Law of delict notes: causation

Compiled by Nuha Alli

Distinguish between factual and legal causation
A casual nexus between conduct and damage is required for a delict. A person can
thus not be liable if he has not caused any damage. various so-called theories of
causation have been developed and the most important are the conditio sine qua
non theory, the adequacy theory, direct consequence theory, foreseeability theory
and flexible approach.
The question of legal causation arises when determining which harmful
consequences actually caused by the wrongdoer’s wrongful culpable act, he should
be liable. For legal causation to arise, there must be factual causation.
Factual causation can be thought of as a factual enquiry which comprises of: did the
defendant’s wrong conduct cause or contribute harm to the plaintiff? If the answer is
affirmative, one moves on to legal causation.
Conditio sine qua non to inquire whether the one fact follows from another. This is
indeed the natural way to determine a causal link.
Explain the conditio sine qua non doctrine and apply it to a factual situation
This is also known as the ‘but for’ test. An act is cause of a result if the act cannot be
thought away without the result disappearing simultaneously. The act must in other
words be conditio sin qua non of the result. International Shipping Co v Bentley : the
court formulated this doctrine as follows: thie first inquiry is a factual one and relates
to the question whether the defendant’s wrongful act was a cause of the plaintiff’s
loss. In order to apply this test, one must make a hypothetical enquiry as to what
would have probably happened but for the wrongful conduct of the defendant. This
involves a mental elimination of the wrong commission. In the case of an omission,
the mental image must apply the ordinary course of human events. This should be
an objective test as held by Constitutional Court.
Explain the application of conditio sin qua non in an omission
S v Van As: the court attempted to test the casual connection between the omission
and the death by asking whether a reasonable search would have prevented the
death of the children. The court inserted the positive conduct.
Minister of Police v Skosana
Facts:
Whilst under the influence under alcohol, respondent’s husband, Timothy Skosana
was involved in a car accident and sustained injuries. He was taken to the police
station and after being processes. He was taken to district surgeon who performed a
clinical examination on him. At that point, the district surgeon did not observe any
serious injuries. When Timothy’s cell door was opened the next morning at 7:45, he
complained about severe abdominal pain. Two hours later. A constable walked with
him to the rooms of the district surgeon who examined him and diagnosed him with
an ‘acute abdomen’ The doctor wrote a note to instruct the Constable to summon an
ambulance. There was a 2- hour delay in the ambulance. Mr S only arrived 2 hours
later. His condition was so serious and he died.
Timothy’s widow and children claimed damages from the Minister of Police based on
the officers’ negligent failure to provide him with prompt medical help. The negligent
delay in furnishing the deceased with medical aid and treatment, for which Davel and
Mahela were responsible, can only be regarded as having caused or materially
contributed to his death if the deceased would have survived but for the delay. This
is the crucial question and it necessarily involves a hypothetical enquiry into what
would have happened had the delay not occurred.
Using a hypothetical chain of events based on prompt and efficient conduct by the
police, the Court decided, by a majority that Skosana would have not died. Police’
omission was a necessary condition and thus a factual cause of Timothy’s death.
Thus, one can conclude that the police did factually cause Jacob’s death by
omission of not taking him to receive medical help. The dependants can sue the
police.
What is meant by legal causation?
When determining which harmful consequences caused by the wrongdoer’s
wrongful, culpable act he should be liable for. Which consequences should be
imputed onto him?
Name 5 theories of legal causation
1. The flexible approach
2. Adequate causation
3. Direct consequences
4. Theory of fault
5. Reasonable foreseeability criterion
Flexible approach to legal causation
In S v Mokgethi, Van Heerden AJ held that there is no single and general criterion for
legal causation that is applicable in all instances. The basic question is whether there
is a close enough relationship between the conduct and its consequences for such
consequence to be imputed to the wrongdoer in view of policy considerations based
on reasonableness, fairness and justice.
S v Mokgethi
In this case the deceased was a bank teller, and was shot between the shoulder
blades by one of the appellants during the robbery. The deceased did not die
immediately but only six months later. The deceased had become a paraplegic and
had to make use of a wheelchair. His condition improved that he could work again.
