Goliath v MEC for Health, Eastern Cape

• Jurisdiction: South Africa
• Citation: 2015 (2) SA 97 (SCA)

Goliath v MEC for Health, Eastern Cape
2015 (2) SA 97 (SCA)

2015 (2) SA p97

Citation	2015 (2) SA 97 (SCA)
Case No	085/2014; [2014] ZASCA 182
Court	Supreme Court of Appeal
Judge	Ponnan JA, Leach JA, Saldulker JA, Mbha JA and Mathopo AJA
Heard	November 10, 2014
Judgment	November 25, 2014
Counsel	IJ Smuts SC (with SH Cole) for the appellant.; GH Bloem SC (with S Rugunanan) for the respondent.; AC Oosthuizen SC (with P van den Heever) for the amicus (the Centre for Law and Medicine).

Flynote : Sleutelwoorde B

Delict — Elements — Negligence — Proof — Res ipsa loquitur — No more than phrase used to describe proof of facts sufficient to establish prima facie case against defendant — Not entailing shifting of onus — Courts to guard against piecemeal reasoning by first drawing inference of negligence C from occurrence and then asking whether it was rebutted by defence — Only one enquiry: Whether plaintiff discharged onus of proving negligence — Semble: Res ipsa loquitur to be jettisoned from legal jargon.

Medicine — Medical practitioner — Negligence — Proof — Res ipsa loquitur no D more than phrase used to describe proof of facts sufficient to establish prima facie case against defendant — Swab left in plaintiff after surgical operation — Inference of negligence not rebutted — Plaintiff having discharged her onus — Succeeding on appeal — Semble: Res ipsa loquitur to be jettisoned from legal jargon.

Headnote : Kopnota

A surgical swab was left in Ms Goliath's abdomen during a hysterectomy E performed at a provincial hospital falling under the MEC. It resulted in infection and further surgery to remove the swab. Ms Goliath sued the MEC in delict, alleging negligence on the part of the doctors and nursing staff that performed the hysterectomy. The high court dismissed the claim despite F the fact that the MEC did not adduce any evidence. In holding that Ms Goliath failed to discharge the onus of establishing negligence, the high court pointed out that it was precluded by precedent from applying the res ipsa loquitur doctrine in the medical-negligence field. In an appeal to the SCA —

Held: The enquiry was whether Ms Goliath discharged the onus to prove her G case, namely that the damage she sustained was caused by the negligence of the doctors and nursing staff in allowing the swab to be left in her. Res ipsa loquitur was merely a convenient phrase used to describe proof of facts sufficient to support an inference of negligence and thereby to establish a prima facie case against a defendant. It was not a magic formula and did not H entail a 'shifting' of the onus or a suspension of common sense. Specifically, the maxim should not tempt a court to first draw an inference of negligence from the occurrence itself and then decide whether it was rebutted by the defendant's explanation. In the present case the high court's focus on the applicability of the maxim to medical-negligence suits had diverted it from the obvious inference of negligence dictated by Ms Goliath's evidence of the I left-behind swab. In failing, without explanation, to adduce any countervailing evidence whatsoever, the MEC took the risk of judgment being given against him. In the premises the appeal would succeed.

Semble: The time may have come to drop the res ipsa loquitur maxim from the legal vocabulary. (Paragraphs [8] – [12] and [18] – [19] at 102J – 105A and 106I – 107I.) J

2015 (2) SA p98

Cases Considered

Annotations A

Case law

Southern Africa

AA Onderlinge Assuransie-Assosiasie Bpk v De Beer 1982 (2) SA 603 (A): referred to

Arthur v Bezuidenhout and Mieny 1962 (2) SA 566 (A): dictum at 573A – H applied B

Buthelezi v Ndaba 2013 (5) SA 437 (SCA): dictum in para [15] applied

Castell v De Greef 1993 (3) SA 501 (C): dictum at 512A – B applied

Cooper and Another NNO v Merchant Trade Finance Ltd 2000 (3) SA 1009 (SCA): referred to

Groenewald v Conradie; Groenewald en Andere v Auto Protection Insurance Co Ltd 1965 (1) SA 184 (A): dictum at 187F applied C

Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 (1) SA 475 (A): dictum at 488C applied

Madyosi v SA Eagle Insurance Co Ltd 1990 (3) SA 442 (A): dictum at 445F applied

McIntosh v Premier, KwaZulu-Natal and Another 2008 (6) SA 1 (SCA) ([2008] 4 All SA 72): dictum in para [12] applied D

Medi-Clinic Ltd v Vermeulen 2015 (1) SA 241 (SCA) ([2014 ZASCA 150): dictum in para [27] applied

Mitchell v Dixon 1914 AD 519: dictum at 525 applied

Naude NO v Transvaal Boot and Shoe Manufacturing Co 1938 AD 379: referred to E

Osborne Panama SA v Shell & BP South African Petroleum Refineries (Pty) Ltd and Others 1982 (4) SA 890 (A): dictum at 897H – 898A applied

Sardi and Others v Standard and General Insurance Co Ltd 1977 (3) SA 776 (A): dictum at 780C – H applied

Van Wyk v Lewis 1924 AD 438: discussed and distinguished.

