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[2014] ZASCA 182
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Goliath v Member of the Executive Council for Health, Eastern Cape (085/2014) [2014] ZASCA 182; 2015 (2) SA 97 (SCA) (25 November 2014)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
no: 085/2014
Reportable
In
the matter between:
CECILIA
GOLIATH
.........................................................................................................
APPELLANT
and
THE
MEMBER OF THE EXECUTIVE COUNCIL FOR
HEALTH
IN THE PROVINCE OF THE EASTERN
CAPE
.....................................
RESPONDENT
Neutral
citation:
Cecilia Goliath v Member
of the Executive Council for Health, Eastern Cape
(085/2014)
[2014] ZASCA 182
(25 November 2014)
Bench:
Ponnan, Leach, Saldulker, Mbha JJA and
Mathopo AJA
Heard:
10 November 2014
Delivered:
25 November 2014
Summary
:
Delict – medical negligence – surgical swab left in
patient – inappropriate to resort to piecemeal processes
of
reasoning – only one enquiry – whether plaintiff has
discharged the onus of proving on a balance of probabilities
the
negligence averred against the defendant – whether maxim
res
ipsa loquitur
should be jettisoned from
our vocabulary.
ORDER
On
appeal from
: Eastern Cape High Court,
Grahamstown (Lowe J sitting as court of first instance)
1.
The appeal is upheld with costs including
those consequent upon the employment of two counsel.
2.
The order of the court below is set aside and in its stead is
substituted the following order:
‘
Judgment
is granted in favour of the plaintiff against the defendant for:
(a)
Payment of the sum of R 250 000.
(b)
Interest on the said sum at the legal rate
a tempore morae
.
(c)
Costs of suit including the qualifying fees of Dr Muller.’
JUDGMENT
Ponnan
JA (Leach, Saldulker, Mbha JJA and Mathopo AJA concurring):
[1]
In dispassionate legal terms this is an appeal against the dismissal
of an action for damages suffered as a consequence of the
alleged
negligent conduct of the medical staff in the employ of the
respondent, who performed a surgical procedure on the appellant.
In
human terms it is a tale, at least from the perspective of the
appellant, of dashed expectations, much anguish and insensitivity,
culminating in lengthy, stressful, and perhaps needlessly expensive
litigation. The resolution of the litigation, so one suspects
the
appellant would have prophesized at its inception, ought not to have
been particularly protracted or inordinately difficult.
And yet, that
is precisely the course it seems to have run.
[2]
The facts, which are undisputed, fall within a fairly narrow compass.
On 8 April 2011 the appellant, Ms Cecilia Goliath, who
was then 44
years old, underwent a routine hysterectomy for a fibroid uterus at
the Dora Nginza Hospital in Port Elizabeth. By
11 April 2011 she
appeared to have recovered and was discharged. On Friday 15 April
2011 Ms Goliath attended a clinic in Grahamstown
for the removal of
abdominal stiches and a wound dressing. On 7 June 2011 she was
re-admitted to the Dora Nginza Hospital with
severe pain and a wound
abscess. The abscess was scheduled to be operated on in theatre on 8
or 9 June 2011 but this was not done
and on 10 June 2011 the abscess
burst, leading to the cancellation of the operation and her discharge
on no treatment. Two weeks
later Ms Goliath was re-admitted to the
Dora Nginza Hospital complaining of a hard swelling in the abdominal
scar but, after examination
by the medical staff, was re-assured that
nothing was amiss and she was sent home. Being unwilling to return to
the Dora Nginza
Hospital for further treatment of the wound
infection, she called on the Settlers Hospital in Grahamstown on 5
July 2011 and was
admitted to the surgical ward for what was
described in the hospital notes as ‘a painful abdomen,
abdominal distension, wound
infection and a draining of wound sinus’.
As the wound infection and abdominal pain did not clear up she was
referred to
Dr S P Muller, a consulting surgeon at Settlers Hospital,
who, suspecting a ‘deep foreign body in the wound’,
performed
a laparotomy on 15 July 2011 and a septic gauze swab was
removed from her abdomen.
