A recent judgment handed down by the Supreme Court of Appeal, Meyers v MEC, Department of Health, Eastern Cape 2020 (3) SA 337 (SCA), has raised the spectre of the return of the previously discarded maxim of res ipsa loquitur. The maxim was explained by Ponnan JA in Cecilia Goliath v Member of the Executive Council for Health, Eastern Cape  ZASCA 182 as “a convenient Latin phrase used to describe the proof of facts which are sufficient to support an inference that a defendant was negligent and thereby to establish a prima facie case against him” [para 10].
After defining the maxim in Goliath, Ponnan JA concluded that the time had come to heed the call of Lord Justice Hobhouse to jettison it from our legal system, and replace it with the phrase “prima facie” case. The result of this replacement would ensure that there would be no shifting of the onus from the plaintiff to the defendant, no presumption against the defendant, and the enquiry at the end of the case would always be whether the plaintiff has discharged the onus resting upon her in connection with the issue of negligence [para 12].
Notwithstanding this rejection of the maxim in Goliath, Ponnan JA returned to it (perhaps unwittingly) in Meyers. The facts of Meyers were that on 2 March 2010, Meyers was operated on in the Livingstone Hospital Port Elizabeth by Dr Richard Vogel, a surgeon employed by the Department of Health Eastern Cape. Her gall bladder was removed by a minimal access surgical procedure, and it was common cause that during this procedure two small injuries were caused to her bile duct with the result that bile leaked into her stomach after the operation and this led to an infection. This required a second surgery, also performed by Dr Vogel, one week later.
Meyers instituted a claim for damages in the Eastern Cape Division of the High Court, Port Elizabeth against the MEC for Health. On the central issue whether Dr Vogel had been negligent in causing the injuries, Dr B H Pienaar testified on behalf of Meyers. Professor P C Bornman was called as an expert witness on behalf of the MEC.
Dr Pienaar was of the view that the mere fact that the injuries were caused, irrespective of whether they were caused by the surgeon or a defective instrument, raised an inference of negligence. In essence, this amounted to a res ipsa loquitur argument. Prof Bornman took the view that since only a minor injury had been caused to the bile duct, Dr Vogel had not acted negligently.
In dismissing Meyers’ claim, the Eastern Cape Division of the High Court, per Revelas J, found that Dr Pienaar’s approach left no room for human error and set an unreasonably high standard for surgeons. In essence, this was a rejection of the res ipsa loquitur argument. Instead, she found that the error that had caused the injury was one that any reasonably competent practitioner in Dr Vogel’s field could have made, and that no negligent conduct had been established.
On appeal to the SCA, the court was divided 3 to 2 on the question of negligence. The minority judgment, per Plasket JA, concurred with Revelas J that injury to the bile duct was part and parcel of the risks inherent in the gall bladder removal procedure. Furthermore, Dr Vogel, as a reasonable surgeon, would have foreseen the possibility of harm to Meyers’ bile duct, but he took the necessary steps to avoid that harm from materializing by following all standard procedures for operations of that type. Therefore, in the view of the minority, Meyers had not discharged the onus on her to prove on a balance of probabilities that Dr Vogel was negligent when he caused the injury [para 64].
The majority judgment, per Ponnan JA, took the opposite view, and in reaching their conclusion that Dr Vogel was negligent, it appears that the judges were seduced by the res ipsa loquitur argument put forward by Dr Pienaar. What follows are the steps of the reasoning process that Ponnan JA followed to reach his dubious conclusion that Dr Vogel had been negligent:
- The court was dealing with an unconscious patient who had suffered an admitted injury. This raised the inference of negligence on the part of Dr Vogel [para 71];
- This inference of negligence was sufficient to place an evidentiary burden on Dr Vogel to shed light upon the circumstances leading to the injury [para 71];
- To shed light on what happened, Dr Vogel needed to advance an explanatory account that the injury must have been due to some unpreventable cause, even if the cause is unknown [para 71];
- Dr Vogel could not recall the particular operation (having performed over 400 operations since the one in casu) and, save for his operating note which shed no light on the matter, there was simply no acceptable evidence to show how the injury came to be inflicted [para 80];
- Therefore, since there was an inference of negligence which had not been rebutted, this meant that Dr Vogel was negligent [para 82].
