Whether a doctor’s conduct is reasonable or negligent is tested by comparing it with what would be expected of a reasonable doctor in the circumstances. The test does not expect the doctor to have the highest level of skill and expertise but rather the general level of skill and diligence possessed and exercised at the … Continue reading
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Rejection of ‘the matter speaks for itself’ doctrine and the Onus of Proof in Medical Negligence cases (Part 3)
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 … Continue reading
Disclaimers and the Consumer Protection Act
For the first time, a South African court in Van Wyk v UPS dealt with the application of the Consumer Protection Act to disclaimer clauses in a contract. On the facts, the court applied sections 22, 49 and 52 to sever from the agreement the specific clauses on which the defendant sought to escape liability … Continue reading
You don’t have to own property to sell it
The South African Supreme Court of Appeal has again reminded us that it is not a requirement for a valid contract of sale that the seller must be the owner of the thing sold. Although the parties to a contract of sale usually contemplate the transfer of ownership, this is not an essential feature of … Continue reading
Nothing special about “Res ipsa loquitur” (the facts speak for themselves)
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 … Continue reading
Disclaimer of liability clauses
A contract of carriage had been concluded by way of an exchange of e-mails. After conclusion of the contract, the customer had signed a credit application with standard trading conditions which contained an exemption from liability for loss or damage. The appeal court found that the credit application with the exemption clauses did not form … Continue reading