Dutton - Medical Malpractice in SA

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Medical Malpractice in South African Law
becoming infected, in general terms — but he could never show that in the specific
instance of his own infection those measures would probably have saved him
from TB. This is because his own infection might equally well have resulted from a
non-negligent exposure.’ 47 The minority judgment referred to the series of innovative
(if controversial) judgments by the English courts which had sought to address
the potential injustice of too rigid an application of the ‘but for’ test. 48 This raises
the question of whether policy-based considerations should be shoehorned into our
principles of factual causation and if so, on what terms, and this issue now seems
set to be ventilated in our courts in the foreseeable future.
In order to appreciate the implications of the minority judgment in Lee, the
following two English cases should be considered. 49 In McGhee v National Coal
Board, 50 James McGhee was employed to clean out brick kilns. Because there
were no shower facilities at his workplace, he would cycle home each day with
coal dust on his skin. This increased the risk that he would contract dermatitis,
47
Lee v Minister of Correctional Services 2013 (2) SA 144 (CC) at [87].
48
See esp McGhee v National Coal Board [1972] 3 All ER 1008, 1 WLR 1; Clark v MacLennan [1983]
1 All ER 416 in which it was held that, in circumstances where a precaution would have been
taken to avoid the precise injury which occurred the onus was on the defendant to establish
that his failure to take this precaution did not cause the plaintiff’s injury. This concept of
‘recognised risk avoidance’ is discussed below. In Ashcroft v Mersey Regional Health Authority
[1983] 2 All ER 245 , heard at the same time as Clark v MacLennan, dealt with facts remarkably
similar to Blyth v Van Den Heever (see the discussion at para 5.2.6 above), in that the plaintiff
had sustained severe paralysis of a facial nerve as the result of a surgeon allegedly pulling too
hard on the nerve. The issue was whether the injury was an act of negligence or excusable
medical misadventure. The court held that it was unable to shift the burden of proof and
accordingly found that, on a balance of probabilities, there was no negligence. The House of
Lords subsequently confirmed this approach in Wilsher v Essex Area Health Authority [1988]
1 All ER 871 HL, where a retrial was ordered on the basis that the coincidence of a breach of
duty and injury could not, of itself, give rise to a presumption that the injury was so caused:
‘Whether we like it or not, the law … requires proof of fault causing damage as the basis of
liability in tort’ (per Lord Bridge at 883). See, also: Chester v Afshar [2004] 3 WLR 927 dealing
with factual causation in informed consent cases; Rees v Darlington Trust [2003] All ER (D)
271; and the ‘mesothelioma cases’ of Fairchild v Glenhaven Funeral Services Limited [2002] 3 All
ER 305 and Barker v Corus UK Limited [2006] 3 All ER 785 .
49
See, also, the Australian case of March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 508, in
which Mason CJ, sitting in the High Court of Australia, did not ‘accept that the “but for” (causa
sine qua non) test ever was or now should become the exclusive test of causation in negligence
cases’ and (at p 516) he added: ‘The “but for” test gives rise to a well-known difficulty in cases
where there are two or more acts or events which would each be sufficient to bring about the
plaintiff’s injury. The application of the test “gives the result, contrary to common sense, that
neither is a cause”: Winfield and Jolowicz on Tort, 13 ed (1989), p. 134. In truth, the application of
the test proves to be either inadequate or troublesome in various situations in which there are
multiple acts or events leading to the plaintiff’s injury: see, e g, Baker v Willoughby [1970] AC 467;
McGhee v National Coal Board [1972] 3 All ER 1008 , 1 WLR 1; M’Kew (to which I shall shortly refer
in some detail). The cases demonstrate the lesson of experience, namely, that the test, applied
as an exclusive criterion of causation, yields unacceptable results and that the results which it
yields must be tempered by the making of value judgments and the infusion of policy considerations.
That in itself is something of an irony because the proponents of the “but for” test
have seen it as a criterion which would exclude the making of value judgments and evaluative
considerations from causation analysis …’
50
[1972] 3 All ER 1008, 1 WLR 1.