This blog was co-authored by: Caitlin Gardiner, Candidate Attorney

In this case, the Claimant sued for damages, alleging that the hospital staff’s negligence during her labour resulted in her child’s cerebral palsy. The Supreme Court of Appeal found that no adverse inference should be drawn because the hospital records are missing. Nor could any negative inference be drawn where the hospital failed to call as witnesses the individuals who were responsible for the safe keeping of the medical records and the hospital staff who had completed the medical records.

No inference whether favourable or unfavourable can be drawn from the absence of hospital records nor should the situation warrant a charitable approach which gives cognisance to the plight of the claimant.

Even if these witnesses had been available there was no indication as to what they could have said about the hospital records other than that they were missing or attesting to the respective entries made by them which weren’t in dispute. It would have served no purpose to call these witnesses as they would not be expected to have an independent recollection of events dating back to 2015 and would have little to testify about.

There was no evidence before the court which would suggest that these individuals had something relevant to say and that they were being shielded from hostile cross-examination.

The case is HAL obo MML v MEC for Health, Free State [2021] ZASCA 149