[3]
Ms Goliath instituted an action for damages in the Eastern Cape High
Court, Grahamstown against the respondent, the Member of
the
Executive Council for Health in the Eastern Cape (the MEC), as the
authority responsible for the Department of Health and Hospitals
in
that Province. She alleged:
‘
7.1
the Doctor who treated the Plaintiff was a professional servant in
the employ and service of the Defendant and acted within
the course
and scope of his/her employment as such; and
7.2
the nursing staff and nursing assistants were similarly professional
servants in the employ and service of the Defendant and
acted within
the course and scope of their employment as such; and
.
. .
7.5
the said Doctors and/or medical nursing staff owed the Plaintiff a
duty of care to ensure that she was provided with proper
and skilled
medical treatment including hospital, health services, supervision
and care in accordance with generally accepted standards.
8.
The aforesaid Doctor/Doctors who treated the Plaintiff and the
medical nursing staff who assisted in the treatment of the Plaintiff
and acted negligently and in breach of the aforesaid duty of care in
that they:
8.1
failed to ensure that all surgical swabs utilised in the operation
had been accounted for before the Plaintiff`s abdomen was
closed; and
8.2
failed to remove all surgical swabs from the Plaintiff`s abdomen when
the abdominal wound was closed; and
8.3
they allowed the operation wound to be closed before removing the
surgical swab from the Plaintiff`s abdomen.
9.
In and as a result of the aforementioned negligent conduct of the
Defendant`s employees, the Plaintiff developed the complications
pleaded above, had to attend Dora Nginza Hospital during June 2011 as
pleaded above and ultimately had to undergo the further surgery
for a
laparotomy by Dr SAM MULLER.
10.
In the premises the wrongful and negligent conduct of the Defendant`s
employees as aforesaid was directly causally connected
to the
Plaintiff developing a wound abscess and ultimately requiring further
surgery.’
The
MEC’s plea to those allegations was that:
‘
8.2
Ms Goliath`s hospitalisation and treatment was consistent with a duty
of care owed to her having regard to the conditions and
standards
prevailing at the time; and
.
. .
9.2
the MEC`s employees and servants were not negligent in the
manner alleged or at all.’
[4]
The high court (per Lowe J) dismissed Ms Goliath`s claim with costs
but granted leave to her to appeal to this court against
the whole of
its judgment. In arriving at its conclusion the high court identified
the ‘real issue’ in the matter as
whether the appellant
had ‘discharged the onus of establishing negligence’. The
question, according to Lowe J,
‘
is
whether on the appropriate test (viewed in the circumstances set out
above) the surgeon, the theatre staff and swab sister (or
any one of
them) conducted themselves in a manner constituting negligence.’
That
question the learned judge answered thus:
‘
I
am unable to find that plaintiff has discharged the onus which fell
upon her to establish the negligence of either surgeon or
nursing
staff in the theatre relevant to the swab being left behind.’
He
accordingly dismissed Ms Goliath’s claim with costs.
[5]
In the course of his judgment Lowe J stated:
‘
It
has been widely accepted that the majority judgement in
Van
Wyk v Lewis
[1924 AD 438]
eschewed
the application of
res ipsa loquitur
maxim in medical negligence actions. Indeed it has been stated that
our courts have declined to apply the doctrine in such cases
because
it has been argued, accepted and held that in the medical context,
the requirement that the occurrence must fall within
the scope of the
ordinary knowledge and experience of the reasonable man cannot be
met.
It
is trite that in medical negligence cases, a lower court is bound by
the stare decisis legal precedent system and simply cannot
invoke the
res ipsa loquitur
doctrine. See: “
Should res ipsa
loquitur speak for itself in medical accidents
:”
Patrick Van Den Heever De Rebus: November 2002.
There is no South
African authority which overrules
Van Wyk (supra)
on this
issue, at least I was referred to and I was unable to find any in my
own research. On the contrary the work
Res Ipsa Loquitur
and medical negligence: A comparative survey: Van Den Heever &
Carstens: Juta 2011:
whilst accepting that
res ipsa loquitur
was rejected as having application in medical negligence cases by the
majority of the court in
Van Wyk
argue that this should be
reconsidered for many reasons. They suggest that following the High
Court judgement in
Pringle v Administrator Transvaal
1990 (2) SA
379
(WLD) at 384 H
the door has not closed on the possible
application of the maxim in medical negligence cases, with the caveat
that it can only
be applied if the alleged negligence is derived from
something absolute, and the occurrence could not reasonably have
taken place
without negligence. The authors go on to state “
If
regard must be had to the surrounding circumstances to establish the
presence or absence of negligence, the doctrine does not
find
application
.” (at 27)
.
