South Africa: Mistakes Are Not Always Negligent

Last Updated: 22 November 2013
Article by Raizel Davidow

In Buthelezi v Ndaba 575/2012 [2013] ZASCA 72, the Supreme Court of Appeal (SCA) finally refused to draw an inference of negligence in a medical negligence case. In so doing, it settled the debate that has been raging in South Africa about whether the maxim res ipsa loquitur (the thing/ occurrence speaks for itself) can be applied in medical negligence cases.

The impact of the res ipsa loquitur principle is that certain events create a presumption of negligence which, without sufficient evidence presented by the defendant to exculpate him or her, will result in a finding of negligence.

This principle is often applied in collision cases, where for example, skidding or driving on the wrong side of the road would automatically be considered negligent, if there is no sufficient reason furnished by the defendant to the court to exonerate him or her.

It is natural to presume that certain severe errors are, in the absence of an appropriate explanation, automatically negligent. For example, when a doctor amputates the incorrect limb or leaves an instrument in the patient's abdomen after surgery.

Case law

In the Appellate Division decision of Van Wyk v Lewis 1924 AD 438, the majority of the court found that the retention of a swab in a patient's abdomen, during surgery did not warrant the application of the res ipsa loquitur principle. The minority decision has, however, queried whether the maxim should not be applied in certain cases.

The Van Wyk v Lewis decision has been criticized by authors such as Van den Heever and well known medical law experts, Carstens and Pearmain, for several reasons such as:

  • comparison with some other delictual matters - why, it is argued, is skidding in a vehicle considered automatically negligent, but leaving a surgical instrument in a patient's abdomen is not necessarily negligent?
  • the fact that victims of medical negligence are at a disadvantage as they often do not have sufficient information to prove what occurred, being unconscious, ill or lacking the technical knowledge of the procedures performed or treatment provided.
  • the conspiracy of silence, which means patients often have difficulty retaining experts to testify against other medical practitioners and impacts their constitutional rights to have equal access to court.

It is for these reasons that many academics have postulated that the SCA should consider revisiting the Van Wyk decision.

In Truter v Deysel 2006 (4) SA 168, there was an obiter recognition of the res ipsa loquitur principle to certain medical negligence cases. The authors Carstens and Pearmain postulated that if the SCA was presented with the opportunity to reconsider the Van Wyk v Lewis decision, it would apply the res ipsa loquitor principle to certain medical negligence cases.

The Buthelezi decision is likely to disappoint these authors as it reiterated the principle referred to in Van Wyk v Lewis.

The facts

In the Buthelezi matter, the plaintiff launched a medical negligence claim against the defendant for complications that ensued (vesioc-vaginal fistula) as a result of a hysterectomy performed by him.

There were opposing views by the experts as to the likely cause of the fistula and various theories were provided. The expert on behalf of the plaintiff theorised that:

  • the damage was caused by a lack of blood supply to the bladder wall when the bladder wall separated from the uterus or when the uterus was removed from the vaginal vault;
  • this would have occurred by the defendant's failure to ensure that the bladder was kept separate and safe during the course of the procedure; and
  • this inevitably gave rise to the inference that reasonable precautions were not taken and the defendant was therefore negligent.

The court found this reasoning as "being reminiscent of the res ipsa loquitur maxim".

The defendant's raised other possible causes for the damage. He postulated that a small cut in the bladder wall occurred when the bladder was separated from the uterus and the injury could have been so small that it was not noticeable during the procedure. This injury could, in light of the plaintiff's pre-existing morbidities, have developed into a fistula over time.

The defendant's expert noted that this is a recognized complication and that "even if the operation... is performed to an adequate standard... it would be generally agreed that inadvertent bladder injury is a recognized complication of hysterectomy and occur even with careful surgical technique".

Accordingly, a doctor cannot be held negligent simply because something went wrong. The SCA aptly referred to the Castell v de Greef 1993 (3) SA 501 (C) decision which stated "if the error is one which a reasonably competent practitioner might have made, it will not amount to negligence".

The SCA pronounced that the facts of the Buthelezi case did not warrant application of the res ipsa loquitur maxim, when it was unclear what caused the defect and the cause of same was based on mere speculation. The court therefore confirmed that a simple error cannot be considered to amount to negligence.


While the critics of the Van Wyk decision would be dissatisfied with this dictum, they may well find scope to distinguish a case with has clearer causes for the damage. This debate may therefore continue.

There may be some merit in not allowing this maxim to apply. Doctors and professionals often make decisions and take steps based on their experience and knowledge and even in the best hands complications occur.

The SCA's refusal to apply the res ipsa loquitur maxim to the facts provides some measure of comfort for defendants in that litigants still need to prove the factual basis for negligence to be proved.

What is clear is that the Buthelezi judgement cautions litigators against assuming that errors or mistakes are automatically negligent. If a professional in similar circumstances would have reasonably made the mistake, it will not be considered negligent.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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