There are many criticisms that could be leveled at this finding and the reasoning that was used to reach it. The majority ignored Dr Vogel’s evidence that (i) he followed all the required procedures for an operation of this type [paras 31 and 62] (ii) he foresaw the risk of harm to the bile duct, and took precautionary measures by using a blunt instrument to expose the ducts [paras 23, 24 and 38]; and (iii) he in fact had advanced a theory of what happened, namely that the injuries occurred when he attempted to remove adhesions from the gallbladder before removing it [paras 18, 19, 23, 27 and 47].
But perhaps the most egregious aspect of this finding is that it flies in the face of Ponnan’s own judgment in Goliath. In that case, Ponnan JA quoted with approval the following statement by Wessels JA in Van Wyk v Lewis 1924 AD 438:
"We cannot determine in the abstract whether a surgeon has or has not exhibited reasonable skill and care. We must place ourselves as nearly as possible in the exact position in which the surgeon found himself when he conducted the particular operation and we must then determine from all the circumstances whether he acted with reasonable care or negligently. Did he act as an average surgeon placed in similar circumstances would have acted, or did he manifestly fall short of the skill, care and judgement of the average surgeon in similar circumstances? If he falls short he is negligent" [para 15].
In Meyers, Ponnan JA ignored his own exhortation to place himself in the position of Dr Vogel to determine whether the doctor had acted with reasonable care. Instead, Ponnan JA seemed to be troubled by Dr Vogel’s inability to recall the minute details of an operation that had taken place several years before, and his inability to explain with certainty why the injury to the bile duct had occurred. This inability, according to Ponnan, justified the conclusion that he had been negligent.
Upon close scrutiny of this finding, the only way that Ponnan JA was able to arrive at this conclusion was by proceeding from the premise that because some injury had occurred, and no satisfactory explanation had been provided, there had to have been negligence. This is nothing but res ipsa loquitur dressed up in fancy garb.
In a unanimous decision by the SCA in 2013, Buthelezi v Ndaba  ZASCA 72, Brand JA rejected the evidence of the medical expert in that case to the effect that the injury to the plaintiff’s bladder would not have occurred if the doctor was not negligent. He pointed that this was reminiscent of the res ipsa loquitur maxim which had been discarded by our law in light of Van Wyk v Lewis [para 16].
In concluding that the error in Buthelezi was one that a reasonably competent practitioner might have made, Brand JA observed that the human body and its reaction to surgical intervention is far too complex to conclude that, because there was a complication, the surgeon must have been negligent in some respect. He stated that “Logic dictates that there is even less room for application of the [res ipsa loquitur] maxim in a case like this where it has not even been established what went wrong; where the views of experts are all based on speculation – giving rise to various, but equally feasible possibilities – as to what might have occurred” [para 16].
In Meyers, if Ponnan JA had truly rejected the res ipsa loquitur maxim like he did in Goliath, he would not have found any inference of negligence against Dr Vogel purely because an injury to the plaintiff’s bile duct had arisen during the course of the surgery. Instead, he would have followed Brand JA’s reasoning that, since it had not been established what went wrong, the court was faced with various speculative opinions by experts giving rise to equally feasible possibilities of what might have occurred. Without the res ipsa loquitur maxim to avail him, the only conclusion that Ponnan JA could have reached was that of the minority judgment: Meyers had not discharged the onus on her to prove on a balance of probabilities that Dr Vogel was negligent when he caused the injury.
Ivor Heyman is an advocate at the Johannesburg Bar. He publishes articles of interest to attorneys and their clients. For questions or comments you can reach him at email@example.com or 061-120-8740.