Van Wyk v Lewis [1] is an important case in South African law, particularly in the area of delict and on the question of negligence.
The defendant, a surgeon, had performed an urgent and difficult abdominal operation upon the plaintiff. The operation took place in a hospital at night, assisted by an anesthetist and a qualified nurse on the hospital staff who acted as theatre sister. At the conclusion of the operation, one of the swabs used by the defendant was overlooked and remained in plaintiff's body, from which it passed after a lapse of twelve months. The evidence showed that:
In an action against the defendant for damages for negligence in failing to remove the swab, the court held that negligence could not be inferred from the mere fact that the accident happened; the onus of establishing negligence lay upon plaintiff. Although the defendant, in performing the operation, was bound to exercise all reasonable care and skill, it was a reasonable and proper practice to leave the duty of checking the swabs to the theatre sister, so the defendant, in following that practice, was not guilty of negligence. Assuming, without deciding, that the sister was negligent in checking the swabs, the court held that the defendant was not liable for the result of such negligence.
The decision of the Queenstown Circuit Local Division, in Van Wyk v Lewis, was thus confirmed.
Negligence is a failure to exercise appropriate care expected to be exercised in similar circumstances.
Res ipsa loquitur is a doctrine in common law and Roman-Dutch law jurisdictions under which a court can infer negligence from the very nature of an accident or injury in the absence of direct evidence on how any defendant behaved in the context of tort litigation. Although specific criteria differ by jurisdiction, an action typically must satisfy the following elements of negligence: the existence of a duty of care, breach of appropriate standard of care, causation, and injury. In res ipsa loquitur, the existence of the first three elements is inferred from the existence of injury that does not ordinarily occur without negligence.
A tort is a civil wrong, other than breach of contract, that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable by the state. While criminal law aims to punish individuals who commit crimes, tort law aims to compensate individuals who suffer harm as a result of the actions of others. Some wrongful acts, such as assault and battery, can result in both a civil lawsuit and a criminal prosecution in countries where the civil and criminal legal systems are separate. Tort law may also be contrasted with contract law, which provides civil remedies after breach of a duty that arises from a contract. Obligations in both tort and criminal law are more fundamental and are imposed regardless of whether the parties have a contract.
Bolton v. Stone[1951] AC 850, [1951] 1 All ER 1078 is a leading House of Lords case in the tort of negligence, establishing that a defendant is not negligent if the damage to the plaintiff was not a reasonably foreseeable consequence of his conduct. The plaintiff was hit by a cricket ball which had been hit out of the ground; the defendants were members of the club committee.
In tort law, a duty of care is a legal obligation that is imposed on an individual, requiring adherence to a standard of reasonable care to avoid careless acts that could foreseeably harm others, and lead to claim in negligence. It is the first element that must be established to proceed with an action in negligence. The claimant must be able to show a duty of care imposed by law that the defendant has breached. In turn, breaching a duty may subject an individual to liability. The duty of care may be imposed by operation of law between individuals who have no current direct relationship but eventually become related in some manner, as defined by common law.
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 is an English tort law case that lays down the typical rule for assessing the appropriate standard of reasonable care in negligence cases involving skilled professionals such as doctors. This rule is known as the Bolam test, and states that if a doctor reaches the standard of a responsible body of medical opinion, they are not negligent. Bolam was rejected in the 2015 Supreme Court decision of Montgomery v Lanarkshire Health Board in matters of informed consent.
Volenti non fit iniuria is a Roman legal maxim and common law doctrine which states that if someone willingly places themselves in a position where harm might result, knowing that some degree of harm might result, they are not able to bring a claim against the other party in tort or delict. Volenti applies only to the risk which a reasonable person would consider them as having assumed by their actions; thus a boxer consents to being hit, and to the injuries that might be expected from being hit, but does not consent to his opponent striking him with an iron bar, or punching him outside the usual terms of boxing. Volenti is also known as a "voluntary assumption of risk".
The South African law of delict engages primarily with 'the circumstances in which one person can claim compensation from another for harm that has been suffered'. JC Van der Walt and Rob Midgley define a delict 'in general terms [...] as a civil wrong', and more narrowly as 'wrongful and blameworthy conduct which causes harm to a person'. Importantly, however, the civil wrong must be an actionable one, resulting in liability on the part of the wrongdoer or tortfeasor.
Vorster v Santam Insurance Co Ltd and Another is an important case in South African law, in particular the law of delict. It was heard from 17 to 19 November, 1972, with judgment handed down on 22 November.
