Dutton - Medical Malpractice in SA

Causation 73
it may well be that the somewhat radical departure from the clearly established
common law principles which the English courts were, on occasion, prepared to
take in relation to factual causation should be left for legislative consideration.
5.4 Legal causation (remoteness of damage)
There is no serious dispute as to the need for a limitation of liability where factual
causation is established. Fleming, The Law of Torts, 66 sums up this second causal
enquiry as follows: 67
‘The second problem involves the question whether, or to what extent, the defendant
should have to answer for the consequences which his conduct has actually helped to
produce. As a matter of practical politics, some limitation must be placed upon legal
responsibility, because the consequences of an act theoretically stretch into infinity.
There must be a reasonable connection between the harm threatened and the harm
done. This inquiry, unlike the first [into factual causation], presents a much larger area
of choice in which legal policy and accepted value judgments must be the final arbiter
of what balance to strike between the claim to full reparation for the loss suffered by
an innocent victim of another’s culpable conduct and the excessive burden that would
be imposed on human activity if a wrongdoer were held to answer for all the consequences
of his default.
To understand its practical implementation by the courts, it is helpful to accept that
the ‘test of legal causation’ is, in a sense, not a test of causation at all. It is in reality
a decision about the limitation of liability. It is “a policy-based mechanism for eliminating
from the causal net those factual consequences for which it would be unreasonable
or undesirable to impose liability”.’
The implementation of this test is frequently of decisive importance in medical
cases. By virtue of the nature of the ethical issues often raised in this area of
the law, which arise out of the combination of rapid scientific and technological
advances, the intricacies of the human body and the inherently personal nature
of the subject matter, medical cases regularly raise new questions of policy to be
dealt with by the courts.
Radically differing views, however, exist as to the manner of limiting the
defendant’s liability for the factual consequences of his or her conduct. 68 Two
66
7 ed at 173.
67
Quoted with approval in S v Mokgethi 1990 (1) SA 32 (A).
68
In respect of limiting the defendant’s liability once factual causation is established, there are
two main schools of thought amongst academic writers and in the case law. One school, the
‘relative view’ (as expounded by Boberg The Law of Delict vol 1 Aquilian Liability 2 imp (Juta
1984) at 381–382 proposes that one should ‘… see both wrongfulness and culpability, not
in abstracto, but as relative to the actual consequences in issue. The question is not whether
the defendant’s conduct was wrongful and culpable, but whether the harm for which the
plaintiff sues was caused wrongfully and culpably by the defendant. Wrongfulness is determined
by applying the criterion of objective reasonableness ex post facto to the actual harm
and the manner of its occurrence; culpability is satisfied only where the defendant intended
or ought reasonably to have foreseen and guarded against harm of the kind that actually
occurred. Having thus accorded the requirements of wrongfulness and fault an active role
in the limitation of liability, those who adopt this approach have no need to postulate a
further requirement that the plaintiff’s damage be not ‘too remote’. Their finding that the