Dutton - Medical Malpractice in SA

Causation 77
In Clarke v Hurst NO 82 the applicant’s husband (‘the patient’) had suffered a
cardiac arrest in 1988 and had since then been in a persistent and irreversible
vegetative state and was fed artificially by means of a naso-gastric tube. The
applicant applied to be appointed as curatrix personae in respect of the patient,
with powers in that capacity to authorise the discontinuance of any treatment to
which the patient was subjected, specifically the discontinuance of any naso-gastric
or other non-natural feeding regime, and to act in this manner notwithstanding
that the implementation of such decision might hasten the patient’s
death. The Court applied S v Mokgethi en Andere 83 and held that, even assuming
that uncoupling the ventilator would accelerate the moment of death and therefore
in a sense cause it, it was however clear that a factual causal connection was
not enough to entail legal liability. The Court held that matters of policy are relevant
to the enquiry and that the Court should guard against allowing liability to
exceed the bounds of reasonableness, fairness and justice. So viewed, it appeared
to the Court that the steps envisaged in removing the ventilator would not in law
be the cause of the patient’s death.
5.5 Thin skull cases
Thin skull cases arise where the plaintiff, because of one or other physical, psychological,
or financial weakness, suffers more serious injury or loss as a result of
the wrongdoer’s conduct, than would have been the case had the plaintiff not
suffered from such weakness. This is expressed as ‘the wrongdoer must take the
victim as he finds him.’ 84 Most jurists agree that the wrongdoer should be liable
for the harm which may be ascribed to the existence of the weakness concerned.
The flexible approach to legal causation applies to thin skull cases. 85 The basic
chances of consequences materialising are negligible or remote the reasonable man would
not be expected to foresee them. However, on the facts, the court found that the number
of single young mothers in which a psychiatric illness could be expected is not negligible (a
20–30% likelihood was established). In these circumstances the court held that it could not
be said that it was not reasonably foreseeable that the harm suffered would ensue. Defendant’s
counsel contended that the decision to retain the children can properly be described as an
actus novus interveniens. However, the dilemma the plaintiffs found themselves in was not of
their own doing. It therefore flowed from the negligence of the defendant’s servants, and the
court held that the defendant was not entitled to rely on the decision to retain the children
as an actus novus interveniens. The court also found that it was highly unlikely that a decision
in favour of the plaintiffs would cause a flood of litigation.
82
1992 (4) SA 630 (D).
83
1990 (1) SA 32 (A).
84
Hay v Bourhill and Young 1943 AC 92 109–110.
85
This is illustrated by the judgment of Botha AJ in Smit v Abrahams 1994 (4) SA 1 (A). This was
a ‘financial thin skull’ case. In Smit v Abrahams, the vehicle used by the plaintiff in his hawker’s
business was irreparably damaged. The plaintiff could not afford to repair the vehicle.
He therefore claimed compensation for the rental of a replacement vehicle. The defendant
contended that this claim was not recoverable because the damage was caused by the plaintiff’s
own financially straitened circumstances. The flexible approach was applied, with the
court finding that, although reasonable foreseeability can be used as a subsidiary testing
the application of the flexible approach, it can never serve as the decisive test and thereby
override the flexible approach and allowed the claim. The learned judge held that thin skull