It has until recently been accepted that the maxim of res ipsa loquitur (the facts speak for themselves) does not find application in cases involving medical negligence in accordance with the findings of the Appeal Court in the matter of Van Wyk v Lewis [1924 AD 438]. This position was recently reconsidered by the Supreme Court of Appeal (“SCA”) in the matter of Goliath v MEC for Health, Eastern Cape 2015 (2) SA 97 (SCA).
Generally speaking, for a plaintiff to succeed with his case, he carries the onus to prove on a balance of probabilities that the defendant was, inter alia, negligent. In matters involving allegations of medical negligence, this would mean that the plaintiff has to prove that the defendant’s conduct did not meet the general level of skill and diligence possessed and exercised at the time by members of the defendant’s profession.
The maxim of res ipsa loquitur provides for instances where a court may, on the mere facts presented to it, draw an inference of negligence against the defendant in instances where the incident in question could not have occurred in the absence of negligence. The application of the maxim was expressed in the matter of Sardi & others v Standard General Insurance Co Ltd 1977 (3) SA 776 (A) as “where the only known facts, relating to negligence, consist of the occurrence itself”.
Certain requirements have crystallised over the year in case law, many of which relate to motor vehicle accidents, regarding the application of the maxim. These include:
• The facts of the matter must be such as to give rise to an inference of negligence on the part of the wrongdoer. The Court in the matter of Stacey v Kent 1995 (3) SA 344 (E) held that the maxim “gives rise to an inference, not a presumption of negligence”. It further held that a court is not compelled to draw the inference.
• The maxim can only be invoked where the negligence depends on absolutes. The matter of Pringle v Administrator, Transvaal 1990 (2) SA 379 (W) involved the tearing of the plaintiff’s superior vena cava during surgery. The court held that, if the evidence presented was such as to show that the mere fact of the perforation indicated negligence, the maxim could be applied. However, on the particular facts of the case no such evidence emerged and, as such, the maxim did not find application. On this basis, the question of negligence had to be decided on all the surrounding circumstances of the case.
• The maxim may assist a plaintiff who has little or no evidence at his disposal to persuade a court of the defendant’s negligence. This is particularly so in instances where the facts of the incident are solely under the control of or within the knowledge of the defendant. It assists the plaintiff in these instances in that the defendant cannot hide behind his own silence to the detriment of the plaintiff by not giving evidence.
• Once the plaintiff has proven the incident from which the inference of negligence on the part of the defendant is drawn, the defendant has the opportunity to adduce evidence to show that the incident did not occur due to negligent conduct on his part. To quote the learned Judge in the Stacey case: “. . . he [referring to the defendant] must tell the remainder of the story or risk judgement being given against him.” In the absence of an acceptable explanation as to why the defendant was not negligent, a court may make a finding of negligence against him.
• The court in the Stacey case further held that the defendant’s explanation must have “substantial foundation in fact” and must be sufficient to eradicate any inference of negligence made by the court. Insofar as the assessment of the applicability of the maxim is concerned, the defendant does not, however, carry an onus to prove on a balance of probabilities the correctness of his explanation. Only once all the evidence is considered at the end of the case will aspects such as the probability and credibility of the defendant’s version be taken into account.
• The maxim has no bearing on the onus of proof, which remains that of the plaintiff (Madyosi v SA Eagle Insurance Co Ltd 1990 (3) SA 442 (A)). The court in the Sardi matter warned against a piecemeal approach of “(a) first drawing the inference of negligence from the occurrence itself, and regarding this as a prima facie case; and then (b) deciding whether this has been rebutted by the defendant’s explanation”. The court held that, just as would be the case in any other matter involving negligence, at the end of the trial it has to decide whether the plaintiff has discharged his onus of proving negligence on a balance of probabilities having regard to all the evidence, the probabilities and the inferences drawn.
The question of the application of the maxim in medical negligence cases again came before the SCA in the matter of Goliath v MEC for Health, Eastern Cape 2015 (2) SA 97 (SCA). Coincidentally, this case, as with the Van Wyk matter, involved a swab being left behind in the patient’s body following surgery. In the appellant’s case, it was a gauze swab left behind during a routine hysterectomy for a fibroid uterus. The appellant had to subsequently undergo a laparotomy performed by a certain Dr Muller for removal of the gauze and sued the respondent as the employer of all the medical staff involved (the medical practitioners and the nursing staff) in the surgery.
Both the appellant and Dr Muller testified in support of the appellant’s case. Dr Muller testified that “leaving an abdominal swab in the abdomen invariably causes abdominal infections” and that “it should not happen ever”. He further testified that “it’s . . . a very rare situation to have a swab left in an abdomen after an operation” as there are strict procedures to be followed at all times after surgery to ensure that all swabs are accounted for to avoid exactly the appellant’s situation.
