Week 5 – Causation

Chapter 5 – Causation

5 - Causation:

5.1 - General:

Causation, or the causing of damage through conduct, is a necessary requirement of a delict and involves a factual enquiry
into all available facts and probabilities.

It is important to distinguish between factual causation, which refers merely to the fact that one event led to another, and
legal causation, which refers to those factually caused events for which the wrongdoer may be held liable. It is necessary for
legal causation to be much narrower than factual causation since one action could have innumerable consequences and it
would not be equitable to hold the wrongdoer liable for all subsequent events.

5.2 - Factual Causation:

5.2.1 - General:

The first stage in an enquiry into causation is to determine whether or not the conduct of the wrongdoer in fact led to the
damage suffered. This is not generally a problem in practice and as a rule the courts merely determine whether one fact
follows on from another.

The dominant theoretically approach in this regard is what is known as the conditio sine qua non theory, which will be dealt
with in more detail below.

5.2.2 - The Conditio Sine Qua Non Theory:

According to the "but for" test, an act is the cause of a result if the act cannot be thought away without the result
disappearing simultaneously. The act must in other words be the conditio sine qua non of the result.

An act is the juridically relevant sole cause of a result if the act cannot be thought away without the result disappearing
simultaneously. An act is the juridically relevant joint cause of a result if the act in itself can be thought away without the
result disappearing simultaneously, but cannot, in conjunction with another juridically relevant act or acts which can on their
own be thought away without the result disappearing simultaneously, be though away without the result disappearing
simultaneously.

In cases of a positive act, such act must be 'thought away' but the position in the case of an omission is less clear. According to
the Constitutional Court, an omission must be thought away by substituting such omission for the act that would have been
taken by the reasonable person in the place of the defendant.

However, Harms JA (formerly of the Supreme Court of Appeal) disagrees and believes that the correct approach is to consider
not only the action that would be taken by the reasonable person (the objective action) but also the action that the
defendant would have taken in the situation, had he/she/it taken action. See in this regard Minister of Safety and Security v
Carmichele 2004 (3) SA 305 (SCA) 329.

5.2.3 - Logical Criticism of the Conditio Sine Qua Non Theory:

The conditio sine qua non theory, although still widely accepted and referred to, has been subject to considerable criticism,
some of which is outlined below.

(a) The conditio sine qua non theory is based on a clumsy, indirect process of thought that results in circular logic; and

(b) The conditio sine qua non test fails completely in cases of so-called cumulative causation; and

(c) The conditio sine qua non test is not, in fact, a test for causation but rather an ex post facto way of expressing a
predetermined causal nexus.
S v Mokgethi 1990 (1) SA 32 (A) [Prescribed]:

In casu, a bank teller was shot and paralysed during a robbery. Upon release from the hospital he was told to shift in his chair
to avoid pressure sores and septicaemia.

Held that one could, and indeed must, utilise evidence from other sources (in this case medical practitioners) to determine a
causal nexus.

International Shipping Co (PTY) LTD v Bentley 1990 (1) SA 680 (A) [Prescribed]:

In casu,

Held that in applying the conditio sine qua non, the court must give regard to the other factors which may have led to the
result.

5.2.4 - Conditio Sine Qua Non and Causation by Omission:

Note must be taken here that although still referred to as an application of the conditio sine qua non test, this is not strictly
true in a theoretical sense since in the case of an omission was is not eliminating something in the mind but is rather adding it
in.

S v Van As 1967 (4) SA 594 (A) [Prescribed]:

In casu, a policeman neglected to search for children who had fled into the night and later died of exposure.

Held that the test in the case of an omission was to insert positive reasonable conduct in place of the omission and then apply
the "but for" test.

Minister of Police v Skosana 1977 (1) SA 31 (A) [Prescribed]:

In casu,

Held that the test in the case of an omission was to insert positive reasonable conduct in place of the omission and then apply
the "but for" test.

5.2.5 - The Determination of a Factual (Causal) Nexus:

In light of the above, it is clearly not correct to refer to condition sine qua non as a genuine test for causation and the
question then is what should be used in its place.