. .
There
can be no doubt whatsoever, that until
Van Wyk v Lewis (supra)
is reconsidered and overturned by a court of appropriate status, a
lower court (such as this) is bound to accept that in medical
negligence cases, and certainly in cases involving swabs, the
doctrine cannot be applied and that a conclusion must be reached
without regard thereto.
Van
Wyk v Lewis (supra)
was dealt with
extensively in a doctoral thesis on the subject of the applicability
of the maxim in the health care context by
Van
Den Heever: “
The
application of the doctrine of res ipsa loquitur to medical
negligence actions
: a
comparative survey”.
The author
revisits Van Wyk in extensive detail as is pointed out in:
Foundational Principles of South African Medical Law:
Carstens/Pearmain
Lexis Nexis 2007), Van Den Heever reaches the
conclusion that there was no reason in Van Wyk as to why the maxim
should not have
been applied and that the court erred in finding that
it was not applicable in the medical context.
.
. .
I
remain of the view, that whilst much may be said for revisiting the
application of
res ipsa loquitur
in the medical negligence
field, as is eloquently set out by Van den Heever in the De Rebus
article referred to above and in the
Foundational Principles of
South African Medical Law (supra),
I am bound by the principles
set out in
Van Wyk v Lewis
(supra)
’.
[6]
The learned Judge concluded:
‘
I
should say that had the
maxim res ipsa
loquitur
been applicable to this matter
and had I been able to rely thereon, the result in this matter may
well have been completely different
and in those circumstances 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. I am unable, however, in
the circumstances discussed
above to make such a finding as I regard
myself bound by
Van Wyk (supra)
and I respectfully consider the contrary view taken in
Ntsele
(supra)
at paras [105-121] relevant to
res ipsa loquitur
to have been incorrectly decided.’
Those
sentiments appear to have moved the learned judge to grant leave to
Ms Goliath to appeal to this court. And, in turn, prompted
the Centre
for Law and Medicine of the University of Pretoria to obtain leave
from the registrar of this court to be admitted as
an
amicus
curiae.
Heads of argument were accordingly filed with the
registrar of this court on behalf of the
amicus
and counsel
was briefed to address us in argument from the bar on the issue.
[7]
It is important at the outset to emphasise that in law (as I suppose
in most disciplines) terminology is important, because
the use of
incorrect terminology usually conduces to conceptual confusion. In
both the pleadings and argument in this case one
frequently
encountered the refrain ‘duty of care’. In
McIntosh v
Premier, KwaZulu- Natal & another
2008 (6) SA 1
(SCA) para 12
Scott JA observed:
‘
The
second inquiry is whether there was fault, in this case negligence.
As is apparent from the much-quoted dictum of Holmes JA
in
Kruger
v Coetzee
1966 (2) SA 428
(A) at
430E-F, the issue of negligence itself involves a twofold inquiry.
The first is: was the harm reasonably foreseeable? The
second is:
would the
diligens paterfamilias
take reasonable steps to guard against such occurrence and did the
defendant fail to take those steps? The answer to the second
inquiry
is frequently expressed in terms of a duty. The foreseeability
requirement is more often than not assumed and the inquiry
is said to
be simply whether the defendant had a duty to take one or other step,
such as drive in a particular way or perform some
or other positive
act, and, if so, whether the failure on the part of the defendant to
do so amounted to a breach of that duty.
