MS STAROSTA’S CLASS

CRIMINAL LAW
LAWS2014A/3040A/3053A

CAUSATION LECTURES
LEGAL CAUSATION CONTINUED
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4. CONDUCT BY THIRD PARTIES IN THE FORM OF MEDICAL

INTERVENTION

IMPORTANT PRINCIPLES:
4.1 Where a person is so seriously injured that they would die in the absence of
medical intervention, the fact that the intervention is not provided cannot be
seen as an NCI (death is foreseeable and not independent of the Acc’s conduct).
[NCI is unlikely where the Accused’s original wound was mortal]
4.2 Medical intervention will only be an NCI if it is grossly negligent as it is only
such gross negligence that would satisfy the “abnormal/unusual and
independent” requirements (example: hospital amputates wrong leg which leads
to sepsis and then death in a situation where the Accused put the victim in
hospital with a broken arm).
4.3 Provided that medical treatment is given with goodwill and with reasonable care
(no negligence), the accused cannot argue that a misdiagnosis or mistake in
treatment is an NCI as the medical intervention would not have been
independent of the accused’s conduct, that is, the victim would not need to be
treated or diagnosed in the first place if they had not been wounded by the
accused. (Mabole)

R v Mabole ‘68
`The Acc stabbed the deceased in the abdomen. The wound was not considered
particularly dangerous however, the deceased’s condition deteriorated without a known
cause.
`Decision was made to see an experienced surgeon to conduct an exploratory procedure
to confirm whether there were any penetrating wounds.
`The procedure, whilst conducted with reasonable skill and care, caused a fatal
pulmonary embolism (unrelated to the original stab wound).
`Accused argued that the medical treatment was the legal cause of death (NCI).
HELD: See point 3 above.

S v Williams ‘86
`The Acc shot the victim in the neck.
`In an attempt to save her life, medical treatment was given which resulted in the victim
being put on a respirator which was artificially helping her heart and lungs to function.

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`Later, it became clear that the brain had irreversibly ceased to function and the decision
was taken to switch off the machines resulting in a cessation of heartbeat and breathing.
`Accused tried to argue that switching off the machines was the NCI.
HELD: Even we accept that there is no legal death until there is cessation of
heartbeat, whilst switching off the machines is the proximate cause of
death, it cannot be an NCI breaking the chain of causation between the
Acc’s conduct and the death.
Medical intervention not unusual or abnormal nor independent of the
Acc’s conduct.

S v Ramosunya ‘00
`Acc had stabbed his mother-in-law four times in the region of her collarbone.
`The deceased who was elderly was treated in hospital for six days and then discharged.
`She died the day after returning home due to sepsis of the lungs.
`The doctor who performed the autopsy was of the opinion that the sepsis could have
been caused by a number of causes.
`The Acc argued that there was gross negligence on the part of the hospital as she was
discharged apparently in a stable condition and sent home and this constituted an NCI.

HELD:
`On appeal, whilst the court was reluctant to rule that the subsequent medical treatment
could be construed as an NCI, in this case, the State could not prove beyond a
reasonable doubt that the medical intervention did not constitute an NCI.
`There was no evidence before court on exactly how the victim was treated in hospital
and what was done.
`The only expert who testified, testified that the sepsis in the lungs could have had
numerous causes including natural causes.
`Acc could only be convicted of attempted murder.

NB: This case shows how important it is for the State to ensure adequate
evidence to prove their case beyond a reasonable doubt. The Acc only
needed to establish NCI on a balance of probability.

S v Counter ‘03
`Acc was a 31 year old male estranged from his wife.
`On the day in question, he came to her house and a fight ensued which resulted in the
Acc firing several shots at the wife.
`One of the shots struck her buttock.
`Medical intervention failed to discover that the bullet had penetrated the anal canal
until it was too late. This caused virulent septicaemia which led to pneumonia and
ultimate death.
`Acc was convicted of murder in the trial court.
`On appeal, it was argued for the Accused that the negligent medical treatment was an
NCI.

HELD:

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`Evidence of medical experts was heard and court accepted that there was no other body
of medical expertise that would have discovered the problem sooner.
`Given that no other symptoms presented and there was no necrotic tissue, the hospital
acted with reasonable skill and care.
`Also held that even if the problem was noticed sooner and treated, there was no
certainty that the victim would have survived the bacteria.
`Court found that without any symptoms, the doctor was unable to predict the presence
of infection and it was not unreasonable to choose the less invasive treatment.
`The sequence of events from the time that the Acc shot the deceased until her
death, was not interrupted by any causal factor which affected or changed the
natural order of events. Death resulted in stages predictable in accordance with
human experience. (The Acc was the adequate cause of death).
`The gunshot had left germs from the bullet all along the wound track, fragments
from anal canal had been deposited and infection set in – any complications related
thereto superimposed on the initial injury resulting in ultimate death (not
sufficiently abnormal, unusual or unforeseen and not independent of the Acc’s
conduct).

S v Tembani ‘07
`Acc had shot his girlfriend after an argument.
`One of the shots had pierced her duodenum and as a result, bile and bowel matter
spilled into her abdominal cavity creating infection and septicaemia.
`It was established through medical evidence that if unattended, the injury was fatal but
with timeous and adequate medical attention, the injury would with high probability be
rendered non-fatal.
`Also established that close observation would have been required within the first 12
hours and an exploratory procedure should have been done to trace the path of the
wound to establish treatment options.
`The exploratory procedure was not performed and the deceased had been left in a
regular ward for days only receiving basic care.
`At some point the wound to the duodenum had been repaired but it had been too late
as infection had already set in and the deceased died.
`Acc argued NCI.

HELD:
`It was common cause that the hospital staff had been negligent due to the hospital
being understaffed.
`The court rejected that the negligent medical intervention (or lack thereof) was an NCI.
`If at the time of death, the original wound was still an operating and substantial
cause of death, then the Acc was still the legal cause of death.
`Only if the medical intervention was so overwhelming as to make the original
wound merely part of the history of the chain of events leading to death, could it
be said that the death did not flow from the wound.
`Albeit negligent, the medical intervention was not sufficiently independent of the
Acc’s conduct and the resultant death not unforseeable in the ordinary course of human
experience.