In essence, determining factual causation is nothing more than a logical examination of two facts or sets of facts and whether
the one has given rise to the other. Due to the complex and ever-changing nature of reality, it is suggested that it would be
impossible to formulate a general test for factual causation, moreover, there are doubts as to whether such a test, if possible,
would be necessary.

Furthermore, whilst the legal determination of factual causation may, and in many cases must, be informed by other
disciplines, it is important to note that the approaches to causation will differ drastically between fields.

It is also worth noting that the conduct of the wrongdoer need not be the only or even the primary cause of the damage
suffered for there to be factual causation.
5.3 - Legal Causation:

5.3.1 - General:

As previously stated, the mere existence of a factual causal nexus does not mean that the defendant
will be held liable since one act may have many consequences and as such an enquiry into causation
must also include an enquiry into legal causation (otherwise referred to as “limitation of liability” or
“imputability of harm”).

As a general rule, a wrongdoer will not be held liable for harm which is too remote from his/her/its
wrongful conduct.

It is worth noting that in practice there is rarely a need to enquire into legal causation expressly since
this can usually be dealt with tacitly under the investigations into wrongfulness or fault.

Furthermore, an investigation into legal causation is not the only manner in which one can limit the
liability of the wrongdoer – the determination or otherwise of wrongfulness and fault will also have
an impact here. Legal causation will be used to limit the liability of the defendant primarily where the
defendant is to be held liable for certain consequences of his/her/its act and not others.

5.3.2 - The Flexible Approach:

The current position of our courts on legal causation was set out by the Appellate Division in the case
of S v Mokgethi 1990 (1) SA 32 (A).

The so-called flexible approach, which does not involve a single general criterion but rather whether
or not there is a close enough relationship between the wrongdoer’s conduct and its consequences
for such consequence to be imputed to the wrongdoer in view of policy considerations based on
reasonableness, fairness and justice.

5.3.3 - Adequate Causation:

According to the adequate causation theory a consequence which has in fact been caused by the
wrongdoer is imputed to him/her/it if the consequence is adequately linked to the conduct. The
connection is termed adequate if, according to human experience, in the normal course of events
the act has the tendency of bringing about that type of consequence.

In order to determine whether or not an act has the tendency of bringing about a certain
consequence, the following should be asked:

 Was the damage the reasonably-to-be-expected consequence of the act; or

 Did the damage fall within the expected field of protection envisioned by the legal norm that
was infringed; or
 Were the consequences juridically relevant with reference to the cause?

Joubert further notes that a determination of adequate consequences involves the employment of
the knowledge which an ordinary sensible person would have under the circumstances as well as any
specific information which the wrongdoer may have been in possession of at the time. In addition, in
determining the probable result, one must employ all human knowledge, including that only
available to specialists or that only came to light after the fact.
5.3.4 - Direct Consequences:

According to the (English Law) theory of direct consequences, an actor is liable for all the direct
physical consequences of his/her/its actions, provided that there has been no novus actus
Interveniens and that the consequences are suffered by a person whom the wrongdoer could
reasonably have foreseen suffering harm from his/her/its conduct. In other words, liability is not
strictly limited to the reasonably foreseeable consequences and an act and its consequences may be
separate in both space and time.

This theory has only been accepted eo nomine [in so many words] in the reported cases of Fourway
Haulage SA (PTY) LTD v SA National Roads Agency Ltd 2009 (2) SA 150 (SCA) 165 and Frenkel & Co
v Cadle 1915 NPD 173.

It has been suggested that it will only find application in the South African law of delict, as a
subsidiary to the flexible approach, in the so-called egg-skull cases of personal injury.

Smith v London and South Western Railway Co Ltd 1870 LR 6 CP:

In casu, the railway company left green twigs next to a railway line. Upon drying, these ignited and
caused damage to a nearby house.

Held that a person is liable for the direct consequences of his/he/its negligent act.

In Re Polemis and Furness, Withy & Co Ltd 1921 3 KB 530:

In casu, an employee negligently dropped a plank into the hold of a ship which was filled with petrol
fumes.

Held that a person is liable for the direct consequences of his/he/its negligent act.

Pigney v Pointers Transport Services Ltd [1957] 2 All ER 807:

In casu, the plaintiff’s husband was injured in an accident and as a result got depressed and
committed suicide.