But the word “duty”,
and sometimes even the expression “legal duty”, in this
context, must not be confused
with the concept of “legal duty”
in the context of wrongfulness which, as has been indicated, is
distinct from the
issue of negligence. I mention this because this
confusion was not only apparent in the arguments presented to us in
this case
but is frequently encountered in reported cases. The use of
the expression “duty of care” is similarly a source of
confusion. In English law “duty of care” is used to
denote both what in South African law would be the second leg of
the
inquiry into negligence and legal duty in the context of
wrongfulness. As Brand JA observed in
Trustees,
Two Oceans Aquarium Trust
at 144F, “duty of care” in English law “straddles
both elements of wrongfulness and negligence”.’
[8]
The general rule is that she who asserts must prove. Thus in a case
such as this a plaintiff must prove that the damage that
she has
sustained has been caused by the defendant’s negligence. The
failure of a professional person to adhere to the general
level of
skill and diligence possessed and exercised at the same time by the
members of the branch of the profession to which he
or she belongs
would normally constitute negligence (
Van
Wyk v Lewis
1924 AD 438
at 444). A
surgeon is in no different a position to any other professional
person (
Lillicrap, Wassenaar and
Partners v Pilkington Brothers (SA) (Pty) Ltd
1985 (1) SA 475
(A) at 488C). It has been pointed out that a ‘medical
practitioner is not expected to bring to bear upon the case entrusted
to him the highest possible degree of professional skill, but he is
bound to employ reasonable skill and care’ (
Mitchell
v Dickson
1914 AD 419
at 525). As
Scott
J put it in
Castell v De Greef
1993 (3) SA 501
(C) at 512A-B:
‘The test remains always whether the practitioner exercised
reasonable skill and care or, in other words,
whether or not his
conduct fell below the standard of a reasonably competent
practitioner in his field’ (cited with approval
in
Buthelezi
v Ndaba
2013 (5) SA 437
(SCA) para 15)
.
[9]
In
Buthelezi v
Ndaba
(para 16), Brand JA, after
referring to
Van Wyk v Lewis
as the
locus classicus
on medical malpractice, pointed out that the maxim
res ipsa
loquitur
‘could rarely, if ever, find application in cases
based on alleged medical negligence’. Significantly, my learned
colleague
was astute not to say that it could never find application
to a case based on medical negligence. The evident reluctance of our
courts to apply the maxim is because, as
Lord
Denning MR observed in
Hucks v Cole
[1968] 118 New LJ 469
([1993]
4 Med LR 393)
‘with the
best will in the world things sometimes went amiss in surgical
operations or medical treatment. A doctor was not
to be held
negligent simply because something went wrong’. For to hold a
doctor negligent simply because something had gone
wrong, would be to
impermissibly reason backwards from effect to cause (
Medi-Clinic
Limited v Vermeulen
(504/13)
[2014] ZASCA 150
(26 September 2014)
para 27).
[10]
Broadly stated,
res ipsa loquitur
(the thing speaks for
itself) is a convenient Latin phrase used to describe the proof of
facts which are sufficient to support
an inference that a defendant
was negligent and thereby to establish a prima facie case against
him. The maxim is no magic formula
(Arthur v Bezuidenhout and
Mieny
1962 (2) SA 566
(A) at 573E). It is not a presumption of
law, but merely a permissible inference which the court may employ if
upon all the facts
it appears to be justified (Zeffert & Paizes
‘The South African Law of Evidence’ 2ed at 219). It is
usually invoked
in circumstances when the only known facts, relating
to negligence, consist of the occurrence itself (see
Groenewald v
Conradie; Groenewald en Andere v Auto Protection Insurance Co Ltd
1965 (1) SA 184
(AD) at 187F) - where t
he
occurrence may be of such a nature as to warrant an inference of
negligence. The maxim alters neither the incidence of the onus
nor
the rules of pleading (
Madyosi v SA
Eagle Insurance Co Ltd
[1990] ZASCA 65
;
1990 (3) SA 442
(A) at 445F) – it being trite that the onus resting upon a
plaintiff never shifts (
Arthur v Bezuidenhout and Mieny
at
573C).
Nothing about its invocation or
application, I daresay, is intended to displace common sense.
In
the words of Lord Shaw in
Ballard v
Northern British Railway Co
60 Sc LR
448
‘the expression need not be magnified into a legal rule: it
simply has its place in that scheme of and search for causation
upon
which the mind sets itself working’ (cited with approval in
Naure NO v Transvaal Boot and Shoe
Manufacturing Co
1938 AD 379
and
Arthur
v Bezuidenhout and Mieny
at 573F-G).
