n Stellenbosch Law Review = Stellenbosch Regstydskrif - Res Ipsa Loquitur & Medical Negligence: A Comparative Survey, P van den Heever & P Carstens : book review
|Article Title||Res Ipsa Loquitur & Medical Negligence: A Comparative Survey, P van den Heever & P Carstens : book review|
|© Publisher:||Juta Law Publishing|
|Journal||Stellenbosch Law Review = Stellenbosch Regstydskrif|
|Author||Andra Le Roux-Kemp|
|Publication Date||Jan 2012|
|Pages||178 - 180|
The Appellate Division in the case of Van Wyk v Lewis 1924 AD 438 held that the doctrine of res ipsa loquitur does not apply in medical negligence cases in South Africa. Res ipsa loquitur is a doctrine or maxim that functions in the realm of the Law of Evidence and gives rise to a permissible inference which may be drawn if it is sustained by the proven facts. (It was suggested in Macleod v Rens 1997 3 SA 1039 (E) 1048 that res ipsa loquitur is not a doctrine but rather a maxim as it propounds no principle but is rather a particular form of inferential reasoning.) The maxim applies in those instances where a plaintiff proves an injurious result caused by an instrumentality which was in or under the exclusive control of the defendant or an injurious result following upon the happening of an occurrence solely under the defendant's control. It is furthermore said that the maxim can only be applied where the negligence alleged depends on absolutes and not relatives. And, it does not apply to cases that fall outside the knowledge and understanding of an ordinary, reasonable person. The book Res Ipsa Loquitur & Medical Negligence: A Comparative Survey purports to establish conclusively that the approach of the South African courts, that the doctrine should never find application in medical negligence cases, is untenable and out of touch with modern approaches.
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