Held that a person is liable for the direct consequences of his/he/its negligent act.

Overseas Tankship (UK) v Morts Dock and Engineering (Wagon Mound No 1) [1961] All ER 404 (PC):

In casu, the defendants negligently spilled oil from their ship into Sydney harbour. It caught alight
and damaged two ships belonging to the plaintiff.

Held that only foreseeable damage may be claimed.

Hay or Bourhill v Young 1943 AC 92 99:

In casu, a motorcyclist drove negligently past a tram and collided with a car. A passenger, on the
otherside of the tram, for distressed by the sight of the blood coming under the tram.

Held that the direct consequences theory would produce inequitable results and as such the
foreseeable plaintiff theory was introduced.

Held, further, that in terms of the foreseeable plaintiff theory the motorcyclist was liable to the
driver and owner of the motor vehicle but not the passenger of the tram since he could not
reasonably have foreseen that she would suffer damage as a result of his conduct.
5.3.5 - Fault:

5.3.5.1 - Intent as Criterion for Legal Causation:

5.3.5.2 - Negligence as Criterion for Legal Causation:

5.3.6 - Reasonable Foreseeability:

Traditionally, this has been the approach most often followed by South African Courts, but it has by
no means been clearly defined, the decision of the Court usually merely reflects that a certain result
was or was not foreseeable.

According to Van Der Walt and Midgley, it is not necessary for the exact extent or precise manner of
the harm to have been foreseeable, it is merely necessary for the general nature of the harm to have
been foreseeable and there to have been a real risk which the reasonable person would not have
brushed aside.

Van Rensburg proposes the following as a general test to be applied pending a decision by the courts:
Was the consequence, as well as the causal progression between the act and its consequence, at the
time of the act foreseeable with such a degree of probability that the consequences can, in light of
the circumstances, reasonably be imputed to the alleged wrongdoer?

In addition, Van Rensburg provides that the basis of considering probability is formed by the
following:

(1) ‘The facts of which the reasonable man in the position of the actor would have taken
note, augmented by the actor’s special knowledge’;

(2) That where the events ‘took quite an unusual turn … the adjudicator also has to decide
whether the causal chain of events was foreseeable with a sufficient amount of probability
to render the actor liable in respect of the result or results that eventuated in such
extraordinary way’;

(3) That the extent of the harm never needs to be foreseeable in order for the wrongdoer to
be liable for it;

(4) That the criterion and principles referred to apply similarly to intentional and negligent
wrongful conduct; and

(5) That the reprehensible motive of a wrongdoer who acts intentionally, would probably
play a role in determining legal causation.

Even though the matter is usually settled after an examination into fault and without an express
examination of legal causation, care must be taken to avoid confusing the requirements for fault and
legal causation, since in the case of the former the reasonable person is not, so to speak, in the shoes
of the wrongdoer but standing next to him/her/it.

5.3.7 - Novus Actus Interveniens: A novus actus interveniens [new intervening cause] is an
independent event which, after the wrongdoer’s act has been concluded, either caused or
contributed to the consequence concerned.

Where such a cause arises and completely extinguishes the causal link, then there is no factual
causation and as such there can be no legal causation.
However, where the novus actus interveniens does not extinguish factual causation, it may have
influenced the result to such an extent that the wrongdoer will not be held liable (there will be no
legal causation).

The requirements for a novus actus interveniens to sever the legal nexus will depend on the
particular approach to legal causation applied in that case.

In terms of the flexible approach, the question is whether or not the novus actus is such that liability
cannot be imputed to the defendant on the basis of policy, reasonability, fairness and justice.

When applying the direct consequences theory, the test is whether or the novus actus broke the
‘directness’ of the causal chain.

When using the reasonable foreseeability approach, the determining factor is whether or not the
novus actus is such that it prevents the consequence from being reasonably foreseeable.

A novus actus may be brought about by the (culpable) action of the plaintiff, a third party or natural
factors. Note must be taken that an act will only qualify as a novus actus if it was not, at the time of
the wrongful conduct, reasonably foreseeable.

Mafesa v Parity Versekeringsmaatskappy BPK 1968 (2) SA 603 (O) [Prescribed]:

In casu, the plaintiff slipped and fell and fractured his already fractured bone.

