Saul Smith

Student No: 4239-362-0

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Causation.

In all delictual remedies against a defendant, the conduct of the defendant must have caused the loss or
damage concerned. This is called causation. Causation refers to the link between an act and a
subsequent result, and is often called a causal nexus. There are 2 types of causation utilised in law, the
first being factual causation and the second being legal causation.

Factual causation is concerned with the question of whether or not the defendant’s act or omission
caused or contributed to the harm suffered by the plaintiff. It is a question of fact since there can be no
liability for damages that have not been caused by the defendant.

A test for factual causation is the conditio sine qua non theory which is also known as the “but for” test.
Basically the test is whether an act can be thought away without the consequences being eliminated as
a result. In other words, but for the action of the defendant, would the damage still have occurred.

The conditio sine qua non theory is still used in our courts for determining factual causation but has
been widely criticised in legal texts. The obvious criticism is that it can be extrapolated backwards ad
infinitum to nonsensical results where grandparents of or the doctor that birthed a defendant could be
the factual cause of damages. It is also said to be a clumsy indirect process of thought that could result
in circular logic and the judge is left considering whether anything else could have caused the result.

The main criticism of the conditio sine qua non test is that it is not a test of causation at all but rather an
“after the fact” way of expressing a predetermined causal nexus. It can only be employed after the cause
of the result has already been determined and it offers no solution when the cause is unknown.

To solve this, the court applied the “direct common sense approach of the man in the street” as
described by the judge ion Portwood V Swamvur.

In determining the factual cause, one must first define the concept and it can be defined as the link
existing when one fact arises out of another. Due to the complex nature of some situations there can be
no standardised test for factual causation and the existence of a causal chain must be demonstrated in
view of proven facts. Factual causation is a question of fact and there are no legal norms or rules can
Saul Smith
Student No: 4239-362-0
Law of delict
PVL3703
Assignment 1

alter the facts, it either exists or does not. Knowledge, experience, and reliable evidence are required to
prove a causal link. The knowledge that certain actions may cause certain results is required and is
generally acquired by human experience.

It is usually sufficient if a defendant’s conduct has in any way contribute to the damages concerned and
need not be the sole cause or even a direct cause. This is the reason that our law has the further
requirement of legal causation and does not merely accept liability based on factual causation.

Determining legal causation is a question of which harmful consequences that have actually been
caused by the wrongful, culpable (or negligent) act should the actor be held liable for. Generally the
harm which is too remote from the conduct cannot be imputed to the actor. Causation is only
problematic where there is a chain of consequences between the wrongful conduct and the resultant
damage and when it is argued that the defendant cannot be liable for all the consequences.

There are various theories for determining legal causation including; the flexible approach, based on
policy considerations, reasonableness, fairness and justice; the theory of adequate causation; the direct
consequences criterion; the theory of fault; and the reasonable foreseeability criterion. The reasonable
foreseeability approach was favoured by our courts until 1990, where the Appeal court in S V Mokgethi
expressed an inclination towards the flexible approach.

Briefly, S v Mokgethi was about a man who had been shot in a robbery and had died 3 months later from
pressure sores and septicaemia. The court found that the shooting of the deceased was too far removed
to be regarded as the legal cause of the deceased’s death. The court held that there is no single criterion
for legal causation and a flexible approach is recommended. The basic criteria being whether there
existed a close enough relationship between the conduct and the consequence to impute the resultant
consequence to the actor. This approach relegates the other tests or factors to function merely as aides
to determining the imputability of harm.

This case provides authority for the relegation of the conditio sine qua non approach for determining
factual causation to signifying an already existing causal connection. The analysis of available evidence
of how one fact follows from another is the preferred method.

It was also authority for the idea that wrongfulness and fault cannot function as criteria for legal
causation and that not one single approach is satisfactory for all cases. A flexible approach must be
adopted. According to this approach damage is imputable when it is a direct consequence of the
conduct, or it is reasonably foreseeable, or if it is in an adequate relationship to the conduct, or for
reasons of legal policy, or a combination of these reasons.

This approach was confirmed by the court in International shipping CO (Pty) Ltd v Bentley where a
flexible approach to legal causation was desirable, however the court in this case accepted the conditio
sine qua non test despite criticism of this approach for determining factual causation.
Saul Smith
Student No: 4239-362-0
Law of delict
PVL3703
Assignment 1