Abstract
It is trite law, in context of medical negligence, that the onus of establishing civil liability on the doctor’s part lies with the patient and liability must be established on a preponderance of probabilities. It is to be noted that, should the plaintiff be unable to prove his/her case on a preponderance of probabilities, judgment will be given in favour of the defendant; a court may, however, also order absolution fromthe instance. In delict, the plaintiff bears the onus to prove a wrongful act/omission on the part of the physician, as well as the element of fault (in the form of negligence) and that the act or omission caused him to suffer damages or personal injury. Where a defendant raises a special defence such as consent, contributory negligence or prescription, the onus of proof will be on the defendant. Generally, however, the application of the maxim of res ipsa loquitur is treated by the courts as a particular form of inferential reason, requiring careful scrutiny and giving rise to an inference of negligence rather than a presumption of negligence. The South African courts thus far have been reluctant to apply the maxim to cases of medical negligence, despite persuasive legal arguments that have been put forward that the maxim should be applied in specific circumstances with regard to the proof of medical negligence. In this respect general principles for the effective application of the maxim in cases of medical negligence, are, inter alia, that principles of procedural equality and constitutional considerations dictate that the maxim be applied in cases of medical negligence. It is for this reason that the present judgment under discussion (in tandem with s 27 of the Constitution) is instructive, despite the majority judgment of the Appellate Division (as it wasthen) in 1924, in Van Wyk v Lewis (supra), where it was held that the maxim does not find application in cases of medical negligence.
Highlights
Where a defendant raises a special defence such as consent, contributory negligence or prescription, the onus of proof will be on the defendant – see Schmidt Bewysreg 41 and 132; Hoffmann and Zeffertt The South African Law of Evidence 530ff; Mabaso v Felix 1981 (3) SA 865 (A); and Joubert v Combrinck 1980 (3) SA 680 (T))
The South African courts far have been reluctant to apply the maxim to cases of medical negligence, despite persuasive legal arguments that have been put forward that the maxim should be applied in specific circumstances with regard to the proof of medical negligence
In this respect general principles for the effective application of the maxim in cases of medical negligence, are, inter alia, that principles of procedural equality and constitutional considerations dictate that the maxim be applied in cases of medical negligence (see Carstens “Die Strafregtelike en Deliktuele Aanspreeklikheid van die Geneesheer op Grond van Nalatigheid”; Van den Heever “The Application of the Doctrine of res ipsa loquitur to Medical Negligence Actions”; Van den Heever “Res ipsa loquitur and Medical Accidents: quo vadis?” 1998 De Rebus 57; Carstens and Pearmain Foundational Principles of South African Medical Law 857; Van den Heever and Carstens Res ipsa loquitur and Medical Negligence (2011) 9ff; cf Pringle v Administrator Transvaal supra)
Summary
In context of medical negligence, that the onus of establishing civil liability on the doctor’s part lies with the patient and liability must be established on a preponderance of probabilities (see in general Claassen and Verschoor Medical Negligence in South Africa (1991) 26; Hoffmann and Zeffertt The South African Law of Evidence (1992) 26; Schmidt Bewysreg (2000) 23ff; Scwikkard and Van der Merwe (eds) Beginsels van die Bewysreg (2005) 546– 558; Strauss and Strydom Die Suid-Afrikaanse Geneeskundige Reg (1967) 274ff; Strauss “Medical Law – South Africa” in Blanpain and Nys (eds) International Encyclopaedia of Laws (2006) par [178]; Carstens and Pearmain Foundational Principles of South African Medical Law (2007) 619ff; Strauss “Geneesheer, Pasiënt en Reg: ’n Delikate Driehoek” 1987 TSAR 1; compare Lee v Schönnberg (1877) 7 Buch 136; Mitchell v Dixon 1914 AD 519; Webb v Isaac 1915 EDL 273; Coppen v Impey 1916 CPD 309; Dale v Hamilton 1924 WLD 184; Van Wyk v Lewis 1924 AD 438; Buls v Tsatsarolakis 1976 (2) SA 891 (T); Blyth v Van den Heever 1980 (1) SA 191 (A); Pringle v Administrator Transvaal 1990 (2) SA 379 (W); Castell v De Greef 1994 (4) SA 408 (C); Broude v McIntosh 1998 (3) SA 60 (SCA); and Louwrens v Oldwage 2006 (2) SA 161 (SCA). The South African courts far have been reluctant to apply the maxim to cases of medical negligence, despite persuasive legal arguments that have been put forward that the maxim should be applied in specific circumstances with regard to the proof of medical negligence In this respect general principles for the effective application of the maxim in cases of medical negligence, are, inter alia, that principles of procedural equality and constitutional considerations dictate that the maxim be applied in cases of medical negligence (see Carstens “Die Strafregtelike en Deliktuele Aanspreeklikheid van die Geneesheer op Grond van Nalatigheid” (unpublished LLD thesis, University of Pretoria, 1996); Van den Heever “The Application of the Doctrine of res ipsa loquitur to Medical Negligence Actions” (unpublished LLD thesis, University of Pretoria, 2002); Van den Heever “Res ipsa loquitur and Medical Accidents: quo vadis?” 1998 De Rebus 57; Carstens and Pearmain Foundational Principles of South African Medical Law 857; Van den Heever and Carstens Res ipsa loquitur and Medical Negligence (2011) 9ff; cf Pringle v Administrator Transvaal supra). It is for this reason that the present judgment under discussion (in tandem with s 27 of the Constitution) is instructive, despite the majority judgment of the Appellate Division (as it was ) in 1924, in Van Wyk v Lewis (supra), where it was held that the maxim does not find application in cases of medical negligence
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