Dutton - Medical Malpractice in SA

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Medical Malpractice in South African Law
defendant was the factual cause of the harm, then it proceeds to the inquiry into
the second problem: whether the conduct is sufficiently closely linked to the
harm for legal liability to arise. This is assessed by means of the enquiry into legal
causation. 7 These two enquiries will be examined in turn.
5.2 Factual causation
Put bluntly, the conduct in question either caused the harmful result, or it did
not. This is a factual inquiry, and in many cases, it is obvious in practice whether
or not this has happened. In Minister of Police v Skosana 8 Corbett JA referred to
the following passage from Fleming, The Law of Torts, with approval: ‘The first
[enquiry] involves what may broadly be called the “factual” question whether the
relation between the defendant’s breach of duty and the plaintiff’s injury is one
of cause and effect …’
5.2.1 The ‘but for’ or ‘sine qua non’ test
It has now been authoritatively accepted that factual causation is determined
by the ‘but for’ test 9 as to whether the conduct caused the harm. In applying
this test, the court looks at the facts and asks whether the harm would have
occurred but for 10 the defendant’s conduct (whether by act or omission). 11 If the
harm would not have occurred, then the conduct in question is a factual cause
of the harm. If the harm would in any event have occurred, then the defendant’s
7
On the two legs of the enquiry, see esp Minister of Police v Skosana 1977 (1) SA 31 (A);
International Shipping Company (Pty) Ltd v Bentley 1990 (1) SA 680 (A) at 700; Mukheiber v Raath
and Another 1999 (3) SA 1065 (SCA).
8
1977 (1) SA 31 (A) at 34.
9
Not without consternation in some quarters; a number of commentators have pointed out
the illogical nature of the test, and regard it as a being merely a justification of an a priori
conclusion gained from knowledge and experience (Van Rensburg 1977 TSAR 101; and see
Boberg The Law of Delict vol 1 Aquilian Liability 2 imp (Juta 1984) at 380; Neethling et al Law
of Delict 6 ed (LexisNexis 2010) at 180 ff, esp the commentators referred to at fn 29.) It may
have been tempting to adopt a cheerfully sanguine attitude to the issue, and dismiss it as
mere inconsequential theorising, if it weren’t for the unsettled nature of the law regarding
factual causation in the United Kingdom, and the recent stirrings in our law in Lee v Minister
for Correctional Services 2013 (2) SA 144 (CC), which may well be a harbinger of future travails.
More importantly, it must in fairness at least be conceded that these misgivings may point to
deeper theoretical shortcomings in our principles governing factual causation.
10
Also stated as whether the conduct was a sine qua non of the harm. Minister of Police v Skosana
1977 (1) SA 31 (A); International Shipping Company (Pty) Ltd v Bentley 1990 (1) SA 680 (A); Lee v
Minister of Correctional services 2013 (2) SA 144 (CC).
11
But see the remark by TJ Scott (1977) 10 De Jure 186 at 190 expressing regret that the Appellate
Division did not take cognisance of Van Rensburg’s important work on the subject of causation
(an attitude shared by Boberg The Law of Delict vol 1 Aquilian Liability 2 imp (Juta 1984) at 385:
‘Certainly [Van Rensburg’s] work represents a thoughtful and thought-provoking contribution,
and Van Rensburg’s arguments have a cogency that makes them difficult to resist’). There has
however been recognition of exceptions to the principle — albeit very limited (see para 5.3
below). Portwood v Svamvur 1970 (4) SA 8 (RA) is an example of an exception to the ‘but for test’,
where reference was made to ‘commonsense standards’ (at 15 E). Where there were two concurrent
causes — one an unlawful act and one lawful act — the person responsible for the unlawful
act is just as liable as each of two concurrent joint wrongdoers would be.