England F

Hucks v Cole [1968] 118 New LJ 469 ([1993] 4 Med LR 393): referred to

Ratcliffe v Plymouth and Torbay Health Authority [1998] EWCA Civ 2000: applied.

Scotland G

Ballard v Northern British Railway Co 60 Sc LR 441: dictum at 457 applied.

Case Information

IJ Smuts SC (with SH Cole) for the appellant.

GH Bloem SC (with S Rugunanan) for the respondent. H

AC Oosthuizen SC (with P van den Heever) for the amicus (the Centre for Law and Medicine).

An appeal against a decision of the Eastern Cape Division, Grahamstown (Lowe J).

Order I

1.

The appeal is upheld with costs, including those consequent upon the employment of two counsel.

2.

The order of the court below is set aside and in its stead is substituted the following order: 'Judgment is granted in favour of J the plaintiff against the defendant for:

2015 (2) SA p99

(a)

Payment of the sum of R250 000. A

(b)

Interest on the said sum at the legal rate a tempore morae.

(c)

Costs of suit, including the qualifying fees of Dr Muller.'

Judgment

Ponnan JA (Leach JA, Saldulker JA, Mbha JA and Mathopo AJA concurring): B

[1] In dispassionate legal terms this is an appeal against the dismissal of an action for damages suffered as a consequence of the alleged negligent conduct of the medical staff in the employ of the respondent, who performed a surgical procedure on the appellant. In human terms it is a tale, at least from the perspective of the appellant, of dashed expectations, C much anguish and insensitivity, culminating in lengthy, stressful, and perhaps needlessly expensive litigation. The resolution of the litigation, so one suspects the appellant would have prophesied at its inception, ought not to have been particularly protracted or inordinately difficult. And yet, that is precisely the course it seems to have run. D

[2] The facts, which are undisputed, fall within a fairly narrow compass. On 8 April 2011 the appellant, Ms Cecilia Goliath, who was then 44 years old, underwent a routine hysterectomy for a fibroid uterus at the Dora Nginza Hospital in Port Elizabeth. By 11 April 2011 she appeared to have recovered and was discharged. On Friday 15 April 2011 Ms E Goliath attended a clinic in Grahamstown for the removal of abdominal stitches and a wound dressing. On 7 June 2011 she was readmitted to the Dora Nginza Hospital with severe pain and a wound abscess. The abscess was scheduled to be operated on in theatre on 8 or 9 June 2011 but this was not done and on 10 June 2011 the abscess burst, leading to the cancellation of the operation and her discharge on no F treatment. Two weeks later Ms Goliath was readmitted to the Dora Nginza Hospital complaining of a hard swelling in the abdominal scar but, after examination by the medical staff, was reassured that nothing was amiss and she was sent home. Being unwilling to return to the Dora Nginza Hospital for further treatment of the wound infection, she called G on the Settlers Hospital in Grahamstown on 5 July 2011 and was admitted to the surgical ward for what was described in the hospital notes as 'a painful abdomen, abdominal distension, wound infection and a draining of wound sinus'. As the wound infection and abdominal pain did not clear up she was referred to Dr SP Muller, a consulting surgeon at Settlers Hospital, who, suspecting a 'deep foreign body in the wound', H performed a laparotomy on 15 July 2011 and a septic gauze swab was removed from her abdomen.

[3] Ms Goliath instituted an action for damages in the Eastern Cape High Court, Grahamstown, against the respondent, the Member of the I Executive Council for Health in the Eastern Cape (the MEC), as the authority responsible for the Department of Health and Hospitals in that province. She alleged:

'7.1

The doctor who treated the plaintiff was a professional servant in the employ and service of the defendant and acted within the course and scope of his/her employment as such; and J

2015 (2) SA p100

Ponnan JA (Leach JA, Saldulker JA, Mbha JA and Mathopo AJA concurring)

7.2

A the nursing staff and nursing assistants were similarly professional servants in the employ and service of the defendant and acted within the course and scope of their employment as such; and

. . .

7.5

the said doctors and/or medical nursing staff owed the plaintiff a duty of care to ensure that she was provided with proper and B skilled medical treatment including hospital, health services, supervision and care in accordance with generally accepted standards.

8.

The aforesaid doctor/doctors who treated the plaintiff and the medical nursing staff who assisted in the treatment of the plaintiff and acted negligently and in breach of the aforesaid duty of care C in that they:

8.1

failed to ensure that all surgical swabs utilised in the operation had been accounted for before the plaintiff's abdomen was closed; and

8.2

failed to remove all surgical swabs from the...