[11]
In
Sardi v Standard and General
Insurance Co Ltd
1977 (3) SA 776
(A) at
780C-H,
Holmes JA made plain that it is inappropriate to
resort to piecemeal processes of reasoning and to split up the
enquiry regarding
proof of negligence into two stages. He emphasized
that there is only one enquiry, namely whether the plaintiff, having
regard
to all of the evidence in the case, has discharged the onus of
proving, on a balance of probabilities, the negligence averred
against
the defendant. In that regard the learned judge of appeal
stated:
‘
As
INNES, C.J., pertinently insisted in
Van
Wyk v Lewis
,
1924 AD 438
at p. 445,
lines 8 - 9, "It is really a question of inference". It is
perhaps better to leave the question in the realm
of inference than
to become enmeshed in the evolved mystique of the maxim. The person,
against whom the inference of negligence
is so sought to be
drawn, may give or adduce evidence seeking to explain that the
occurrence was unrelated to any negligence
on his part. The Court
will test the explanation by considerations such as probability and
credibility; see
Rankisson & Son v
Springfield Omnibus Services (Pty.) Ltd
.,
1964 (1) SA 609
(N) at p. 616D. At the end of the case, the Court has
to decide whether, on all of the evidence and the probabilities
and
the inferences, the plaintiff has discharged the
onus
of proof on the pleadings on a preponderance of probability, just as
the Court would do in any other case concerning negligence.
In this
final analysis, the Court does not adopt the 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. See
R
.
v
Sacco
,
1958 (2) SA 349
(N) at p. 352;
Grootfontein
Dairy v Nel
, 1945 (2) P.H. 15 (A.D.);
Arthur v Bezuidenhout and Mieny
,
1962 (2) SA 566
(AD) at pp. 574 - 576.’
[12]
Thus in every case, including one where the maxim
res
ipsa loquitur
is applicable, the
enquiry at the end of the case is whether the plaintiff has
discharged the onus resting upon her in connection
with the issue of
negligence (
Osborne Panama SA v Shell &
BP South African Petroleum Refineries (Pty) Ltd
1982
(4) SA 890
(A) at 897H-898A). That being so, and given what Holmes JA
described as the ‘evolved mystique of the maxim’, the
time
may well have come for us to heed the call of Lord Justice
Hobhouse to jettison it from our legal lexicon. In that regard he
stated
in
Ratcliffe
v
Plymouth and Torbay Health Authority
[1998]
EWCA Civ 2000
(11 February 1998):
‘
In
my judgment the leading cases already gives sufficient guidance to
litigators and judges about the proper approach to the drawing
of
inferences and if I were to say anything further it would be confined
to suggesting that the expression
res
ipsa loquitur
should be dropped from
the litigator’s vocabulary and replaced by the phrase
a
prima facie case
.
Res
ipsa loquitur
is not a principle of
law: it does not relate to or raise any presumption. It is merely a
guide to help to identify when a
prima
facie
case is being made out. Where
expert and factual evidence has been called on both sides at a trial
its usefulness will normally
have long since been exhausted.’
[13]
Medical negligence cases do sometimes involve questions of factual
complexity and difficulty and may require the evaluation
of technical
and conflicting expert evidence. But the trial procedure, which is
essentially the same as in other cases, is designed
to deal with
those and thus no special difficulty ought to be involved in
determining them. In this case the matter must be approached
on the
basis that at the conclusion of the hysterectomy, one of the swabs
was overlooked and remained in Ms Goliath`s abdomen.
For, in no other
way could it have found its way into her body. The compensation
demanded is in respect of an injury alleged to
have been sustained by
reason of the negligence on the part of the attending medical staff
in the employ of the MEC. The MEC`s
liability therefore depends on
whether the injury sustained was due to negligence on the part of his
employees in allowing the
swab to be left in Ms Goliath’s
abdomen.
