Goliath v Member of the Executive Council for Health, Eastern Cape (085/2014) [2014] ZASCA 182; 2015 (2) SA 97 (SCA) (25 November 2014)

Goliath v Member of the Executive Council for Health, Eastern Cape (085/2014) [2014] ZASCA 182; 2015 (2) SA 97 (SCA) (25 November 2014)

The Supreme Court of Appeal held that the appellant had discharged the onus of proving negligence on the part of the medical staff employed by the respondent. The court found that the evidence established that a surgical swab was left in the appellant's abdomen during a routine hysterectomy, and that such an occurrence is rare and should not happen if proper procedures are followed. The respondent failed to adduce any evidence to explain how the swab came to be left inside the appellant or to show that reasonable care had been exercised. The court emphasised that the enquiry is whether, on all the evidence and probabilities, the plaintiff has discharged the onus of proof. The court...

Citation
[2014] ZASCA 182
Parties
Appellant: Cecilia Goliath; Respondent: Member of the Executive Council for Health in the Province of the Eastern Cape
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
25 November 2014
Case Number
085/2014
Procedural Posture
Civil Appeal / Appeal From Eastern Cape High Court, Grahamstown
Outcome
Appeal upheld; judgment granted in favour of the appellant.
Judges
Ponnan, Leach, Saldulker, Mbha, Mathopo
Legal Topics
Medical Negligence, Onus of Proof, Res Ipsa Loquitur, Hospital Liability
Delict Civil Procedure Medical Negligence Onus of Proof Res Ipsa Loquitur Hospital Liability

Case Brief

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Parties

Cecilia Goliath

Appellant

Member of the Executive Council for Health in the Province of the Eastern Cape

Respondent

Procedural Posture

Civil Appeal / Appeal From Eastern Cape High Court, Grahamstown

Legal Issues

  1. 1 Whether the appellant discharged the onus of proving negligence on the part of the medical staff who performed the surgical procedure.
  2. 2 Whether the maxim res ipsa loquitur is applicable in medical negligence cases in South African law.
  3. 3 Whether the respondent's failure to adduce evidence justified an inference of negligence.

Ratio Decidendi

The Supreme Court of Appeal held that the appellant had discharged the onus of proving negligence on the part of the medical staff employed by the respondent. The court found that the evidence established that a surgical swab was left in the appellant's abdomen during a routine hysterectomy, and that such an occurrence is rare and should not happen if proper procedures are followed. The respondent failed to adduce any evidence to explain how the swab came to be left inside the appellant or to show that reasonable care had been exercised. The court emphasised that the enquiry is whether, on all the evidence and probabilities, the plaintiff has discharged the onus of proof. The court...

Court Disposition

Appeal upheld; judgment granted in favour of the appellant.

Orders

  • The appeal is upheld with costs, including those consequent upon the employment of two counsel.
  • The order of the court below is set aside and substituted with judgment in favour of the plaintiff against the defendant for payment of R 250 000.