Week 5

Causation -Factual causation & Legal causation

ACT WRONGFULNESS FAULT CAUSATION

Prescribed Resources

Learning outcome 15:

Explain the element of causation and distinguish between factual and legal causation.

Assessment criteria:
15.1 Define causation.
15.2 Distinguish between factual and legal causation.
Unit 15 LO 15 @ a glance 1
15.3 Explain the operation of the condictio sine qua non doctrine to determine factual causation.
15.4 With reference to case law, describe the process through which factual causation is determined in the case of an omission.
15.5 Apply the principles of factual causation to a set of facts.
15.6 Discuss the meaning, operation and function of legal causation.
15.7 List the different approaches to legal causation.
15.8 Critically discuss the flexible approach to legal causation.
15.9 Critically discuss adequate causation as a method to determine legal causation.
15.10 Critically discuss the direct consequences theory as a method to determine legal causation.
15.11 Critically discuss fault as an approach to determine legal causation.
15.12 Critically evaluate intent and negligence as criteria for legal causation.
15.13 Critically evaluate reasonable foreseeability as a criterion for legal causation.
15.14 Explain the impact of a novus actus interveniens on causation.
15.15 Discuss the impact of physical, psychological or financial weakness on causation, where a plaintiff suffers even more serious injury, due to the
weakness, the so-called egg-skull cases.
15.16 Advise which of the above criteria the courts prefer when assessing causation.
15.17 Distinguish between the different criteria set out above and apply the criteria to a set of facts.

INTRODUCTION TO CAUSATION

• In Delict there must be damage caused and a causal link between the conduct and the damage is required.

• Causation is a question of fact proved by evidence e.g. medical evidence produced to show that an accident wasn’t the
cause of thrombosis.

2
Page
Unit 15 LO 15 @ a glance 2
• Distinguish between factual & legal causation:

Factual causation: Legal causation:

A factual causal nexus exists between the act and the Which of the harmful events flowing from this conduct
harmful consequence which can extend ad infinitum. should a defendant be held liable for in order to limit
liability.

FACTUAL CAUSATION

• In most cases not a problem to determine whether the conduct of the defendant caused the harm suffered by plaintiff.

• Conditio sine qua non test / But for: Study in detail!

• Court asks: But for X’s conduct, would the harm / damage suffered have occurred when it did?

If yes, no factual causation.

If no, factual causation.

• Define:
Van der Merwe & Olivier: An act is the cause of a result if the act cannot be thought away without the result
disappearing simultaneously. The act must be conditio sine quo non.

3
• Example: S v Daniels

Page
Unit 15 LO 15 @ a glance 3
 • How to apply test?

• Criticism? 4 Factors (Read only!)

• Example: Minister of Police v Skosana 1979

• Conditio sine quo non v causation by omission:

1) General view: Test may be applied where it must be determined whether an omission caused a certain consequence.
Positive conduct is inserted in the place of the omission.

2) S v Van As:
Children fled into the night, police failed to search for them. They died of exposure.
Question – whether children’s death was caused by the omission of Police to search for them.
Court applied the condition sine quo non and asked whether a reasonable search would have prevented their deaths.

3) Criticism: Van Rensburg -

This is not the true application of the test. Test requires something to be eliminated, not added.

4) Conclusion?

4
Page
Unit 15 LO 15 @ a glance 4
 5
Page
Unit 15 LO 15 @ a glance 5
LEGAL CAUSATION

• Legal causation limits liability, where a factual causal link exists.

It determined which of the harmful consequence(s) actually caused by the wrongdoer’s wrongful culpable act, he should
be liable for i.e. which consequences needs to be imputed to him.

• Background:

Tuck v Cir 1988 / Alston-case

• 2 Enquiries in causation:
1) Is there factual causation? I.e. does a factual link exist between the act / omission and the harm?
2) Is there legal causation? Whether the wrongdoer should be held liable? Is the link sufficiently close? If too remote,
no legal causation.

