The supreme court of appeal has endorsed calls to jettison the term res ipsa loquitor (the thing speaks for itself) completely from our law. The court remarked that res ipsa loquitur is not a legal rule, is misleading and is unnecessary.

Res ipsa loquitur has for some time been championed by plaintiff attorneys in medico-legal circles as a special legal doctrine to be employed despite the appellate division’s seminal 1924 decision in Van Wyk v Lewis, which rejected its use in medical malpractice cases.

The classic example is the case of a swab left in the patient after surgery leading to an infection. By application of res ipsa loquitur, it has been argued that the onus should be on the defendant medical practitioner or nurse in these circumstances to prove that he or she is not negligent rather than the plaintiff having to prove that the defendant is negligent. This, it is alleged, is because the facts “speak for themselves”.

The court rubbished the idea that there can be a shifting of onus. Put simply, the plaintiff must at least make out a case of negligence against the defendant. A court may well be satisfied that the “facts speak for themselves” after hearing the plaintiff’s evidence. This would justify an inference of negligence if that is all the evidence led and the defence fails to present any evidence that reasonable care was exercised by the medical staff. However, this is not res ipsa loquitur at work, this is simply the reasoning employed by courts every day.

The judgment, Goliath v MEC for Health Eastern Cape, handed down on 25 November 2014, is important for medical negligence insurers and hospital groups.