Summary for Expert Witnesses: This case is instructive regarding the court’s approach to the assessment of negligence, the court’s approach to resolving disputes between expert witnesses, and whether treatment accorded with sound medical practice. It should be noted that this is the locus classicus (leading case) on the approach which the courts should take to resolving disputes between experts, and the decisiveness of the question of whether, and to what extent, the experts’ opinions are founded on logical reasoning. It should also be noted that, although in this case the approach to resolving disputes between experts occurred in the context of the question of the negligence of a medical practitioner, the principle that the court will consider the extent to which the experts’ views are founded on logical reasoning is of general application, and will be relevant to any dispute between experts.

The case also demonstrates the approach by the courts to resolving the question of negligence, and establishes that the question of negligence (reasonableness) is one for the court to determine, after having taken into account the relevant evidence – expert and otherwise – and the applicable legal principles. Finally, the possibility of an adverse costs order against a dishonest expert witness should be noted.

Summary for Mediators: The comments in Summary for Expert Witnesses above are relevant to Mediators.

This is an important judgment for mediators dealing with any matter involving a dispute between experts. Mediators should familiarise themselves with the general approach to resolving such disputes.

In addition, the approach to the determination of negligence (the assessment of reasonableness) provides important guidance on the appropriate interplay between expert evidence and the role of the court, which is instructive in the proper approach to the question of negligence to be adopted in the mediation process.

In matters involving alleged medical negligence, a detailed exposition of the proper approach to the assessment of expert evidence is set out in this judgment, and will be relevant where such disputes form part of the mediation.

Legal principles:

Expert evidence – the role of the court – approach to the question of negligence (reasonableness): The question of negligence (reasonableness) is one for the court to determine on the basis of the various, and often conflicting, expert opinions presented. (Para 34)

Expert evidence – approach to assessing conflicting expert opinions: As a rule, the determination of conflicting expert opinions will not involve considerations of credibility, but rather the examination of the opinions and the analysis of their essential reasoning, preparatory to the court’s reaching its own conclusion on the issues raised.(Para 34). What is required in the evaluation of such evidence is to determine whether and to what extent their opinions advanced are founded on logical reasoning. (Para 36)

Expert evidence – approach to assessing conflicting expert opinions; whether treatment accorded with sound medical practice:

1. The court is not bound to absolve a defendant from liability for allegedly negligent medical treatment or diagnosis just because evidence of expert opinion, although genuinely held, is that the treatment and diagnosis in issue accorded with sound medical practice. The court must be satisfied that such opinion has a logical basis, in other words that the expert has considered comparative risks and benefits and has reached “a defensible conclusion”.(Para 37)

2. If a body of professional opinion overlooks an obvious risk which could have been guarded against it will not be reasonable, even if almost universally held. Para (38)

3. A defendant can properly be held liable, despite the support of a body of professional opinion regarding the conduct as acceptable, if that body of opinion is not capable of withstanding logical analysis and is therefore not reasonable. (Para 39)

4. However, it will seldom be right to conclude that views genuinely held by a competent expert are unreasonable. The assessment of medical risks and benefits is a matter of clinical judgment which the court would not normally be able to make without expert evidence and it would be wrong to decide a case by simple preference where there are conflicting views on either side, both capable of logical support. Only where expert opinion cannot be logically supported at all will it fail to provide “the benchmark by reference to which the defendant’s conduct falls to be assessed.” (Para 39)

5. Expert scientific witnesses do tend to assess likelihood in terms of scientific certainty. Expert witnesses should, as far as they possibly can, express the prospects of an event’s occurrence in terms of a greater or lesser than 50% chance. (Para 40).

Expert evidence – costs – adverse costs order – misleading operation report: A false and misleading operation report and false evidence at the trial may result in a punitive cost order against the doctor. (Paras 108 and 109)

Case Note:

The Facts

The plaintiffs were the parents of a seventeen-year-old boy who had suffered a cardiac arrest and lapsed into a coma during a surgical operation. They sued the first defendant as the owner of the clinic where the operation was performed, and the second defendant, the anaesthetist.

The plaintiffs’ son had sustained an injury to his nose when taking part in sport. He consulted a plastic and reconstructive surgeon who recommended a rhinoplasty. The object was to remove a bump on the dorsal aspect of the nose and to correct a deviated septum. The reconstructive surgeon was assisted by another surgeon and by the second defendant, a specialist in anaesthesiology, was the anaesthetist. All three doctors were in private practice.

The patient underwent corrective nasal surgery and suffered cardiac arrest whilst under general anaesthesia. By the time resuscitation had restored heart function he had sustained major brain damage as a result of cerebral anoxia. The patient was left in a permanent vegetative state.

Negligence was alleged against the anaesthetist as the second defendant in relation to the cardiac arrest and joint negligence was alleged in respect of the resuscitation process against the anaesthetist and the clinic where the operation was performed.

The Issues

The parties had agreed that only the question of liability would be determined at this stage. The court dealt with questions relating to negligence and causation.

Order

The appeal court, having considered the relevant facts and legal principles, found that negligence had not been established and dismissed the appeal.

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Published on 15 May 2026

Found in:

The South African Medico-Legal Reports

Michael and Another v Linksfield Park Clinic and Another