He was later readmitted for suffering from serious pressure sores and septicaemia
which had developed because he failed to change his position in the wheelchair
frequently as he had been advised to do so. The wounding of the deceased could
not be regarded as the jurdicial cause of the deceased’s death for the purposes of a
charge of murder.
Foreseeability approach
The question is whether the defendant should reasonably have foreseen the
consequences that resulted from his or her conduct. If the answer is yes, liability
results. Does not require that all harm should be seen. Not necessary to see the
precise way, in which harm occurred.
Adequate test
Whether it would happen in the ordinary course of human events. Not used very
much in SA.
Direct consequences
An actor is liable for all the direct consequences of his negligent conduct. In other
words, liability is not necessarily limited to the foreseeable consequences of his
conduct. The consequence cannot be broken by novus actus interveniens.
While running to catch a train, X bumps into Y, a frail old lady. Y falls and breaks her
leg. She is sent to hospital. Her leg is set in plaster and she is given crutches. A
week later, while using her crutches she falls on a smooth floor and breaks her arm.
Is there factual causation and is there a legal causation link between X’s conduct
and Y’s broken arm?
The generally accepted test for factual causation is the conditio sine qua non test or
‘but for test’. This entails mentally eliminating, or thinking away, the conduct. If the
damage then also disappears, a factual casual link is present between the conduct
and the damage. this test is subject to much criticism. We must conclude that if X
had not bumped Y, she would not have broken her leg and therefore a factual causal
link is present between X’s conduct and Y’s damage.
The test for legal causation is the so-called flexible approach as formulated in S v
Mokgethi. In this case the deceased was a bank teller, and was shot between the
shoulder blades by one of the appellants during the robbery. The deceased did not
die immediately but only six months later. The deceased had become a paraplegic
and had to make use of a wheelchair. His condition improved that he could work
again. He was later readmitted for suffering from serious pressure sores and
septicaemia which had developed because he failed to change his position in the
wheelchair frequently as he had been advised to do so. The wounding of the
deceased could not be regarded as the jurdicial cause of the deceased’s death for
the purposes of a charge of murder. The main legal question is whether there is a
close enough relationship between the wrongdoer’s conduct and its consequences
for such consequence to be imputed to the wrongdoer in view of policy
considerations based on reasonableness, fairness and justice. The conclusion in
terms of these facts is that Y’s broken arm is probably too remote and should not be
imputed to the wrongdoer. One could also say the second fall was novus actus
interveniens which strengthens the conclusion that there is no legal casual link
between X’s conduct and Y’s broken arm.
What is a novus actus interveniens?
This is an independent event which, after the wrongdoer’s act has been concluded
either caused or contributed to the consequence concerned.
What was the view in S v Mokgethi?
The court held that the omission by the victim to move around in his chair and thus
prevent sores from developing was a novus actus interveniens and therefore his
sores were the factual cause of his death but not the legal cause of his death.
What are the ways that novus actus interveniens can be brought about?
It may be brought about by the conduct of the plaintiff, conduct of third party or by
natural forces. Qualify only when the event was not foreseeable.
Explain what is meant by egg-skull case
In some cases, a victim may suffer more serious harm than a perpetrator intended,
because of some prior weakness of the victim, whether it is known or not. The
weakness may be physical, psychological or financial. In terms of talem qualem rule
you take your victim as you find them. The perpetrator will be liable for the full extent
of harm.
Wilson v Brit
In this case the plaintiff was injured when employees of the defendant, in
demolishing scaffolding around a building in negligent manner, caused a pole to fall
down which struck the plaintiff on his head. A few years earlier, the plaintiff has been
stabbed in the forehead with a knife and in the ensuing operation to extract the piece
of the blade; a portion of his skull bone was removed. The skin became attached to
the brain. The blow of the pole against the rear of the head caused a more serious
brain injury than otherwise would have been the case. the court decided that the
defendant was liable for the full extent of the injury, despite the fact the injury may
have been partially attributed to the existing weak spot.