2019 June/Nov causation and remoteness Flashcards
In the situation described below, the doctor’s negligent conduct was NOT the cause of the patient’s death:
A doctor administers 80 ml of a drug to a patient in order to combat a life threatening condition. The patient dies from the condition. It was negligent for the doctor to have administered less than 100 ml of the drug. The doctor would have acted without negligence if he had administered 100-150 ml of the drug. Had the doctor administered 140-150 ml of the drug she would still have been alive as her condition would have been successfully managed. However had the doctor administered 100-110 ml she would still have died in any event.
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In Siman , the majority and dissenting judgments came to different conclusions because they differed over the test for causation. According to Corbett JA, writing the dissent , the test to be applied is the standard but/for test. According to Trollip AJA, writing for the majority , causation was to be determined by asking whether the defendant’s negligent conduct had made a ‘material contribution” to the plaintiff’s loss.
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Application of the but-for test to the example below – the well-known ‘two hunters problem’ – yields the problematic result that both hunter A’s and hunter B’s negligent conduct were causes of C’s harm:
Hunter A, while attempting to shoot an elephant, negligently shoots C. So, at exactly the same moment, does hunter B. Hunter A’s bullet destroys C’s brain. Hunter B’s bullet destroys C’s heart. C dies.
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Because of the difficulties that duplicative and pre-emptive causation cases present for the but-for test, some delict scholars now favour an alternative test, the best-known version of which is called the ‘NESS test’, according to which X was a cause of Y if and only if X and Y were both Natural Events in a Single System.
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The requirement that, in a dispute about Aquilian liability, the onus is on the plaintiff to prove on a balance of probabilities that but for the culpable conduct in question the harm in question would not have occurred yields the outcome in the example below that neither A, nor B, nor C can be held liable:
Factories A, B, and C successively employ worker D. Each factory negligently exposes D to the risk of contracting some disease, by having him work in an area in which he inhales air containing fibres of a particular kind of substance, any one of which fibres is capable of triggering the disease. The duration of D’s employment and his work conditions are identical in each case. So, therefore, is the degree of risk to which he is exposed by each of A, B and C. Some time after his retirement, D does contract the disease in question. It is certain that it was triggered by one, but only one, of the many fibres to which D was exposed during his employment by A, B and C. But it is impossible to determine, in any way, whether it was a fibre which he inhaled while working at factory A, or factory B, or factory C. In respect of each of A, B and C, the probability therefore is only 33% that, but for its negligence, the harm to D would not have occurred.
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In Minister of Correctional Services v Lee the Constitutional Court found that, contrary to what had been decided in the Supreme Court of Appeal, the but-for test could be ignored if social policy required it and, on the ground that a finding for the plaintiff would have astronomical cost implications, rejected his appeal
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If a court were to approach the situation described below in the way that liability was determined in cases like Alston v Marine & Trade Insurance Co, Van den Bergh v Parity Insurance Co, Mafesa v Parity Versekeringsmaatskappy, Groenewald v Groenewald, and Road Accident Fund v Russell, it would determine Allie’s liability for Bongani’s bodily injuries by asking, not whether Allie had been negligent in respect of them, but rather whether they (or the loss resulting from them) was too remote:
While in an animated conversation with her babysitter, Allie smashes her VW Polo into Bongani’s Vespa, which is parked around the corner from the restaurant where Allie just had dinner and Bongani is working as a part-time waiter. Allie is an honest person. But she is also in a hurry. So she leaves a note on the Vespa’s windscreen, acknowledging her culpability and giving all her contact details. When Bongani arrives at his Vespa a little after midnight, he discovers that its front wheel is so badly buckled that he cannot possibly ride it. He phones his digs mate to come and pick him up. But, while waiting disconsolately for his lift, Bongani is attacked by a six-foot mugger called Charlize who, after stabbing him four times, makes off with his wallet and iPhone. In the subsequent case arising from these facts, the court finds that Allie’s driving had been negligent and wrongful, because it had foreseeably caused the damage to Bongani’s Vespa. It also finds that a reasonable person in Allie’s position would have realised that, by damaging Bongani’s Vespa, she rendered him vulnerable to the kind of attack which he suffered at the hands of Charlize. However, according to the court, the probability of such attack was so low that a reasonable person in Allie’s position would not, for that reason, have taken more care than she in fact did in driving her VW Polo. In particular, a reasonable person in Allie’s position would not, for that reason, have refrained from talking on her cell phone while driving.
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Several judgments of the Appellate Division and Supreme Court of Appeal have established that, for the purpose of the direct consequences test, not only human conduct, but also a natural event like a falling tree or a lightning strike (or a flood, an earthquake, an avalanche, a mudslide, a tornado, a tsunami, or a volcanic eruption) could constitute a new intervening event (or novus actus interveniens).
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In his book, The Law of Delict Volume 1 Aquilian Liability, P Q R Boberg assumed that the liability outcomes that would be produced by the combination of an abstract approach to negligence and the foreseeability test for remoteness were identical to the liability outcomes that would be produced if the law were to adopt a relative approach to negligence (and not bother about remoteness).
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In International Shipping Co v Bentley Corbett CJ rejected the idea, previously accepted by Van Heerden JA in the criminal case of S v Mokgethi, that remoteness was to be determined by application of a ‘flexible test’ in which considerations of policy may play a part.
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In International Shipping Co v Bentley Corbett CJ rejected the idea, previously accepted by Van Heerden JA in the criminal case of S v Mokgethi, that remoteness was to be determined by application of a ‘flexible test’ in which considerations of policy may play a part.
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