Held that since this act was not foreseeable, it constituted a novus actus interveniens.

5.3.8 - So-Called Egg-Skull Cases (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 had not suffered such a weakness.

It is generally accepted that the wrongdoer in this case will be liable for the full extent of the damage
suffered, in keeping with the maxim of “take your victim as you find him”.

There is not, however, consensus on the rationale behind this.

According to Van Rensburg, this is the case because, for the most part, egg-skull cases arise where
the wrongdoer has threatened the plaintiff’s most precious legal interest – his/her physical-mental
integrity and it is mere coincidental that the harm arose in another manner.

Van der Walt and Midgley link this concept in cases of physical injury to the direct consequences
theory (see above).

By contrast, Van der Merwe and Olivier reject this doctrine as it does not coincide with their strict
adherence to fault as a criterion for the imputability of harm.

Smit v Abrahams 1994 (4) SA 1 (A) 14 [Prescribed]:

In casu, the plaintiff (who relied on his vehicle for financial subsistence) was forced to rent a vehicle
after his own was irreparably damaged by the defendant.

Held that the fact that the plaintiff in a particular case was a so called “egg-skull case” was merely
another factor to be considered when determining causation under the flexible approach.
Chapter 5 – Causation

Introduction
 a causal nexus between conduct and damage is required for a delict.
 Causation is a question of fact which must always be answered in light of the
available evidence and relevant probabilities.
 A causal nexus is simply something which (factually) exists or doesn’t exist.
 Factual causation and legal causation.
 Koch case = medical evidence
- Court had to decide whether the defendant, the 3 rd party insurer of a vehicle, with which
the driver negligently smashed into the rear of the plaintiffs vehicle.
- Could the defendant be held liable for expenses incurred as a result of a thrombosis
which was allegedly causes by a persistent state of anxiety, arising from the neck injury
which the P suffered during the injury?
- Court held that on medical evidence it was impossible to say that the eventual
thrombosis was a result of the accident.

The condition sine qua non theory

 This is also known as the BUT FOR TEST
 This is a factual test for causation
 Van der Merwe & Olivier = the act must be conditio sine qua non of the result.
 In the case of a + conduct/commission on the part of the D, the conduct must be
removed in the mind to determine whether the relevant consequence would still
have resulted.
 In the case of an omission this theory requires that a hypothetical + act be inserted
into the particular set of facts, this can also be regarded as the mental removal of the
D omission.
 If a hypothetical + act could’ve prevented the damage, it can be said that the D
omission was the cause of the damage.
 This enquiry requires a retrospective analysis of what would probably have
happened, based upon the evidence and what could have been expected in the
ordinary course of human endeavour.
 Hypothetical + conduct determined objectively =It must 1 st be determined whether
he could have prevented dam and then the reasonable person test.

Logical criticism of above theory

- The condition sine qua non theory is based on a clumsy, indirect process of thought
that results in circular logic : this theory may compel in certain circumstances to follow
a particularly clumsy and indirect approach which ultimately doesn’t provide a solution.

- The condition sine qua non test fails completely in cases of so-called cumulative
causation: cumulative causation occurs where more than 1 act cause a particular
consequence. Example X and Y shoot Z in the head simultaneously.

- The condition sine qua non test is in fact not a test of causation because its merely an ex
post facto way of expressing a predetermined causal nexus: this is the most important
reason why this theory is unacceptable as a test for causation. One can only employ this
 theory after one has in some or other way already determined the cause of the
particular consequence (causal nexus between an act and a particular result). Example Y
gives X a beer, after drinking it X dies...one cannot establish whether the beer in fact led
to the death of X.

Condition sine qua non and causation by omission

 The general view is that this test may only be applied where one wishes to
determine whether an omission caused a certain consequence.
 S v Van As: policemen neglected to search for children who had fled into the night
and later died of exposure. Court attempted to test the causal connection between
the omission and the death by asking whether reasonable search would’ve
prevented the childrens death?
 The argument that the condition sine qua non is a true test for causation in cases of
omission is theoretically incorrect.

