n Stellenbosch Law Review = Stellenbosch Regstydskrif - Res Ipsa Loquitur & Medical Negligence: A Comparative Survey, P van den Heever & P Carstens : book review




The Appellate Division in the case of 1924 AD 438 held that the doctrine of does not apply in medical negligence cases in South Africa. 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 1997 3 SA 1039 (E) 1048 that 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 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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