[14]
In addition to Ms Goliath, Dr Muller, who performed the laparotomy,
when the swab was removed, testified. No witnesses were
called on
behalf of the MEC. As is commonplace in cases of this kind, Ms
Goliath did not fully know what had occurred because the
relevant
procedure was an operation carried out under general anaesthetic. Dr
Muller testified that: ‘Leaving an abdominal
swab in the
abdomen invariably causes abdominal infections’; and ‘it’s
thank God a very rare situation to have
a swab left in an abdomen
after an operation’. He explained that it is a rare occurrence
because ‘rigid regulations
[exist] that must be followed at all
times after any operation and most definitely abdominal operations’.
He added ‘it
should not happen ever’.
[15]
In supporting the conclusion reached by the high court, counsel for
the MEC set much store by
Van Wyk v
Lewis
, which it was suggested was on
all fours with this case. But, as Innes CJ stressed in
Van
Wyk v Lewis
(at 445), each case
ultimately depends upon its own facts. In that, Kotze JA was at one
with the Chief Justice when he observed
(at 453) ‘the question
of negligence or no negligence must be ascertained from a
consideration of all the facts viewed as
a whole’. So too was
Wessels JA when he stated (at 461- 462):
‘
We
cannot determine in the abstract whether a surgeon has or has not
exhibited reasonable skill and care. We must place ourselves
as
nearly as possible in the exact position in which the surgeon found
himself when he conducted the particular operation and we
must then
determine from all the circumstances whether he acted with reasonable
care or negligently. Did he act as an average surgeon
placed in
similar circumstances would have acted, or did he manifestly fall
short of the skill, care and judgement of the average
surgeon in
similar circumstances? If he falls short he is negligent.’
[16]
Van Wyk v Lewis
concerned
a very difficult operation conducted by artificial light - one in
which, because of the danger to the patient’s
life, it was
imperative to get the patient off the operating table as soon as
possible.
Here we are concerned with a
routine
hysterectomy performed in a modern
surgical theatre in circumstances where there was no suggestion that
Ms Goliath’s life
was in any danger during its course. Unlike
in
Van Wyk v Lewis,
we simply do not know who was in attendance during the surgical
procedure or whether the ‘rigid regulations’ alluded
to
by Dr Muller had been followed. In particular we do not know whether
there was a count of the swabs (or at the very least an
attempt at
one) prior to sewing-up the patient. And if so, what was the level of
training, and how experienced was, the person
to whom that task was
assigned? Tellingly in
Van Wyk v Lewis
that task fell to a very experienced
theatre sister. On that score Innes CJ was unwilling to hold that a
surgeon who leaves that
task to a competent sister was on that
account guilty of negligence (at 449), and even assuming in those
circumstances that she
was negligent in her check, it did not follow
that the surgeon was liable for the consequences (at 450). As the
nurse was not a
party to that case, the learned Chief Justice
declined the invitation to express an opinion as to her liability. In
this case the
MEC has been sued in his capacity as the employer of
all of the medical staff who at the relevant time attended on Ms
Goliath during
the course of the operation, at least one of whom
would have had to perform the rather important task of checking and
counting
the swabs.
[17]
When an inference of negligence would be justified and to what extent
expert evidence would be necessary would no doubt depend
on the facts
of the particular case. Questions of absolution from the instance at
the close of the plaintiff’s case aside,
a court is not called
upon to decide the issue of negligence until all of the evidence is
concluded (
Arthur v Bezuidenhout and
Mieny
at 573H). Thus any such
explanation as may be advanced by a defendant forms part of the
evidential material to be considered in
deciding whether a plaintiff
has proved the allegation that the damage was caused by the
negligence of the defendant or its servants
(
Osborne
Panama SA v Shell & BP
at 897G-H).
Here although the procedure performed on Ms Goliath was under the
control of the MEC`s employees, and what they did
or did not do was
exclusively within their direct knowledge, none of those employees
were called to testify. In
Ratcliffe
v Plymouth and Torbay Health Authority
(para 48) Lord Justice Brooke made the point that:
‘
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 for 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. . . .’
