Factual causation
- The first step involves establishing factual causation – whether, judging from the facts, a certain act of the defendant caused the harmful result suffered by the plaintiff.
- The test for factual causation is the conditio sine qua non test or the but for test
- This entails mentally eliminating or removing the conduct and if the result also disappears, a factual causal link is present
- Mokgethi, Bentley and the majority of cases dealing with causation serve as authority for this test
- Neethling and Potgieter argue that evidence is sufficient to determine whether one fact flowed from another, but the courts consistently state that conditio sine qua non is the test of factual causation.
- Therefore if X hadn’t … Y, she would not have .. and a factual causal link is present
Legal causation
• No legal system can, on the ground of policy and fairness, allow unlimited liability merely based on factual causation, and therefore legal causation determines which of the harmful consequences caused by the wrongdoer’s wrongful, culpable act should be imputed to him
• The accepted test for legal causation is the flexible approach as formulated in Mokgethi and Bentley
• In terms thereof, the main question is whether the link between the conduct and the harmful result is close enough, when judged in view of policy considerations of reasonableness, fairness and justice for the consequence to be imputed to the defendant
• The defendant shouldn’t be held liable for harm which is too remote from the conduct
• According to the flexible approach, no single legal causation theory can solve all possible causation problems, but the other theories may be used as subsidiary aids:
o Adequate causation
o Direct consequences
o Foreseeability theories
o Novus actus interveniens
o Talem qualem rule (egg skull cases)
• Mokgethi – bank robber fired shot that rendered teller paraplegic
o Before discharge, teller was instructed to shift position in wheelchair to prevent pressure sores
o Failed to do so and pressure sores turned septic, which led to his death
o Although there was factual causation, court held that in terms of flexible approach legal causation was absent
o Teller’s omission to prevent forming of pressure sores constituted novus actus interveniens
• Therefore one could conclude that …. Was too remote and shouldn’t be imputed to X. ….. also constitutes a novus actus interveniens and strengthens conclusion that legal causal link between X’s conduct and Y’s …. Is absent.
Novus actus interveniens
- New intervening cause
- Independent event which, after the wrongdoer’s act has been concluded, either caused or contributed to the consequence
- When applying the flexible approach, the question is whether the novus actus between the actor’s conduct and the relevant consequence has been such that the consequence cannot be imputed to him on the basis of policy, reasonability, fairness and justice
- A novus actus interveniens may be brought about by the plaintiff himself, a third party or natural factors
- An event will only qualify as a novus actus if it wasn’t reasonably foreseeable
Talem qualem rule
• Egg-skull cases arise where 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 hadn’t suffered from such a weakness
• Rule originates from English decision Dulieu and is expressed in the maxim “the wrongdoer must take the victim as he finds him”
o Held that if a man is negligently run over or otherwise negligently injured in his body, it is no answer to the sufferer’s claim for damages that he would have suffered less or no injury if he hadn’t had an unusually thin skull or unusually weak heart
• Wilson – plaintiff was injured when employees of the defendant, in demolishing scaffolding around a building in a negligent manner, caused a pole to fall down which struck the plaintiff on the back of his head or neck
o A few years earlier, the plaintiff had been stabbed in the forehead with a knife and in the ensuing operation, a portion of the plaintiff’s skull bone was removed
o At this pot the skin became attached to the brain
o The blow of the pole against the rear of the head/neck therefore caused a more serious brain injury than otherwise would have been the case
o Court decided that the defendant was liable for the full extent of the injury, despite the fact that the injury may have been partially attributed to the existing weak spot on the plaintiff’s head
• Smit – clear that financial weakness of a plaintiff also falls under the rule that a defendant must take his victim as he finds him