The determination of a factual (causal) nexus

 Since the above theory cannot really function as a valid test for causation on the
grounds of logic and comparative law, the question arises what test or method
should then be used in this regard?
 Factual causation concerns a particular kind of link or connection between at least 2
facts or set of facts, nl the link existing when one fact arises out of another.
 Its incorrect to state that a test for factual causation also contains normative
elements, because factual causation is something that either exists or it doesn’t.
 Therefore factual causation in itself is not a policy matter, but rather a pure question
of fact.
 A test for factual causation therefore depends on the facts of each case and is not
something of a general nature that can be applicable to all factual complexes.
 Its usually sufficient for the purposes of factual causation if a defendant`s conduct
has IN ANY WAY contributed to the damage sustained by the plaintiff,
 For causation its unnecessary that his conduct should be the only cause, or the main
cause, or a direct cause.
 Due to the fact that there is no magic formula by which one can generally establish a
causal nexus, the existence of such a nexus will depend on the facts of a particular
case and a characteristic of a causal nexus is that 1 fact arises out of another!!

Legal causation

- GENERAL:
 No legal system holds a wrongdoer liable without some limitation for the endless
chain of harmful consequences which his act may have caused.
 The question of legal causation arises when determining which harmful
consequences actually caused by the wrongdoers wrongful, culpable act he
should be held liable for, i.e. which consequences should be imputed to him.
 Normally legal causation is only problematic where a chain of consecutive or
remote consequences results from the wrongdoers conduct, and where its
alleged that he should not be held legally responsible for all the consequences.
  The concepts legal causation, limitation of liability and imputability of harm are
used synonymously to indicate the process whereby the court determines which
of the heads of damage caused by an actor he should be held liable for:
- Clarke v Hurst = the question is whether the result can fairly be said to be imputable to
the defendant.
- Smit + Nedperm bank ltd = its still necessary to determine legal causation, i.e. whether
there is a sufficiently close or direct link between the defendants wrongful act and the
loss for legal liability to ensue.
 Legal causation as an independent element arises specifically where it appears
that the wrongdoers conduct was wrongful and culpable with reference to at
least certain consequences and that the consequences should in addition be
imputed to him.
 What criterion should be used to determine legal causation = there a 4 theories
which will now be discussed:

1. THE FLEXIBLE APPROACH (NB):

 S v Mokgethi = court held that there is no single and general criterion for legal
causation which is applicable in all instances. A flexible approach is accordingly
suggested.
- In this case the deceased was a bankteller and was shot between the shoulder blades by
one of the appellants during a robbery.
- Deceased didn’t die immediately, but only 6 months later.
- He became a paraplegic as a result of the shot and had to make use of a wheelchair. His
condition improved to such a extent that he later went back to work at the bank.
- He was readmitted in hosp due to serious pressure sores and septicaemia.
- Court held that the wounding of the deceased couldn’t be regarded as the legal cause of
his death for the purposes of the charge of murder.
 The basic question is whether there is a close enough relationship between the
wrongdoers conduct and its consequence for such consequence to be imputed to
the wrongdoer in view of policy considerations based on reasonableness, fairness
and justice.
 Smit case = according to the court reasonable forseeability may be used as a
subsidiary test in the application of the flexible approach, but it cannot exclude
the later approach.
 in terms of the flexible approach, the theories of legal causation are at the
service of the imputability question and not vice versa.
 Damage is imputable when depending on the circumstances, its a direct
consequence of the conduct, or reasonably foreseeable, or if its in adequate
relationship to the conduct or for a combo of such reasons.
 A court is NOT bound BEFOREHAND to a single, specific theory. Has the freedom
in each case to apply the theory which serves reasonableness and justice best in
light of the circumstances.
 The flexible approach which the AD adopted accommodates both approaches
represented by the formulae in the 2 major theories (direct consequences and
reasonable forseeability), and therefore strikes a fair and equitable balance
between the causally relevant and irrelevant consequences of wrongful conduct.
2. ADEGUATE CAUSATION:
 According to this theory, a consequence which has in fact been caused by the
wrongdoer, is imputed to him if the consequence is adequately connected to the
conduct.
 The connection is termed adequate if, according to human experience, in the
normal course of events the act has the tendency of bringing about that type of
consequence.
 Snyman: the theory of adequate causation entails an objective forward looking
test (one looks forward as from the moment of the act and ask whether that type
of result was to be expected).
 Generally speaking one would be able to say that a result normally to be
expected is also reasonably expected and vice versa.

