Dutton - Medical Malpractice in SA

Causation 75
was subsequently confirmed in a number of private law decisions. 71 The facts of
Mokgethi were that the deceased was a bank teller. He was shot during a robbery,
but only died some six months later. As a result of being shot, the deceased had
become a paraplegic. His condition initially improved until he resumed work
at the bank. He was later readmitted to hospital suffering from septicaemia. He
eventually died from the septicaemia, which had been contracted as a result of
serious pressure ulcers because he had failed to sufficiently shift his position in
a wheelchair as he had been instructed to do by his medical practitioners. The
Court accepted that there had been factual causation. The case therefore turned
on the question of legal causation. The court held that none of the suggested tests
of legal causation would be satisfactory in all cases. The court quoted from Blaikie
and Others v The British Transport Commission: 72
‘The law has always had to come to some kind of compromise with the doctrine of
causation. The problem is a practical rather than an intellectual one. It is easy and
usual to bedevil it with subtleties, but the attitude of the law is that expediency and
good sense dictate that for practical purposes a line has to be drawn somewhere, and
that, in drawing it, the court is to be guided by the practical experience of the reasonable
man, rather than by the theoretical speculations of the philosopher’.
Van Heerden JA referred to the various criteria stated in judicial decisions and legal
literature for the determination of legal causation, such as the absence of a novus
actus interveniens, proximate cause, direct cause, foreseeability and sufficient causation
(‘adekwate veroorsaking’). The Court held that a ‘flexible approach’ should be
adopted. It stated that there are a wide variety of circumstances in which a victim
may neglect to obtain medical assistance and so aggravate his or her condition, and
possibly lead to such person’s death. The ultimate question, however, is whether
there is a sufficiently close connection between the wrongdoer’s conduct and the
consequences. This is an elastic measure and is essentially a question of fact. 73
Mukheiber v Raath and Another 74 is a further example of a case which turned on
the issue of legal causation. The facts of the case were that the plaintiffs, a husband
and wife, had relied on a misrepresentation by the defendant, a gynaecologist, that
he had sterilised the wife. The plaintiffs had therefore desisted from contraception,
as a result of which a child was conceived and born. The plaintiffs claimed compensation
from the defendant under two heads of pure economic loss: the costs of
71
Including the medical cases of Clarke v Hurst NO 1992 (4) SA 630 (D); Clinton-Parker v
Administrator, Transvaal; Dawkins v Administrator, Transvaal 1996 (2) SA 37 (W); Gibson v
Berkowitz 1996 (4) SA 1029 (W) and Mukheiber v Raath and Another 1999 (3) SA 1065 (SCA),
which all dealt with medical malpractice issues and are discussed below.
72
1961 SC 44 at 49.
73
The court then set out the following criteria in criminal actions which may be of assistance in
delictual actions: the causal connection will be broken where (1) the neglect of the victim to
obtain medical assistance or the like was the immediate cause of the death, (2) the wounding
was not in itself life-threatening, or it was no longer life-threatening and (3) the neglect to
obtain medical assistance was relatively unreasonable, taking into account the characteristics,
convictions and the like of the victim (S v Mokgethi 1990 (1) SA 32 (A) at 46–47).
74
1999 (3) SA 1065 (SCA).