Dutton - Medical Malpractice in SA

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Medical Malpractice in South African Law
main approaches to limiting a defendant’s liability for the factual consequences
of his or her conduct have been advocated: the ‘relative approach’, in terms of
which wrongfulness was determined by applying the criterion of objective reasonableness
ex post facto to the actual harm — the manner of its causation and culpability
was satisfied only where the defendant in the particular circumstances
intended or reasonably ought to have foreseen and guarded against harm of the
kind that actually occurred (thereby according the requirements of wrongfulness
and fault an active role in the limitation of liability); and the ‘legal causation’ test,
in terms of which limitation is achieved by postulating a further requirement for
liability, namely that the plaintiff’s damage should not have been ‘too remote’. 69
The Appellate Division has now approved a composite test, which enables
a court to weigh numerous factors — including the traditional ‘tests’ — in the
balance, in order to determine whether there was a sufficiently close connection
between the defendant’s conduct and the unlawful consequence. In S v Mokgethi, 70
the approach by the courts to legal causation was set out in some detail, which
defendant acted wrongfully and culpably in causing the harm actually complained of inherently
also confines his liability within acceptable limits. And the policy considerations that
must ultimately determine what limits of liability are acceptable receive due judicial recognition
when the discretionary ‘objective reasonableness’ test of wrongfulness and the flexible
‘foreseeable kind of harm’ test of negligence are applied.’ The other view ‘… is that limitation
is best achieved by postulating a further requirement for liability, namely that the
plaintiff’s damage must not be ‘too remote’.’ Also called ‘legal causation’, remoteness may
be determined in various ways. Some favour the ‘direct consequences’ test, some the ‘foreseeability’
test, some the ‘adequate cause’ test and some a composite solution. Common to
all, however, is the premise that culpability is an ‘abstract’ attribute of conduct unrelated to
its actual consequences, and so has no function in limiting liability for those consequences,
which is the province of ‘legal causation’. The traditionalists therefore approach the issue of
remoteness already armed with a wrongful and negligent act that has in fact caused harm,
and proceed to enquire whether the causal connection is sufficient — according to the test
that each favours — to found legal liability.’ Boberg loc cit at 381. The ‘direct consequences’
test provides that the defendant is liable for all consequences which flow directly from the
conduct in question. A consequence flows directly from conduct where there is no new cause
(novus actus interveniens) between the conduct and the harm. An important factor in assessing
whether a new cause has occurred is whether the intervening conduct or event is considered
abnormal in the light of human experience. The adequate cause test is very similar to the
direct consequences test. ‘ (Neethling et al Law of Delict 6 ed (LexisNexis 2010) at 195–196)…
A consequence which has in fact been caused by the wrongdoer, is imputed to him if the consequence
is ‘adequately’ connected to the conduct. The connection is termed ‘adequate’ if,
according to human experience, in the normal course of events, the act has the tendency to
bring about that type of consequence (Neethling et al at 193–194); Standard Chartered Bank of
Canada v Nedperm Bank Limited 1994 (4) SA 747 (A) at 765A: In applying the flexible approach
to legal causation, an important factor is the reasonable foreseeability of the damage which
results. It is sufficient if the general nature of the harm suffered or the general manner of
the harm occurring, was reasonably foreseeable. Mafesa v Parity Versekeringsmaatskappy Bpk
(In likwidasie) 1968 (2) SA 603 (O): The court based its decision on the fact that the plaintiff’s
negligence was not reasonably foreseeable.
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See also Mukheiber v Raath 1999 (3) SA 1065 (SCA) at 1078A–H.
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1990 (1) SA 32 (A). In International Shipping Company (Pty) Ltd v Bentley 1990 (1) SA 680 (A), the
Court confirmed the flexible approach to legal causation set out in S v Mokgethi 1990 (1) SA 32
(A), based on policy considerations such as fairness and justice in order to determine whether
a remote consequence should be attributed to the wrongdoer.