Broude v McIntosh and Another (290/95) [1998] ZASCA 28; 1998 (3) SA 60 (SCA); [1998] 2 All SA 555 (A) (27 March 1998)

Broude v McIntosh and Another (290/95) [1998] ZASCA 28; 1998 (3) SA 60 (SCA); [1998] 2 All SA 555 (A) (27 March 1998)

The Supreme Court of Appeal found that the appellant failed to discharge the onus of proving, on a balance of probabilities, that the first respondent negligently severed or seriously damaged the facial nerve during the operation. The evidence, including expert testimony and medical records, did not establish immediate and total facial palsy post-operatively, nor did it conclusively demonstrate surgical error. The court accepted the trial judge's findings that the appellant was adequately informed of the risks and alternatives, and that post-operative care met the required standard. The presence of scar tissue and subsequent complications could not be attributed to negligence. The appeal...

Citation
[1998] ZASCA 28
Parties
Appellant: Abraham Mendel Broude; Respondent: William Andrew McIntosh; Respondent: The Administrator of the Transvaal
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
27 March 1998
Case Number
290/95
Procedural Posture
Civil Appeal / Appeal Against Absolution From the Instance
Outcome
Appeal dismissed; absolution from the instance confirmed.
Judges
Marais, Hefer, Eksteen, Nienaber, Howie
Legal Topics
Medical Negligence, Informed Consent, Onus of Proof, Expert Evidence, Damages for Personal Injury
Delict Civil Procedure Medical Negligence Informed Consent Onus of Proof Expert Evidence Damages for Personal Injury

Case Brief

Summary, issues, holding and outcome

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Parties

Abraham Mendel Broude

Appellant

William Andrew McIntosh

Respondent

The Administrator of the Transvaal

Respondent

Procedural Posture

Civil Appeal / Appeal Against Absolution From the Instance

Legal Issues

  1. 1 Whether the surgeon negligently caused damage to the appellant's facial nerve during the operation.
  2. 2 Whether the appellant was properly informed of the risks and alternatives prior to surgery, amounting to informed consent.
  3. 3 Whether post-operative care and monitoring were negligently deficient.

Ratio Decidendi

The Supreme Court of Appeal found that the appellant failed to discharge the onus of proving, on a balance of probabilities, that the first respondent negligently severed or seriously damaged the facial nerve during the operation. The evidence, including expert testimony and medical records, did not establish immediate and total facial palsy post-operatively, nor did it conclusively demonstrate surgical error. The court accepted the trial judge's findings that the appellant was adequately informed of the risks and alternatives, and that post-operative care met the required standard. The presence of scar tissue and subsequent complications could not be attributed to negligence. The appeal...

Court Disposition

Appeal dismissed; absolution from the instance confirmed.

Orders

  • The appeal is dismissed with costs, including the costs of two counsel.