On 25 November 2014 the Supreme Court of Appeal (SCA) delivered a definitive judgment which leaves the door open for the res ipsa loquitur maxim to be applied in medical negligence cases.

Res ipsa loquitur (the thing/occurrence speaks for itself), broadly stated, is used to describe the proof of facts which are sufficient to support an inference that a defendant was negligent. The impact of the res ipsa loquitur maxim is that if certain events create a presumption of negligence, and the defendant fails to provide sufficient evidence to the contrary, a finding of negligence will result.

For years our South African courts have refused to apply the res ipsa loquitur maxim in medical negligence cases following the widely accepted decision in Van Wyk v Lewis 1924 AD 438.

In the case of Goliath v The MEC for Health in the Province of Eastern Cape, which dealt with a surgical swab left in Ms Goliath's abdomen by medical staff under the employ of the MEC, the SCA held that:

  • at the close of Ms Goliath's case there was sufficient evidence which gave rise to an inference of negligence on the part of one or more of the medical staff under the employ of the MEC; and
  • as the MEC did not adduce any evidence, an inference may be justified that the MEC feared that if one or more of the medical staff gave evidence, it would expose facts unfavourable to his case.

Although the SCA did not deal with the res ipsa loquitur maxim in a manner that accepts its application outright, it has also not negated the effects thereof in medical negligence cases.

It has become more important than ever for defendants in medical negligence cases to counter any inference a court may draw from the evidence adduced by a plaintiff by putting up a solid and well-founded defence circumventing any conclusions drawn from an inference.