3. DIRECT CONSEQUENCES (NB):

 According to this theory which stems from English Law, an actor is liable for all
the direct consequences of his negligent conduct.
 Liability is not necessarily limited to the foreseeable consequence of his conduct.
 A consequence needn’t follow the cause immediately in time and space to be a
direct consequence thereof.
 The possibly wide effect of the direct consequence test has also been limited by
the foreseeable plaintiff doctrine, according to this theory an actor doesn’t act
negligently towards a plaintiff unless its reasonably foreseeable that the
particular plaintiff will be injured.
 In SA the direct consequence theory was accepted in only 1 reported case =
Frenkel v cadle. Subjected to severe criticism.
 This theory doesn’t serve as a general test for the imputability of harm but, like
the other tests such as reasonable forseeability, fulfils a subsidiary role in
establishing legal causation ito the prevailing FLEXIBLE approach.
 Van der walt & Midgley = the direct consequences theory finds application in
respect of personal injuries where the wrongdoer is held liable for consequences
which, in their view, weren’t reasonably foreseeable, for example in the so
called egg – skull cases.

4. REASONABLE FORSEEABILITY (NB):

 Reasonable forseeablity has been used in a number of decisions as a criterion for
legal causation, but ito the prevailing flexible approach it plays a subsidiary role
just like all the other traditional tests for legal causation.
 This implies inter alia, that reasonable forseeability shouldn’t be seen as a single,
decisive criterion for establishing liability.
 Therefore, it would be possible in a given matter, merely on the basis of legal
policy, to impute liability ito the flexible approach even where the damage was
so exceptional that it couldn’t be described as reasonably foreseeable.
 Normally the forseeability test isn’t exactly defined, the decision simply being
that a specific result was foreseeable or not and that is the end of the matter.
 Van Rensburg = suggests as a general test the following criterion until such time
as the courts lay down concrete rules for the determination of legal causation
 according to this approach: was the consequence as well as the causal
progression btw the act and the consequence, at the time of the act foreseeable
with such a degree of probability that the consequence can, in light of the
circumstances, reasonably be imputed to the alleged wrongdoer?
 According to this approach an alleged wrongdoer is normally liable for all the
consequences of his culpable, wrongful act, except for the consequences that
were highly improbable.
 Reasonable forseeability may also serve as a subsidiary criterion for the
imputability of harm in cases of intentional wrongful conduct and liability
without fault.

NOVUS ACTUS INTERVENIENS:

 Novus actus interveniens (new intervening cause) is an independent event
which, after the wrongdoers act has been concluded, either caused or
contributed to the consequence concerned.
 Where the Novus actus interveniens completely extinguishes the causal
connection btw the conduct of the wrongdoer and the consequence with the
result that the wrongdoers act can no longer be considered to be a factual cause
of the consequence, that actor goes free.
 in each case it will have to be determined within the framework of the relevant
imputability test whether the novus actus has had the effect of serving the legal
nexus with the result that the consequence shouldn’t be imputed to the actor.
 When applying the flexible approach, the question is whether the novus actus
btw the D conduct and the relevant consequence has been such that the
consequence cannot be imputed to the D on the basis of policy, reasonability,
fairness and justice.
 In applying the direct consequence test, the Q therefore is whether the novus
actus breaks the directness of the consequence which is required for liability.
 When applying forseeability the Q is whether the novus actus influences the
degree of forseeability to such an extent that it may be said that the
consequence was not reasonably foreseeable as a result of the novus actus.
 A novus actus may be brought about by the (culpable) conduct of the P himself,
by the (culpable) conduct of a 3 rd party or by natural factors such as wind and
rain.
 An event will qualify as a novus actus ONLY if the event WAS NOT REASONABLY
FORSEEABLE.
 Example of a novus actus = wrongful arrest

SO CALLED EGG-SKULL CASES (TALEM QUALEM RULE):

