An analysis of causation in medical law

Abstract

This dissertation addresses the most prominent difficulties involved in the determination of causation in the context of medical law in South Africa. The principal philosophical and conceptual basis of causation is based on pure logic, whereas legal principles governing causation are based on, and influenced by concepts such as "common sense" and "language". "Common sense", although forming an important part of any examination into causation, cannot adequately deal with complex issues of causation. The main South African principles governing causation, evidence a reliance on the traditional two-step test for causation, commencing with the conditio sine qua non theory and the limitation of liability through the application of the principles which govern legal causation. The tension between a purist approach to factual causation, based on the conditio sine qua non theory, and the wider "flexible" approach to factual causation enumerated by the Constitutional Court in Lee v Minister of Correctional Services 2013 2 SA 144 (CC) remains entirely unresolved. The inability of the conditio sine qua non theory to provide fair and just results in South African medical law requires the consideration of a risk-based, negligentincrease- in-risk approach to factual causation. Problems relating to evidentiary gaps, disease, drug interactions and multiple uncertain causes in medical law are universally encountered and the legal systems of Germany, England & Wales, Canada and Australia. The aforementioned jurisdictions provide useful comparative solutions and alternative approaches to problems in establishing causation in medical law. The alternative suggested approaches to the established principles of causation are premised on contribution to risk or damage, with a departure from purist approaches to factual and legal causation in English, Canadian and Australian law. Specific alternative approaches to traditional theories of causation are appropriate in single-cause cases, whereas cases involving different causal mechanisms are more complex and require careful consideration. Policy and legal certainty require conceptually sound, balanced and welldeveloped alternatives to traditional approaches to causation in medical law, without unduly favouring plaintiffs or defendants in medical law cases.