6
Page
Unit 15 LO 15 @ a glance 6
 DIFFERENT TESTS FOR LEGAL CAUSATION (THEORIES)

THEORY CRUX CASE LAW CRITICISMS OBSERVATIONS

Definition: The basic question is whether S v Mokgethi: Deceased was a bank The other tests for
there is a close enough relationship teller, was shot between the legal causation may
between the wrongdoer’s conduct and its shoulders during a robbery. Became play a subsidiary
consequence, for such a consequence to a paraplegic as a result of the shot, role in determining
be imputed to the wrongdoer in view of and had to make use of wheelchair. legal causation
policy considerations based on His condition improved and he later within this flexible
reasonableness, fairness and justice. resumed his work at the bank. He approach, by
FLEXIBLE APPROACH

developed pressure sores because reflecting legal

Other tests may play a subsidiary role. he failed to shift his position as he policy and legal
had been told by doctors. He then convictions as to
In each case the court must apply the developed septicaemia and died. when damage should
theory which serves reasonableness and Contended that appellants (def’s) be imputed to a
justice best, in light of the were factual but not legal cause of person.
circumstances, taking policy his death.
considerations into account. Held: Appeal by def’s succeeded.
Factual and legal causation must be
distinguished.
None of the existing criteria on
legal causation is satisfactory for
all cases. A flexible approach must
be followed – taking into account
reasonableness, fairness and
justice.
Confirmed in International

7
Shipping Co (Pty) Ltd v Bentley.

Page
Unit 15 LO 15 @ a glance 7
 THEORY CRUX CASE LAW & SUPPORTERS CRITICISMS OBSERVATIONS
Definition: A consequence which has in Snyman favours this approach. Van Rensburg – It is very similar to
fact been caused by the wrongdoer, is says it is too the test of
imputed to him if the consequence is It is more easily distinguished from mathematical reasonable
adequately connected to the conduct. negligence. foreseeability which
has been applied by
THEORY OF ADEQUATE CAUSATION

X = liable for the consequence if most courts.

adequately connected to conduct.
Question to ask:
When will that be? If according to Was the damage
human experience, in the normal course reasonably to be
of events, the act has the tendency of expected
bringing about that type of consequence. consequence of the
act?
Example 1:
X strikes a match and sets a cabin alight.
Cabin burns down.
FC and LC

Example 2:
X calls dog which frightens the cat, who
knocks town a lamp and cabin burns down.
FC but NO LC.
Why? It was not the reasonably
expected consequence.

8
Page
Unit 15 LO 15 @ a glance 8
 THEORY CRUX CASE LAW AND SUPPORTERS CRITICISMS OBSERVATIONS
Definition: Ac actor is liable for all the Stems from the English law: Leads to Stems from UK law.
direct consequences of his negligent Polemis case (UK 1921) – exceptionally
conduct. A hired a ship. Petrol tins leaked in wide liability. UK limits it by the
the hold and one employee dropped “Foreseeable
X = liable for ALL the direct a plank negligently in the hold, which Def is even held plaintiff doctrine”
DIRECT CONSEQUESNCES THEORY

consequences of his act … not merely caused a spark and a big fire. A was liable for as mentioned.
the foreseeable ones. held liable for the direct consequences
Example: Egg- skull cases consequences of his negligent act. that are not
reasonably
Consequence need not follow the cause Smith v London& SW Railways foreseeable nor
immediately in time and space. (UK) – A railway Co left dry wigs on which follow
the side of the track, which ignited immediately
Has been limited to direct physical and destroyed a house. Def liable from his
consequences. for all consequences. conduct.

Also the link between cause and Pigney v Pointer’s Transport (1957 Mechanical
consequence must NOT have been broken UK) – P’s husband suffered injuries Severely
by a NOVUS ACTUS INTERVENIENS in an accident, got so depressed and criticised.
(an independent intervening conduct or committed suicide. Court held his
event). death was direct consequence of Applied only once
accident and def. was held liable. in SA law
The wide effect has been limited by the (Frenkel v Cadle
foreseeable plaintiff doctrine. Thus: An This theory was later overturned - 1915)
actor doesn’t act negligently towards a Wagonmound case = only
plaintiff unless it is reasonably foreseeable damage recoverable.
foreseeable that the particular

9
plaintiff will be injured (even though

Page
other persons may be injured).

