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

In this judgement in the Supreme Court of Appeal the claimant submitted that the hospital breached its statutory duty in that it failed to ensure the proper safe-keeping of the hospital records of the claimant and her cerebral palsied child. The court considered the application of res ipsa loquitur maxim (the circumstances speak for themselves) and whether it should find the hospital staff negligent on the mere presence of the brain injury. The court said that it is not inconceivable that a healthcare professional may be motivated to remove the patient records to conceal their negligence. However a plaintiff or legal practitioner may also be motivated to remove hospital records to conceal that which reveals the weakness of their claim.  The court rejected the application of res ipsa loquitur principle and held that the absence of the hospital records is a neutral factor and that negligence of the hospital staff cannot be inferred from such absence.

As a result the court had to then address the issue of onus of proof where medical negligence is alleged but where what went wrong during the claimant’s labour and birth of her child had not been established, and where the expert’s views are all based on speculation leading to several but equally feasible possibilities as to what might have been the cause of the injury sustained.

The court relied on Van Wyk v Lewis 1924 AD 438 which held that a plaintiff who relies on negligence must establish it. The court cautioned that if, at the conclusion of a case, the evidence is evenly balanced, the plaintiff cannot claim success because the plaintiff has failed to discharge the onus of proving their allegations on the balance of probabilities. Whilst one could not on the evidence exclude an intrapartum injury, both antenatal and postnatal injuries cannot be excluded either. Neither is more probable than the other. The court held that an intrapartum injury was not the most plausible inference to be drawn from the proven facts.

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

See also: Part 1 and Part 2