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Medical Negligence – How to prove your case

Medical Negligence – How to prove your case


The test for negligence and that of the reasonable person can simply be described as: was the care of an acceptable standard but in actual fact, there are more aspects to this. In Kruger v Coetzee, the court expressed the test for negligence as follows:

  1. A person in the same position as the defendant would (i) foresee the possibility of causing harm to another person and causing him/her patrimonial loss and (ii) would then take reasonable steps to prevent such harm from occurring; and
  2. The defendant then failed to take such reasonable steps.

For a medical negligence claim to succeed, one needs to show that:

  • The hospital/medical practitioner undertook a legal duty of care in respect of his/her patient;
  • This legal duty was breached;
  • Such breach resulted in injury; and
  • This injury resulted in financial or emotional loss or both.

As a general note, some example of misconduct that you can claim against a medical practitioner or hospital include:

  • Failure to keep adequate or accurate records;
  • Failure to disclose the risk of any procedures;
  • Failure to administer the right treatment timeously; and
  • Inadequate monitoring of a patient.

A Road Accident Fund claim, on the other hand, is instituted in order to recover compensation when a person has suffered injury as a result of a motor vehicle accident. You can claim from the Road Accident Fund if:

  • You sustained an injury in a motor vehicle accident;
  • The breadwinner of a family is killed, then the surviving spouse and children have suffered loss of financial support of the breadwinner; and
  • A minor is injured and requires medical treatment, then the parent can claim for medical costs incurred and the minor can claim for bodily injuries.

To prove a claim against the Road Accident Fund, one needs to prove that:

  • Their damage was caused by a motor vehicle;
  • That such motor vehicle was driven negligently; and
  • That bodily injury or even death resulted from a motor vehicle accident.


Proving negligence in civil cases is on a balance of probabilities and the onus rests on the plaintiff and negligence as well as damage due to the negligence must be proven. Furthermore, proving negligence relies heavily on an objective expert’s knowledge and opinion in the form of a medico-legal report. Medico-legal reports are used in both medical negligence claims and road accident fund claims. In either of these matters, a medico-legal report helps prove a claim by showing that injury was in fact sustained, that such injury was caused by the act of the defendant and express the extent and duration of injury caused by the defendant. These reports may also include further medical investigations and treatment.


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