Unit 15 LO 15 @ a glance 9
 THEORY CRUX CASE LAW AND SUPPORTERS CRITICISMS OBSERVATIONS
Definition: The wrongdoer is liable only Van der Merwe & Olivier: TOO simplistic – ALSO breaks down
for those consequences in respect of Dealing with these two elements just because in cases of strict
which he had fault – in other words those (fault and causation simultaneously), most cases of LC liability (where
consequences covered by his fault are simplifies the examination. is not an issue, fault is not a
imputed to him. doesn’t mean requirements at all).
BOBERG: Enquiry into LC can be that it can be
X = liable only for those consequences iro disposed of. denied its Consequences by
which he had FAULT separate right intention, can never
THE THEORY OF FAULT

of existence. fall outside the

FAULT: DOLUS (Intent) or limits of liability.
CULPA (Negligence) Fault enquiry Wrongdoer
must be kept intended them.
Question of LC is unnecessary … it can be separate from
disposed of when assessing FAULT. the LC enquiry. Negligence as
criterion: there are
THUS: Intention or Negligence can be Neethling & fundamental
used as a criterion for LC. Potgieter: Do differences
not advocate between
this approach. wrongfulness, fault
As per: and imputability
Thandani v Min (due to causation).
or Law & Order
1991 AD
DO NOT APPLY
THIS
APPROACH!

10
Page
Unit 15 LO 15 @ a glance 10
 THEORY CRUX CASE LAW CRITICISMS OBSERVATIONS
Definition: Was the consequence, as well No clear picture in case Plays a subsidiary role –
as the causal progression between the law. should not be seen as a
act and the consequence, at the time of single, decisive criterion
the act foreseeable with such a degree Courts look at whether for establishing liability.
THE REASONABLE FORESEEABILITY

of probability, that the consequence can the specific result was

reasonably be imputed to the foreseeable or not. It is NB to
wrongdoer. differentiate between
Highly improbable fault re foreseeability
results are generally and preventability AND
excluded. imputability (causation).
APPROACH

11
Page
Unit 15 LO 15 @ a glance 11
2 FURTHER CONSIDERATIONS:

NOVUS ACTUS INTERVENIENS: A new intervening cause is an independent event which after the wrongdoer’s act has
been concluded, either caused or contributed to the consequences concerned.

• Event is only a novus actus interveniens if it is not reasonably foreseeable.

• The question is to what extent the event influences the possible liability of the wrongdoer.

NOVUS ACTUS COMPLETELY EXTINGUISHES THE NOVUS ACTUS INFLUENCES THE RESULT
CAUSAL CONNECTION BETWEEN CONDUCT OF
WRONGDOER AND CONSEQUENCE
• Wrongdoer’s act can no longer be considered to be a • Where the novus actus interveniens influences the result
factual cause of the consequence. to such an extent that the result should no longer be
• Effect: Wrongdoer will escape delictual liability. imputed to the actor, although his conduct remains a
factual cause of the Novus actus result.
• Effect: limits the liability of the wrongdoer.

• Novus actus interveniens is merely one of many factors the court considers when determining whether the defendant
should be held liable for the consequences.

• The novus actus interveniens may be brought about by the conduct of the plaintiff himself, by the conduct of a 3rd party
or by natural factors such as wind or rain.

12
• An event qualifies as a novus actus interveniens only if it was NOT reasonably foreseeable.

Page
Unit 15 LO 15 @ a glance 12
EGG SKULL CASES: If 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 if the plaintiff did not suffer
from such a weakness.

• It is traditionally expressed as the maxim “the wrongdoer must take his victim as he finds him” (talem qualem rule).

• Here the wrongdoer is also liable for the harm which may be ascribed to the existence of the weakness concerned.

• No agreement as to how the liability of the actor for such harm should be justified, or which legal criterion for legal
causation should be used to express liability.

• Authors viewpoints:
o Some authors suggest the reasonable foreseeability norm. (Van Rensburg)
o Other authors support direct consequences theory. (Van der Walt)
o Others dismiss the egg-skull cases as unreasonable. (Van der Merwe & Olivier)

• The most reasonable approach to the egg-skull cases is made possible by the flexible criterion for legal causation.

• In terms of this criterion, the basic question is whether, in light of all the circumstances of the case, amongst others the
egg-skull situation; the damage should reasonably and fairly be imputed to the defendant.

13
Page
Unit 15 LO 15 @ a glance 13
CASE LAW:

S v Mokgethi 1990

International Shipping Co (Pty) Ltd v Bentley 1990

(Summarise and study these cases.)

TO RECAP:

5 ELEMENTS / REQUIREMENTS OF A DELICT: [CHAWF]

Act – voluntary human act

Wrongfulness – legally reprehensible + consequence

Fault – legally blameworthy (Intention / negligence)

Causation – link between act and damage

Harm (loss) – patrimonial / personality

14
Page
Unit 15 LO 15 @ a glance 14