 Egg-skull cases arise where the P, because of one or other physical, psychological
or financial weakness, suffers more serious injury or loss as a result of the
wrongdoers conduct than would have been the case if the P didn’t suffer from
such a weakness.
 The egg-skull rule has its origin in the English decision white & Sons and is
traditionally expressed in the maxim “the wrongdoer must take the victim as he
finds him.”
  Most jurists agree that in such a case the wrongdoer should also be held liable
for the harm which may be ascribed to the existence of the weakness concerned.
 The maxim “the wrongdoer must take the victim as he finds him”, is also
identified as the talem qualem rule.
 Van Rensburg = in these cases liability may still be explained with reference to
the reasonable forseeability norm.
 Van der Walt & Midgley link the egg-skull rule to the direct consequences
theory: see p192.
 Van der Merwe & Olivier: who strictly adhere to fault as a criterion for the
imputability of harm, content that the “reasonable man cannot be expected to
forsee the unforeseeable”, and declare that the notion that you must take the
victim as you find him should be rejected insofar as the reasonable person
wouldn’t have forseen the consequence concerned and that the injured party
should bear the loss himself.
 The most acceptable approach to the so called egg-skull cases is made possibly
by the flexible criterion for legal causation and illustrated by the judgement in
the Smit case.
 Ito this criterion, the fact that the P was an egg-skull case was just another fact to
be considered, with all the other facts of each particular case, when applying the
dominant elastic criterion, according to which the imputability of the particular
damage to the D must be determined.
 Thus the basic Q is not whether the damage was a direct consequence or
reasonably foreseeable, BUT whether in light of all the circumstances of the case,
amongst others the egg-skull situation, the damage should reasonably be
imputed to the D.

Chapter 5: Causation – Case summaries

International Shipping v Bentley

I Difference: factual and legal causation + criticism for CSQN

F - Plaintiff was a financial company

- Defendant was the auditor of another - Deals;
- On the strength of information provided by auditor  fin company gave
credit to Duels.
- Serious misrepresentations!!!! Fin company sought to hold auditor
liable.
- Before liquidated: very evident that company was in serious financial
trouble.

LQ Determining causation?

J - Act? YES fin stats with misleading information

- Wrongfulness? established due to breach of legal duty of auditor to
 credit provider. (professional services)
- Fault? Fraud not established; but inter-company manipulation of
turnover and expenses & taking to income of future rentals accruing
under pledged paper then respondent acted negligently.

CAUSATION: ***
 Factual? Accepted CSQN tests  fin stats – think away  present
 Legal causation? Confirmed Mokgethi (flexible approach necessary)
ABSENT… wasn’t an act for which the auditor can be held liable; Lapse
of time – long!!! Long since fin troubles established:
 Intervening conduct of plaintiff’s employees continued to give out
credit
 Foreseeability of damages? because later become aware of financial
problems.

D  claim dismissed

- 1ST Q FACTUAL: whether the defendant’s wrongful act was a cause of the
plaintiff’s loss?
- But-for test: enquire what would have happened but for the wrongful
conduct of defendant
No legal liability if wrongful act is shown not to be a causa sine qua non

S v Mokgethi

I Flexible approach (legal causality) & criticism CSQN

F - Deceased; bank teller shot during bank robbery

- Paraplegic as a result of the shot, had to make use of wheelchair
- Shots a factual cause of death but not a legal cause
- Deceased contributed to causing his own death by not taking proper care
of himself.

LQ

J  The factual causal connection between act and consequence is

determined by an analysis of available evidence on how one fact arises
 from another and not by ‘thinking away’ a certain fact – as per CSQN
 CSQN: signify an already existing causal connection
 Adopt a flexible approach to legal causation: BECAUSE NOT ONE EXISTING
CRITERIA IS SATISFACTORY IN ALL CASES  does a close enough
relationship between a defendant’s actions and its consequence so that
the consequence can be imputed to the defendant?
 Victims NOVUS ACTUS INTERVENIENS can sever legal causal connection

D - Testing for legal causality: FLEXIBLE APPROACH: Close enough relationship

between the act and the result ? ASKED on the basis of policy
considerations – the court must guard against liability exceeding what is
reasonable; fair and just.
- Court established causation in a sensible manner through reconstruction
of actual events:

S v Van As

I CSQN & causation by omission

F - Policeman neglected to search for children who fled and died of exposure
in the night
-

LQ Was the children’s death caused by omission to search for them?

