Causation Flashcards
What is the two stage enquiry for causation in delict?
Causation in delict involves 2 distinct enquiries:
1) whether the defendant’s wrongful act was a cause of the plaintiff’s loss [factual causation]
2) whether and to what extent the defendant should be held liable for the loss sustained by the plaintiff [legal causation]
What is the ‘but for’ test?
The court must engage in a hypothetical scenario. One must mentally eliminate the defendant’s wrongful conduct, which one suspects was the cause of the harm, and then one asks what probably (on a balance of probabilities) would have happened had the defendant acted lawfully. If the answer is that the harm would not have occurred but for the defendant’s unlawful conduct, then the wrongful conduct complained of does constitute a cause. This does not mean that it is THE cause, but it is certainly one. Where negligence is involved, the facts of the hypothetical scenario must be altered minimally so as to only remove the portion of the defendant’s conduct that was negligent.
What were the facts and issue in Minister of Police v Skosana?
The plaintiff had successfully claimed damages on behalf of herself and her minor children resulting from the death of her husband, T, who whilst heavily under the influence of intoxicating liquor, had driven his motor car off the road and landed in a ditch. T died as a result of the accident, sometime the following day - after being delayed medical treatment for quite some time.
Was T’s death factually caused by the failure of the two police constables to take reasonable steps to ensure that the detainee received expeditious medical care?
What did the court hold in Minister of Police v Skosana?
There was liability for negligence. It could be proven that had T undergone the operation 5 hours earlier, there was a greater than 50% chance that he would have survived. Hence, the deceased would have survived, but for the delayed action on the part of the police officers.
What were the facts and issue in Siman?
The Rand was devalued, and the appellant lost R90 000 because he was denied procurement of forward cover by the bank, who said that his request came at too-short-notice.
Had the request indeed come at short notice, or is the bank liable for the R90 000 lost by their client, the appellant, due to a misstatement?
What did the majority and minority in Siman hold?
[Majority] - But for the misstatement, would the appellants have been able to avoid the R90 000 loss that they incurred? It was not proven that they could have procured the forward cover from another branch. Hence, negligence could not be established.
[Minority] - The appellant’s had relied on the misstatement. Correct advise should have been given to them. Had the appellant’s received the correct advice, they would have run to the bank to procure forward cover, and their loss would have been avoided. Hence, there was a causal link between the bank’s misstatement and the appellant’s claim for damages done. An honest representation can still be unreasonable.
What were the facts and issue in Lee v Minister of Correctional Services?
The applicant sought delictual damages suffered by them as a result of contracting TB whilst in detention at Pollsmoor Prison.
Did the failure by the Correctional Services to take preventative and precautionary measures cause the applicant to be infected with TB while in detention?
What did the majority in Lee hold?
The High Court found the respondent liable, and suggested numerous ways that the prison system could improve its standard of healthcare. The SCA agreed with the recommendations, but overturned the High Court’s decision, citing that the applicant could not prove that his infection came from an inmate whose TB could have readily been detected by the reasonable prison employee. Hence, it upheld the appeal but acknowledged that all of the other elements of delictual liability had been met. This Court denied the introduction of new evidence, as well as the application for an alternate remedy based on Constitutional damages. It held that although impossible to eliminate the risk of TB in prisons, such a risk ought to be reduced. If the SCA approach was followed, no inmate ever would be able to prove causation, leaving no remedy available to prejudiced prisoners. Hence, because the respondent is delictually liable, the appeal was upheld.
What did the minority in Lee hold?
It is not ‘but for’ the negligence of the respondent that Mr Lee contracted TB. Rather, their negligence merely increased the overall risk that he would contract TB. Hence, the law should be developed to compensate a claimant negligently exposed to risk of harm, who suffers harm. The prison only had to take reasonable measures to prevent the transmission of TB. It could not be proved that their negligence caused his harm, as there is no evidence as to how, from whom, or by way of negligence on the part of a 3rd party, Mr Lee contracted TB. Rather, Mr Lee would have to prove that a reasonable system would result in a hypothetical total elimination of risk. Because this is near impossible in cases of TB transmission, prisoners would be without a remedy. However, it is not for this Court to decide the possible developments. Such must be argued before a court of first instance.
What are some of the problematic cases for the ‘but for’ test?
1) lost chance cases
2) duplicative causation
3) pre-emptive causation
4) evidential gaps
5) systemic negligent omissions
What are 1) lost chance cases?
Where the defendants conduct resulted in a lost chance at avoiding the harm e.g. a doctor who performs negligently and thus fails to ameliorate the risk that his patient might become paralysed [Hotson].
What is 2) duplicative causation?
Where the conduct of two or more persons simultaneously results in the same harm, so that it is impossible to determine who ought to be held liable for the harm suffered e.g. X and Y simultaneously, but independently, fire shots at Z. X’s bullet destroys Z’s brain; Y’s bullet destroys Z’s heart; Z dies. On the ‘but for’ test, neither could be held liable, because but for their conduct, the harm would still have been suffered.
What is 3) pre-emptive causation?
Where the conduct of two or more persons will eventually result in the same harm, so that it is impossible to determine who ought to be held liable for the harm suffered e.g. X poisons Z’s tea; after Z drank the poisoned tea but before the poison had been absorbed into Z’s bloodstream, Y decapitates Z; Z dies. Neither can be held liable, because even without their own conduct, the harm still would have been suffered.
Where might there be an 4) evidential gap?
Where the evidence fails to pinpoint who exactly is liable for the harm suffered, neither person can be held liable e.g. if two hunters shoot at you, but only one bullet harms you, yet it is impossible to determine which hunter fired the harmful shot [Cook v Lewis]; if you take cancerous medicaiton, but you cannot determine which company manufactured the exact pill that caused the cancer [Sindell]; you fall ill from asbestos ingestion, but you cannot pinpoint when exactly you inhaled the harmful substance and for whom you were working for [Fairchild].
Where might there be 5) systemic negligent omissions?
Where there has been a failure to mitigate the risk of harm, but you cannot prove that the harm suffered was as a result of that failure [Lee v Minister].
