The res judicata and once and for all rules in our common law work hand in hand to protect a defendant from constant attack for the same alleged negligence.

The rules have long been part of our law. The res judicata rule provides that once a competent Court has made a ruling on a cause of action the plaintiff cannot litigate again on the same facts. On a similar theme the once and for all rule ensures that a plaintiff must claim all damages flowing from the same cause of action in one action and bars the plaintiff from claiming more damages after a ruling has been made. Therefore, when a litigant claims damages they only have this one chance to do so.

In medical malpractice claims the once and for all rule has been criticized but no defendant has successfully challenged it. The rule in a nutshell forces the litigants and the Court to predict the future requiring the Court often to award large lump sums of money. The damages award must then be paid to the plaintiff in one go.

The Court has to make a decision on how much money to award to the plaintiff for future medical and hospital expenses plus loss of earnings. This means the Court has to calculate how long the plaintiff will live and all the future expenses and earnings which may or may not be incurred by the plaintiff. This is problematic for many reasons. The Court may award too little and then the plaintiff has a shortfall of money available for medical expenses or the plaintiff may not live long enough to use all the money awarded to them. There is a further complication when the plaintiff is a minor and the parents are given a large amount of money for the care of the child. This brings its own problems in that the parents may not use the money for its intended purpose or are not in a position to manage the money in a sustainable way.

In MEC, Health and Social Development, Gauteng v DZ [2017] ZACC, the Constitutional Court was approached to develop the once and for all rule by the MEC, asking the Court to grant judgement where the damages are paid directly to service providers for medical expenses incurred by the plaintiff. Damages awarded in this matter was for R23 272 303 of which R19 970 631 was for future medical expenses. The MEC wanted to pay for medical expenses as they arise instead of all the money at one time. So it to say that the once and for all rule should not apply as the defendant would not be paying a lump sum but to pay for medical expenses as and when incurred. This approach by the MEC was rejected by the High Court, the Supreme Court and the Constitutional Court.

This type of approach has been agreed on between parties and endorsed by the Courts in settlement agreements. The judgement sought however required the Court to develop the common law which it declined to do. This begs the question, should it not be changed, should the law not be amended so that it is possible for defendants to pay the damages awarded for future medical expenses in instalments or as and when the damages arise? The Court left the door open to develop the law in future cases.

There are alternative methods to claim compensation from the alleged wrong doer. One of these methods is mediation. Mediation is a tool where parties can decide together the outcome of the matter and are in control of how the damages are paid and awarded. This solves the problems highlighted above. This method of dispute resolution though is not compulsory. The Courts remain the preferred method of recourse in contentious medical malpractice cases. Traditional litigation can be slow, expensive and may feel like a loss even if you are on the winning side. The law makers ought to hear the pleas of the defendants’ to change the method of payment of damages and develop the law to consider the best interests of society. The legal representatives should be aware that there may be better ways of ensuring the best interests of their clients are advanced by advising ways of resolving disputes which give more and speedier control to the parties in deciding what they are entitled to. The once and for all rule should not be holding the parties hostage as it currently appears it is.