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Purpose of the Study, Aim and Formulation of the Main Problem
The establishment of causation in determining the civil liability of medical practitioners1 in South African Law forms arguably one of the most vexing and nebulous problems facing any South African judge, jurist or practitioner today. Prosser, speaking on the subject of causation more than half a century ago, most aptly described it as a “tangle and a jungle, a palace of mirrors and a maze.”2 Nearly seventy years later Prosser’s words still accurately describe the quagmire that has become uncertain causation in medical negligence litigation.
This dissertation examines the element of causation in the law of delict, and more specifically, causation in the context of South African medical law. The subject of causation (especially insofar as it pertains to medical negligence claims) presents unique difficulties which are compounded by a variety of complex factors. Those factors include, but are not limited to, the state of medical science pertaining to medical procedures; uncertainties in respect of the development, mechanisms and progression of disease; the existence of pre-existing medical conditions on the part of a particular plaintiff; or the uncertainties pertaining to drug interactions prior to, during and after medical treatment. The difficulties facing those who wish to determine causation in the context of medical negligence litigation are by no means limited to South Africa. Chapter 4 of this dissertation will illustrate the ubiquitous and universal nature of uncertain causation in medical negligence litigation.
Recent developments in the South African law of delict, more particularly in relation the requirements for factual causation (in instances where the precise cause of a laintiff’s harm was difficult to determine), have seen departures from traditional binary approaches to the problem. In what has become something of a controversial judgment, the Constitutional Court in Lee v Minister of Correctional Services3 held that there can be no liability if causation is not proved on a balance of probabilities lest the “net of liability [be] cast too wide”4 and, simultaneously, finding that there can be “no magic formula by which one can generally establish a causal nexus”. According to the Court, the existence of the nexus will be dependent on the facts of a particular case. The Constitutional Court, in a majority judgment written by Nkabinde J, accepted the existence of a “flexible” test for factual causation.6 The judgment recognises and emphasises the shortcomings of the traditional conditio sine qua non theory in dealing with uncertain factual causation. Chapters 3 and 5 of this dissertation both contain a discussion of the uncertain implications of the acceptance of such test for factual causation in South African medical law.
As will be evident from what is outlined in this dissertation, the principles presently enumerated in respect of both branches of causation in various reported decisions of our Courts, including Lee v Minister of Correctional Services7, have created difficulties for both plaintiffs and defendants in medical negligence litigation. Scientific and evidentiary uncertainties which render the establishment of causation difficult, if not impossible, frequently confront litigants in medical negligence cases. The traditional test for factual causation, the conditio sine qua non theory, is often wholly unsuited to addressing the problem of uncertain causation in medical negligence cases. It may be impossible for meritorious plaintiffs in instances where negligence is proven, or the inference of negligence on the part of a medical practitioner may readily be drawn, to prove a causal link between the defendant’s negligence and his or her harm. It seems most unfair that a mechanical approach to factual and legal causation would see a plaintiff, who can prove her case on a balance of probabilities (i.e. “51%”), succeed against a medical practitioner when a similar plaintiff, who is only able to prove his case on a balance of probabilities to “49%”, is on-suited. On the other hand, it seems equally unfair that a medical practitioner should be held liable for damage when causation has not been proven against him, especially in an environment where defensive medicine and an unfettered flood of opportunistic litigation against medical practitioners appear to be the order of the day.Defendants may find that the net of liability has been cast too wide and that legal certainty in respect of the requirements for the establishment of causation (and liability) has been diminished.
CHAPTER 1: INTRODUCTION AND STATEMENT OF RESEARCH PROBLEM
1 INTRODUCTION
1 1 Purpose of the Study, Aim and Formulation of the Main Problem
1 2 Methodology and Comparative Approach
1 3 Need for and Relevance ofStudy
1 4 Notes on Style
2 CONCLUSION
CHAPTER2: CAUSATION, PHILOSOPHY AND LANGUAGE
1 INTRODUCTION
1 1 Causation and Philosophy
2 1 Language
2 2 « Common Sense »
3 CONCLUSION
CHAPTER3: CAUSATION IN SOUTH AFRICAN LAW
1 INTRODUCTION
1 1 Historical Development .
1 2 The Necessity of Causation in
the Establishment of Liability .
1 3 Factual Nexus .
1 4 Two-Stage Approach to Causation
2 FACTUAL CAUSATION .
2 1 Conditio Sine Qua Non Theory and Factual Causation
2 2 Conditio Sine Qua Non and Positive Conduct
2 3 Conditio Sine Qua Non and Failure to Act
2 4 Criticism ofthe Conditio Sine Qua Non Theory
2 5 Alternative Methods of Determining Factual Causation
3 RECENT DEVELOPMENTS: LEE V MINISTER OF CORRECTIONAL SERVICES
3 1 Lee v Minister of Correctional Services (CC): Majority Judgtnent
32 Criticism of Lee v Minister of Correctional Services (CC): Majority Judgtnent
33 Lee v Minister of Correctional Services (CC): Minority Judgtnent
34 Mashongwa v PRASA
4 SPECIFIC PROBLEMS IN FACTUAL CAUSATION
4 1 Single, Cumulative, Successive, Concurrent, Additional, Alternative and Multiple
Causes
5 LEGAL CAUSATION
5 1 Adequate Causation
5 2 Reasonable Foreseeability
5 3 Direct Consequences
54 Fault
55 Flexible Approach
56 Novus Actus Interveniens
57 « Egg-Skull » Cases
6 CAUSATION IN SOUTH AFRICAN MEDICAL LAW
6 1 Introduction: General Principles
6 2 Factual Causation in Medical Negligence Cases .
7 SUMMARY AND CONCLUSION
CHAPTER4: CAUSATION IN SELECTED FOREIGN JURISDICTIONS
1 INTRODUCTION
1 1 Historical Overview .
1 2 General: Civil & Common Law Systems
3 ENGLAND & WALES
3 3 Causation: Tort Law
3 4 Factual Causation
3 5 Legal Causation
3 6 « NESS » Causal Model
3 7 Discussion: Causation and Medical Negligence in England
4 CANADA
4 1 General
42 Factual Causation
4 3 Material Contribution to Injury .
44 Discussion: Causation and Medical Negligence in Canada
5 AUSTRALIA
5 1 General.
52 Causation: Tort Law
Disciplinary Tribunals
6 SUMMARY AND CONCLUSION
CHAPTER5: DISCUSSION, CONCLUSIONS, AND SUBMISSIONS
1 INTRODUCTION
2 COMPARATIVE OVERVIEW
2 1 South Africa
2 2 Germany .
2 3 England
2 4 Canada .
2 5 Australia
3 COMPARATIVE ANALYSIS
3 1 South Africa and Germany
3 2 South Africa and England
3 3 South Africa and Canada
3 4 South African and Australia
4 CAUSATION IN SOUTH AFRICAN MEDICAL LAW .
4 1 Discussion: Uncomplicated Cases .
4 2 Discussion: Complicated Cases
5 CONCLUDING THOUGHTS
Table of Cases
Table of Statutes .
List oflntemet References
Bibliography .
List of Abbreviations
