Dutton - Medical Malpractice in SA

5
Causation
‘In the morass of controversy that surrounds this element of liability …’ 1
5.1 Introduction: the concept of causation 2
No area of the law appears more straightforward or benign, but is in reality potentially
more perilous, than the question of causation in medical law cases.
The basic principle can be simply stated: only causal conduct can give rise to
legal liability. 3 In other words, the wrongdoer can only be delictually liable if
his or her conduct 4 caused the harm in question. 5 This seems clear enough.
But challenges soon arise — some theoretical; others practical — and can easily be
underestimated. On a theoretical level, one commentator was moved to describe
the issue of causation as surrounded by a ‘morass of controversy.’ 6 On a practical
level, the inherent complexity of the human body and its treatment can give rise
to numerous pitfalls for the unwary. These issues have posed profound challenges
to legal systems around the world.
To begin at the beginning: causation in the law of delict gives rise to two
rather distinct problems — the first relates to whether the conduct in question
caused or materially contributed to the harm. If the Court is satisfied that the
1
P Q R Boberg The Law of Delict vol 1 Aquilian Liability 2 imp (Juta 1984) at 380.
2
See, generally: Minister of Police v Skosana 1977 (1) SA 31 (A); Mafesa v Parity Versekeringsmaatskappy
Bpk 1968 (2) SA 603 (O); Minister of Finance v Gore 2007 (1) SA 111 (SCA); Blyth v van den
Heever 1980 (1) SA 191 (A); International Shipping Company (Pty) Ltd v Bentley 1990 (1) SA 680
(A); Chester v Afshar [2004] 3 WLR 927; Barnett v Chelsea and Kensington Hospital Management
Committee [1968] 1 All ER 1068; Coppen v Impey 1916 CPD 309; Michael v Linksfield Park Clinic
2001 (3) SA 1188 (SCA); Stewart and Another v Botha and Another 2007 (6) SA 247 (C); Fairchild
v Glenhaven Funeral Services Ltd [2002] 3 All ER 305; McGhee v National Coal Board [1972] 3 All
ER 1008; Lee v Minister for Correctional Services 2013 (2) SA 144 (CC); S v Mokgethi 1990 (1) SA 32
(A); Wilsher v Essex Area Health Authority [1988] 1 All ER 871 HL; Clinton-Parker v Administrator,
Transvaal; Dawkins v Administrator Transvaal 1996 (2) SA 37 (W); Mukheiber v Raath 1999 (3)
SA 1065 (SCA); Clarke v Hurst NO 1992 (4) SA 630 (D) Gibson v Berkowitz 1996 (4) SA 1029 (W);
McDonald v Wroe [2006] 3 All SA 565 (C); Silver v Premier Gauteng Provincial Government 1998
(4) SA 569 (W).
3
International Shipping Company (Pty) Ltd v Bentley 1990 (1) SA 680 (A) at 700; Minister of Police
v Skosana 1977 (1) SA 31 (A) at 34.
4
It is not strictly accurate to say that the wrongdoer’s negligence caused the harm; negligence
is a conclusion of law which the courts draw from the established facts. The enquiry into
causation is one into an assessment of fact from which the legal conclusions of negligence
and unlawful must be drawn.
5
Of course, the other elements of the claim would have to be present (see ch 3 above).
6
Boberg The Law of Delict vol 1 Aquilian Liability 2 imp (Juta 1984) at 380.
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