Dutton - Medical Malpractice in SA

Causation 71
Authority. 56 In that case the defendant hospital, initially acting through an inexperienced
junior doctor, negligently administered excessive oxygen during the
post-natal care of a premature child who subsequently became blind. Excessive
oxygen was, according to the medical evidence, one of five possible factors that
could have led to blindness. On the ‘balance of probabilities’ test, the hospital
would not be liable, since it was more likely that one of the alternate risks had
caused the injury. The Court of Appeal applied the ‘material increase of risk’
test, first espoused in McGhee v National Coal Board. 57 The Court found that since
the hospital breached its duty and thus increased the risk of harm, and that the
plaintiff’s injury fell within the ambit of that risk, the hospital was liable, despite
the fact that the plaintiff had not proved the hospital’s negligence had caused his
injury. The House of Lords however found, applying a principled approach, that
it was impossible to say that the defendant’s negligence had caused, or materially
contributed, to the injury and the claim was dismissed.
And finally, in Snell v Farrell, 58 Sopinka J, delivering the judgment of the
Supreme Court of Canada, said:
‘The traditional approach to causation has come under attack in a number of cases in
which there is concern that due to the complexities of proof, the probable victim of
tortious conduct will be deprived of relief. This concern is strongest in circumstances
in which, on the basis of some percentage of statistical probability, the plaintiff is the
likely victim of the combined tortious conduct of a number of defendants, but cannot
prove causation against a specific defendant or defendants on the basis of particularised
evidence in accordance with traditional principles.’
The Court dealt with the issue by upholding the ‘traditional approach’ to factual
causation, but regarded the problem as lying in its application:
‘I am of the opinion that the dissatisfaction with the traditional approach to causation
stems to a large extent from its too rigid application by the courts in many cases.
Causation need not be determined by scientific precision. It is, as stated by Lord Salmon
in Alphacell Ltd. v. Woodward, [1972] 2 All E.R. 475, at p. 490: “… essentially a practical
question of fact which can best be answered by ordinary common sense rather than by
abstract metaphysical theory”.’
5.3.2 The ‘loss of a chance’ rule
The reference to Gregg v Scott 59 by the Constitutional Court 60 is of interest, as it
refers to a controversial medical malpractice decision of the House of Lords. The
case dealt with the challenging doctrine of so-called ‘loss of a chance’. The facts
of Gregg’s case are regrettably not an uncommon type of occurrence. A patient
56
[1988] 1 All ER 871 HL. It is apparent from the cases in the United Kingdom and Australia
that the question of causation, even on the level of factual causation, at times does involve
questions of legal policy and justice.
57
[1972] 3 All ER 1008, 1 WLR. 1.
58
[1990] 2 SCR 311 at 320; see also Athey v Leonati [1996] 3 SCR 458 ; ResurfIce Corp. v Hanke
2007 SCC 7.
59
[2005] 4 All ER 812 HL.
60
In the minority judgment in Lee v Minister of Correctional Services 2013 (2) SA 144 (CC) at [47].