[18]
Lowe J appears to have allowed himself to be diverted from the
obvious inference of negligence dictated by the evidence in
this case
by virtue of his heightened focus on the applicability of the maxim
res ipsa loquitur
to cases
based on alleged medical negligence
. He appeared
not to appreciate that:
‘
At
the end of the trial, after all the evidence relied upon by either
side has been called and tested, the judge has simply to decide
whether as a matter of inference or otherwise he concludes on the
balance of probabilities that the defendant was negligent and
that
that negligence caused the plaintiff`s injury. That is the long and
short of it.’
(Per
Lord Justice Hobhouse (
Ratcliffe
v Plymouth and Torbay Health Authority
)
.
)
In
that connection the important distinction between an onus of proof
and an obligation to adduce evidence (
Arthur
v Bezuidenhout and Mieny
at 573A) came
to be blurred. For as
Wessels JA pointed
out (
Van Wyk v Lewis
at
470):
‘
Now
there is no doubt that it is the duty of an operating surgeon to use
reasonable skill and care to remove all swabs from the
body of his
patient before he proceeds to sew up. He cannot rely implicitly on
the count of the nurse, he must search and make
as sure as possible
that all swabs have been removed. If he shows any indifference in
such a matter he is guilty of negligence.’
[19]
Thus at the close of
Ms
Goliath’s
case, after both she and Dr
Muller had testified,
there was sufficient
evidence which gave rise to an inference of negligence on the part of
one or more of the medical staff in the
employ of
the
MEC who attended on her. In that regard it is important to bear in
mind that in a civil case it is not necessary for a plaintiff
to
prove that the inference that she asks the court to draw is the only
reasonable inference, it suffices for her to convince the
court that
the inference that she advocates is the most readily apparent and
acceptable inference from a number of possible inferences
(
AA
Onderlinge Assuransie-Assosiasie Bpk v De Beer
1982
(2) SA 603
(A); see also
Cooper &
another NNO v Merchant Trade Finance Ltd
2000
(3) SA 1009
(SCA)). That being so, the MEC, in failing to
adduce any evidence whatsoever, accordingly took the risk of a
judgment being
given against him.
After
all, it was open to the MEC to adduce evidence to show that whilst Ms
Goliath was undergoing surgery, reasonable care had
indeed been
exercised by his employees. That he did not do.
Nor,
for that matter was so much as a version put during cross examination
to either Ms Goliath or Dr Muller on behalf of the MEC.
Moreover, no
explanation was advanced as to why the medical staff who attended on
Ms Goliath were not called as witnesses. It may
well be that in these
circumstances an inference may be justified that the MEC feared that
if one or more of them were to enter
the witness-box such person’s
evidence would expose facts unfavourable to his case. Accordingly,
as
the matter had been fully explored in the evidence, at the conclusion
of the trial the task of the court
was to
decide whether, on all of the evidence and the probabilities and
the inferences, Ms Goliath had discharged the onus
of proof resting
upon her on a preponderance of probability. In my view she
unquestionably had. It follows that the appeal must
succeed.
[20]
It remains to record that the issue of the quantum of damages in this
case that stood over for later determination by the high
court (or
agreement between the parties) has since been settled by the parties,
with the MEC undertaking to pay to Ms Goliath the
sum of R 250 000 in
consequence of the event that is the subject of this claim.
[21]
In the result:
1.
The appeal is upheld with costs including
those consequent upon the employment of two counsel.
2.
The order of the court below is set aside and in its stead is
substituted the following order:
‘
Judgment
is granted in favour of the plaintiff against the defendant for:
(a)
Payment of the sum of R 250 000.
(b)
Interest on the said sum at the legal rate
a tempore morae
.
(c)
Costs of suit including the qualifying fees of Dr Muller.’
________________
V
PONNAN
APPEARANCES:
For
Appellant:
I
J Smuts SC (with him S H Cole)
Instructed
by:
Wheeldon
Rushmere & Cole
Grahamstown
c/o
Symington & De Kok
Bloemfontein
For
Respondent:
G H Bloem SC (with him S Rugunanan)
Instructed
by:
Whitesides
Grahamstown
State
Attorney
Bloemfontein
For
Amicus Curiae:
A
C Oosthuizen SC (with him P van den Heever)
(Centre
for Law and Medicine)
Instructed
by:
Rosenberg
Reitz Barry
Bloemfontein