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THE ORIGIN AND DEVELOPMENT OF THE DOCTRINE IN SOUTH AFRICA
The earliest reference to the doctrine of res ipsa loquitur in South African case law seems to be that of Gifford v Table Bay Dock and Breakwater Management Commission 3. The relevant facts indicate that the plaintiff in his capacity as Master and Captain in command of a vessel known as The China instituted proceedings against the defendants for the recovery of damages after The China had been wrecked when it fell off a cradle of a patent slip which had been under the management and control of the defendants at the time 4. De Villiers CJ held that as there was evidence in this case of actual negligence, the court did not consider it necessary to deal in detail with the question as to whether the accident which befell The China was of such a nature as to raise a presumption of negligence which would result in the casting of the burden of proof on the defendants to repel the presumption.
The court nevertheless answered the question as to the defendants’ negligence in the affirmative and after briefly referring to the Roman Law proceeded to discuss the legal position in England and approved of the formulation of the doctrine by Erle CJ .
Some thirteen years later an action was instituted by a passenger who was injured in a tram-car accident against the proprietors of the tram-car. In this instance the court held that the circumstances of the accident raised a presumption of negligence which cast a burden on the defendants to rebut the presumption .
Laurence J (Solomon and Cole JJ concurring) referred with approval to the judgment in the Gifford case and reiterated that the judgment in the Scott case remained the leading authority on the subject 8.
During the ensuing years South African courts have applied the doctrine to various facts and circumstances so that it evolved gradually until it became firmly entrenched and an important evidential tool in the armoury of a plaintiff in certain cases. Although there is no numerus clausus of the type of cases where the doctrine has been applied it would seem that the courts are willing to apply the doctrine provided that certain requirements are met but with the marked exception of its application to medical negligence cases.
NEGLIGENCE
In considering the nature of the occurrence giving rise to the application, it is important to note that not every occurrence that justifies an inference of negligence qualifies as or justifies a finding of res ipsa loquitur. Rumpff JA provides the example of a motor vehicle driving from its correct side of the road onto its incorrect side of the road and causing damage or injury as a result thereof. In this instance the occurrence itself without regard to any other evidence or explanation, is indicative of the driver of the vehicle’s …
Table of Contents
- PREFACE
- SUMMARY (ENGLISH)
- SUMMARY (AFRIKAANS)
CHAPTER 1 :
1.1 GENERAL INTRODUCTION
1.2 PURPOSE
1.3 CHOICE OF LEGAL SYSTEM
1.4 METHODS
CHAPTER 2 : THE APPLICATION OF THE DOCTRINE OF RES IPSA LOQUITUR TO MEDICAL NEGLIGENCE CASES IN SOUTH AFRICA
2.1 INTRODUCTION
2.2 THE ORIGIN AND DEVELOPMENT OF THEDOCTRINE IN SOUTH AFRICA
2.3 REQUIREMENTS FOR THE INVOCATIONOF THE DOCTRINE IN SOUTH AFRICAN LAW
2.3.1 Introduction
2.3.2 Negligence
2.3.3 Control of the instrumentality
2.4 THE EFFECT OF THE APPLICATION OF THE DOCTRINE ON THE ONUS OF PROOF
2.4.1 Introduction
2.4.2 Res ipsa loquitur and circumstantial evidence
2.4.3 Onus of proof
2.4.4 The nature of the defendant’s explanation in rebuttal
2.5 MEDICAL NEGLIGENCE CASES
2.5.1 Introduction
2.5.2 Case law
2.5.3 LEGAL OPINION
2.5.3.1 Introduction
2.5.3.2 The majority judgment in Van Wyk v Lewis
2.5.3.3 Critical analysis of the majority judgment
2.5.3.4 Introduction
2.5.3.5 The evidence of Dr Lewis
2.5.3.6 Conclusion
2.6 SYNOPSIS
2.6.1 INTRODUCTION
2.6.1.1 The requirements for the application of the doctrine
2.6.1.2 Negligence
2.6.1.3Control
2.7 THE NATURE OF THE DOCTRINE
2.8 ONUS OF PROOF
2.9 THE NATURE OF DEFENDANT’S EXPLANATION IN REBUTTAL
2.10 CONCLUSION
CHAPTER 3 :THE APPLICATION OF THE DOCTRINE OF RES IPSA LOQUITUR TO MEDICAL NEGLIGENCE CASES IN ENGLAND
3.1 INTRODUCTION
3.2 THE ORIGIN AND DEVELOPMENT OF THE DOCTRINE IN ENGLAND
3.3 REQUIREMENTS FOR THE INVOCATION OF THE DOCTRINE IN ENGLISH LAW
3.3.1 Introduction
3.3.2 Negligence
3.3.3 Management and control
3.3.4 Absence of explanation
3.4 THE EFFECT OF THE APPLICATION OF THE DOCTRINE ON THE ONUS OF PROOF
3.4.1 Introduction
3.4.2 Res ipsa loquitur and circumstantial evidence
3.4.3 Onus of proof
3.5 THE NATURE OF THE DEFENDANT’S EXPLANATION IN REBUTTAL
3.6 MEDICAL NEGLIGENCE
3.6.1 Introduction
3.7 CASE LAW
3.7.1 Introduction
3.7.2 Retained surgical products
3.7.3 Anaesthetic procedures
3.7.4 General surgical procedures
3.7.5 Dental procedures
3.7.6 Injections
3.7.7 Infection
3.7.8 Duty of care
3.8 LEGAL OPINION
3.8.1 Introduction
3.8.2 Advantage for the plaintiff
3.9 SYNOPSIS
3.9.1 Introduction
3.10 THE REQUIREMENTS FOR THE APPLICATION OF THE DOCTRINE
3.10.1 Negligence
3.10.2 Management and control
3.10.3 Absence of explanation
3.11 THE NATURE OF THE DOCTRINE
3.12 ONUS OF PROOF
3.13 THE NATURE OF THE DEFENDANT’S EXPLANATION IN REBUTTAL
3.14 CONCLUSION
CHAPTER 4 :THE APPLICATION OF THE DOCTRINE OF RES IPSA LOQUITUR TO MEDICAL NEGLIGENCE CASES IN THE UNITED STATES OF AMERICA
4.1 INTRODUCTION
4.2 THE ORIGIN AND DEVELOPMENT OFTHE DOCTRINE IN THE UNITED STATES OF AMERICA
4.3 REQUIREMENTS FOR THE INVOCATIONOF THE DOCTRINE
4.4 THE PROCEDURAL EFFECT OF THE APPLICATION OF THE DOCTRINE ON THE ONUS OF PROOF
4.5 ONUS OF PROOF
4.6 THE NATURE OF THE DEFENDANT’SEVIDENCE IN REBUTTAL
4.7 MEDICAL NEGLIGENCE CASES
4.8 ABSENCE OF CONTRIBUTORY NEGLIGENCEIN MEDICAL CONTEXT
4.9 EVIDENCE MUST BE MORE ACCESSIBLE INMEDICAL CONTEXT
4.10 STATUTORY REGULATION OF THE DOCTRINE IN MEDICAL CONTEXT
4.11 CASE LAW
CHAPTER 5:
5.1 CONCLUSION
5.2 A COMPARATIVE ANALYSIS
5.4 MANAGEMENT AND CONTROL
