Dutton - Medical Malpractice in SA

Causation 65
The court found that the defendant, a medical practitioner, had failed to diagnose
and treat the injury as a reasonably skilled and careful medical practitioner
would have done, and that but for this negligent failure the fractures would have
healed and the use of the arm regained: the defendant’s negligence had therefore
caused the loss of the use of the arm, causation was established and the
defendant was held liable. 30 The court weighed the probabilities and found that it
was more probable than not that the plaintiff suffered the injury for the medical
reasons which had been advanced in support of his case.
In the English case of Barnett v Chelsea and Kensington Hospital Management
Committee, 31 three night-watchmen presented themselves at a hospital’s casualty
department complaining that they had been vomiting for three hours after
drinking tea. The hospital staff assumed they had been drinking alcohol and
turned them away. About five hours later one of the watchmen died from poisoning
by arsenic. The court found that the staff had been negligent in not seeing
and examining the watchmen (as the reasonable medical practitioner would have
done). However, the evidence established that the watchman would have died
from the poisoning even if he had been examined and treated with reasonable
care and skill. The negligent failure by the hospital staff did not therefore in fact
cause the death of the watchman, and the claim failed.
When dealing with a failure to act (an omissio), although the conduct to be
inserted is hypothetical and there is scope for considerable speculation, knowledge
and experience play a vital role. The importance of the evidence of expert
medical opinion in this regard is demonstrated by the rather curious case of
Alston and Another v Marine and Trade Insurance Co. Ltd. 32 The plaintiffs, husband
and wife, had been involved in a motor accident and as a result the first plaintiff
suffered manic depression 33 due to an injury to the brain received in the accident.
He was treated with a drug called parstellin. After taking this drug he ate cheese
and as a result he suffered a stroke, which he attributed to the fact that he was
treated with the drug and then ate the cheese. In an action for damages against
the insurer of the vehicle involved in the accident, the Court placed reliance on
expert evidence that the consequence in question — the stroke suffered as the
result of eating cheese — was not predictable by medical science 34 and was therefore
too remote a consequence of the accident to result in liability.
5.3 Exceptions to the ‘but for’ test of factual causation
On the whole, the ‘but for’ test works well in practice. But Boberg’s ‘morass of
controversy’ at times extends to engulf its principles and, on occasion, the application
of the test becomes a source of potential injustice. Nowhere in the law is
30
Blyth v Van den Heever 1980 (1) SA 191 (A) at 207.
31
[1968] 1 All ER 1068.
32
1964 (4) SA 112 (W).
33
Now bipolar disorder.
34
See also Ocean Accident and Guarantee Corporation v Koch 1963 (4) SA 147 (A).