No witnesses were called by the Respondent.
The court a quo dismissed the appellant’s action on the basis that she failed to discharge the onus of proving negligence, however, granted leave to appeal. In its decision, the court a quo held that it is bound by the decision in the Van Wyk case in accordance with the stare decisis legal precedent system and had no alternative but to apply the findings of that judgement to the effect that the maxim does not apply to medical negligence cases. Judge Lowe, however, commented that had he been entitled to rely on the said maxim, the outcome may have been different as “the absence of an explanation by the defendant may well have been sufficient, by way of inferential reasoning, to establish negligence on the part of the medical staff concerned”.
The SCA in its judgement opined that it may well be time for us to eliminate the term res ipsa loquitur from our legal vocabulary. It summarised the nature and requirements of the maxim as crystallised in case law and discussed above. The court reiterated that a piecemeal approach as warned against in the Sardi matter should not be adopted and that the question at the end of the case remains whether a plaintiff has, when regard is had to all the evidence led, probabilities and inferences, discharged his onus to prove negligence on the part of the defendant.
The SCA reiterated that it depends on the facts of every particular case as to whether and inference of negligence is justified and to what extent expert evidence is necessary. It further reiterated that a court is not called to decide the issue of negligence until such time as all evidence has been led. As such, any explanation proffered by the defendant would form part of the evidential material to be considered in deciding whether the plaintiff has proved negligence.
Turning to the facts of the particular case, the SCA held that the matter must be approached on the basis that one of the swabs was not removed following surgery as it could not have found its way into the appellant’s abdomen in any other way. As the appellant was under general anaesthetic during the surgery, she did not have full knowledge of what occurred during the operation. The facts of what occurred during surgery were solely within the knowledge of the respondent’s employees, none of whom were called to testify. As such, no evidence was led as to whether a swab count did indeed take place prior to completing the surgery, whether the strict protocols that Dr Muller alluded to had been followed, the level of training of the particular employee responsible for the swab count, etc.
The SCA emphasised that it is not necessary for a plaintiff in a civil case to prove that the inference she seeks the court to draw is the only reasonable inference. It suffices for her to convince the court that the inference is the “most readily apparent and acceptable inference from a number of possible inferences”.
The SCA held that the appellant adduced sufficient evidence for an inference of negligence to be drawn against the employees of the respondent involved in her surgery. The respondent, by failing to adduce any evidence whatsoever to show that reasonable care was indeed taken during the surgery, took the risk of judgement being given against him. The court further drew a negative inference against the respondent that his failure to call the relevant employees to testify could be indicative of a concern that their evidence would expose unfavourable facts.
The SCA found that the appellant discharged her onus to prove her case on a balance of probabilities when regard is had to all the evidence, probabilities and inferences and upheld the appeal with costs.
It would therefore appear that the SCA in the Goliath matter has overturned the position established in the Van Wyk matter with regard to the application of the maxim of res ipsa loquitur in medical negligence cases. Even though the SCA does not specifically name it as such, it applied the principles of the maxim to draw an inference of negligence from the mere fact that a swab was left behind after surgery.
Practically speaking, it will not suffice for the plaintiff to merely establish a causal link between the healthcare provider’s conduct and the adverse result on order for him to succeed with an argument based on the maxim, i.e. that the inference of negligence should be drawn against the defendant. The plaintiff will also have to produce evidence to the effect that the incident could not have occurred in the absence of negligence on the part of the healthcare provider, which evidence will have to be adduced by a medical expert. The SCA in the Goliath matter relied heavily on the evidence provided by Dr Muller, including that a swab should never be left behind following surgery, in order to arrive at the conclusion that the incident could not have happened in the absence of negligence.
Once a plaintiff has adduced sufficient evidence from which an inference of negligence can be drawn by reliance on the maxim, it is up to a defendant to provide an explanation as to why no negligence should be found on his part. A defendant should therefore consider very carefully before deciding not to lead evidence in circumstances where the maxim may be found by a court to apply. As Lord Justice Brooke stated in the matter of Ratcliffe v Plymouth and Torbay Health Authority  EWCA Civ 2000: “It is likely to be a very rare medical negligence case in which the defendants take the risk of calling no factual evidence, when such evidence is available to them, of the circumstances surrounding a procedure which led to an unexpected outcome of a patient. If such a case should arise, the judge should not be diverted away from the inference of negligence dictated by the plaintiff’s evidence by mere theoretical possibilities of how that outcome might have occurred without negligence: the defendants’ hypothesis must have the ring of plausibility about it . . .”