en Andere 1981 (4) SA 802 (A) I at 818B-819C; Rosenberg v South African Pharmacy Board 1981 (1) SA 22 (A) at 33, 34A-B; South African Pharmacy Board v Norwitz 1982 (2) SA 674 (A) at 681-3; S v A and Another 1971 (2) SA 293 (T) at 297D-E, 297H, 299C; S v Bailey 1981 (4) SA 187 (N); Sage Holdings Ltd and Another v Financial Mail (Pty) Ltd and Others 1991 (2) SA 117 (W) at 129A-131F, 132I-J; Sasfin (Pty) Ltd v Beukes 1989 (1) SA 1 (A) at 31F-33G; Stoffberg v Elliott 1923 J CPD 148 at 149; Universiteit van

1993 (4) SA p845

A Pretoria v Tommie Meyer Films (Edms) Bpk 1977 (4) SA 376 (T) at 381-3; Van Wyk v Lewis 1924 AD 438 at 443-4, 455-6; Veriava and Others v President, SA Medical and Dental Council, and...