J - Court inserted positive conduct in the place of the omission

Lee v Minister for Correctional Services 2013

F Mr Lee contracted tuberculosis (TB) while in prison. He sued the Minister for
damages on the basis that the poor prison health management resulted in his
becoming infected.

LQ

J - Our law has always recognised that the test for factual causation should
not be applied inflexibly as was done by the SCA
- Unlikely that any inmate will ever be able to overcome the hurdle of
causation and further that no effective alternate remedy will be available
to a person in the position of the applicant
 D

Smit v Abrahams

F - Defendant chose to rent a car because of his own impecuniosity was unable
to purchase a replacement vehicle.

LQ

J Reasonable foreseeability is a subsidiary test in application of the flexible

approach, but cannot exclude the flexible approach.

Imputed loss of renting to defendant as a matter of policy. (even when the

damage was so exceptional that it could not be described as reasonably
foreseeable.

Alston v Marine trade

I ADEQUATE CAUSATION – legal causation (3rd open-ended test: legal

causation foreseeability)

F - Plaintiff suffered brain damage as a result of motor vehicle accident in

which negligent driving was present
- Severally depressed as a result of brain injury  treated by a drug called
Parstellin; plaintiff ate cheese and had a stroke as a result of reaction.

LQ

J - Possibility of reaction unpredictable not reasonably foreseen

- Novus actus interveneus
-

D CLAIM FOR WHAT WOULD

CHAIN OF CAUSATION BROKEN

DIRECT CONSEQUENCES CASES

Smith v London & South Western

 I DIRECT CONSEQUENCES

F - Railway company
- Twigs; ignited by passing train spark shoot off
- Fire spread rapidly and burnt down a house

LQ

J - Direct consequence of original negligent act

Polemis

I DIRECT CONSEQUENCES

F A hired a ship; petrol tins leaked in hull; created petrol fumes.

One of A’s employees negligently dropped a plank into the hull caused a spark
and ship guttered. All of consequences EMPLOYEE HELD RESPONSIBLE 

LQ

J A BY VICARIOUS LIABILITY – for all direct consequences.

Fire was a direct consequence of negligent kicking of the plank

D In this case the ship being damaged  WRONG

Pigney

I Direct theory approach

F - Plaintiff’s husband died from injuries in an accident caused by negligent

conduct of defendant
- Husband suffering from injuries: fearful and depressed  committed
suicide

LQ

J > Even though very wide: court held defendant liable.

Palsgraf v Long Island

I Direct consequences
 F - In an attempt to help passenger on to train.
- Knocked packet out of hand which contained fireworks
- A huge explosion ensued; a large scale was dislodged and fell onto
another passenger.

LQ

J - Conductor and railway company can only be held liable for conduct in
causing the explosion from the falling fireworks
- Not reasonably foreseeable that scale would be dislodged and would fall
on and injure another passenger.

D COURT CRITICISED DIRECT THEORY !!!!

- negligence in act not negligence in dislodging the scale.

Bourhill v Young

F - Fishmonger unloading fish basket

- Motorcyclist exceeding the speed limit collided with motorcar straight
past her
- Plaintiff did not witness accident but suffered shock from seeing the
consequences
- Baby born still a month later as a result of serious emotional shock

LQ

J - Not reasonably foreseeable

- Motorcyclist liable to owner of car

Overseas Tankship v Morts Dock & Engineering

I WAGON MOUND 1 CASE - direct consequences + 2 only foreseeable damage

will attract liability

F - Defendant negligently caused oil spill near harbor of Sydney

- Soiled plaintiff’s property and caused damage because it was ignited and
 caused damage.
-

LQ

J - Know consequences can be reasonably foreseeable in relation to

pollution and damage therefrom foreseeable.
- Ignited oil and resultant fire – not liable for this! Not reasonably
foreseeable

D One judge – not foreseeable. Direct consequences done away with.

Wagon Mound II

F SIMILAR TO ABOVE
- Two ships next to each other and different owners
- Defendant’s ship leaked oil into the harbor. Welders working. Plaintiff and
defendant’s ships destroyed

LQ

J - ALL RESULTS WERE RESONABLE AND FORESEEABLE.

- Fire was reasonable and foreseeable.