Contemporary perspectives on factual causation in the South African Law of Delict : a study with reference to medical negligence

Abstract

This purpose of this dissertation is to determine the ambit of the current requirements for the proof of factual causation in the South African law of delict, and to consider the implications thereof with reference to medical negligence. Proceeding from the premise that South African courts have employed the conditio sine qua non as the sole test for factual causation for at least the past forty years, this study commences with a review of selected older South African case law which evidences judicial recognition of alternative, less stringent tests for factual causation. It is concluded that South African courts have in the past employed versions of the material contribution test as well as hybrid tests in assessing factual causation to the benefit of plaintiffs who had proven negligence and injury, but were confronted with difficulty or impossibility in the proof of causation. The South African case law selection is concluded with the Constitutional Court s judgment in Lee v Minister of Correctional Services 2013 (2) SA 144 which, it will be argued, represents a significant departure from the prior common law position regarding factual causation. In an attempt to gain some perspective on what the said departure from the traditional test for factual causation might entail and what repercussions it may have, a study is made of selected case law from the United Kingdom pertaining to the application of modified tests for factual causation. It is concluded that the Constitutional Court in fact employed a material contribution to risk test for factual causation in Lee v Minister of Correctional Services 2013 (2) SA 144 and the reception of this judgment is considered in the light of academic commentary and perspectives gleaned from the United Kingdom. The discussion culminates in an opinion that the current common law position regarding the test for factual causation has not been defined clearly by the courts although it has certainly been relaxed into a less stringent formulation. The prevailing position is considered with reference to the Constitution and the possible reliance by organs of state on section 36 thereof is contemplated as a possible mechanism to resist positive findings of causation. Finally it is submitted that the contemporary formulation of the test for factual causation represents perhaps the most plaintiff-friendly delictual disposition in South African legal history, with the result that medical negligence is likely to be proved with greater ease in future.