Mafesa v Parity Versekeringsmaatskappy Bpk (In Likwidasie) is an important case in South African law. It was heard in the Orange Free State Provincial Division on 15 and 16 February 1968, with judgment handed down on 29 February. The presiding officer was Smit RP.
Smit v Abrahams is an important case in South African law. It was heard in the Appellate Division on March 15, 1994, with judgment handed down on May 16. Botha AR, EM Grosskopf AR, Kumleben AR, Van Den Heever AR and Mahomed Wn AR were the judges.
Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd is an important case in South African law. It was heard in the Supreme Court of Appeal on 5 November 2008, with judgment handed down on 26 November. The judges were Scott JA, Farlam JA, Brand JA, Lewis JA and Jafta JA. JH Dreyer SC appeared for the appellant, and AC Ferreira SC for the respondent.
Kruger v Coetzee is an important case in South African law, in particular in the law of delict and on the question of negligence.
Truter and Another v Deysel is an important case in South African law, with particular resonance in civil procedure and medical malpractice. It is also frequently quoted or invoked for its definition of "cause of action". It was heard in the Supreme Court of Appeal on 24 February 2006; judgment was delivered by Judge of Appeal Belinda van Heerden on 17 March. The case was an appeal from a decision in the Cape Provincial Division of the High Court of South Africa.
Kragga Kamma Estates CC and Another v Flanagan is an important case in the South African law of contract, an appeal from a decision in the South Eastern Cape Local Division by Jansen J. It was heard in the Appellate Division on August 19, 1994, with judgement handed down on September 29. The presiding officers were EM Grosskopf JA, Nestadt JA, Kumleben JA, Howie JA and Nicholas AJA. The appellants' attorneys were Tobie Oosthuizen, Port Elizabeth, and Webbers, Bloemfontein. The respondent's attorneys were Jankelowitz, Kerbel & Schärges, Port Elizabeth, and Lovius-Block, Bloemfontein. HJ van der Linde appeared for the appellants; JRG Buchanan SC for the respondent.
East London Model Dairy Co-Operative v Toyk is an important case in South African law. An action for an order cancelling a sale, and for the refund of the purchase price, it was heard in the Eastern Districts Local Division by De Villiers J November 9, 10 and 11, 1954, with judgment handed down on December 9. The plaintiffs' attorneys were RG White, Gillett & McConnachie. The defendant's attorneys were Segal & Pincus. AW Back, QC, appeared for the plaintiff; NC Addleson for the defendant
In Langley Fox Building Partnership (Pty) Ltd v De Valence, an important case in South African law, the Supreme Court of Appeal once more affirmed that a duty cast upon a defendant might be such that it is discharged only if reasonable precautions to avoid the harm are actually taken, and that the defendant who appoints another to take those steps, and fails to do so, will be liable for the failure, although it was careful to emphasise that Stratford ACJ did not purport to say that "there might be liability as an invariable rule whenever the work entails danger to the public." Goldstone AJA said that "the correct approach to the liability of an employer for the negligence of an independent contractor is to apply the fundamental rule that obliges a person to exercise that degree of care which the circumstances demand."
In Dukes v Marthinusen, the Supreme Court of Appeal held it to be consistent with principles of the law of delictual liability that a duty cast upon a defendant might be such that it is discharged only if reasonable precautions to avoid harm are actually taken, and that the defendant who appoints another to take those steps, and fails to do, will be liable for the failure. In casu, the defendant had employed an independent contractor to demolish certain buildings. In a claim for damages arising from the negligent performance of the work, Stratford ACJ said the following after considering various cases in South Africa and in England:
The English law on the subject as I have stated it to be is in complete accord with our own, both systems rest the rule as to the liability of an employer for any damage caused by work he authorises another to do upon the law of negligence. It follows from the law as I have stated it to be that the first and crucial question in this case is to ascertain on the facts of the case whether there was a duty on the employer who authorised the demolition of these buildings to take precautions to protect the public using the highway from possible injury. If there was such duty it could not be delegated and the employment of an independent contractor is an irrelevant consideration.
The civil liability of a recreational diver may include a duty of care to another diver during a dive. Breach of this duty that is a proximate cause of injury or loss to the other diver may lead to civil litigation for damages in compensation for the injury or loss suffered.
Doherty v Reynolds and St. James's Hospital Board [2004] IESC 42 was a case of medical negligence in which the Supreme Court of Ireland confirmed that, under the doctrine of res ipsa loquitur, where an injury would not be expected to occur without negligence in the management of something, negligence on the part of those charged with the thing's management may be presumed from the mere fact of injury.
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