DELICT LAW Causation with ref to Contrib Neg new students by LMwgG8


									                                                                  MS STAROSTA’S CLASS 2011

                                            LAWS 2003

                                 NEGLIGENCE: CAUSATION

``In order for a plaintiff to have an Aquilian remedy against a defendant, the defendant’s
intentional/negligent and wrongful conduct must have caused the plaintiff’s loss, that is, there
must be a causal nexus between the defendant’ conduct and the plaintiff’s loss.
``Causation involves two distinct enquiries:

1.     Factual causation:
`The Court is concerned with the question of whether the defendant’s act/omission caused or
contributed to the harm suffered by the plaintiff. If not, then there is no liability since a person
cannot be held liable for damage he didn’t cause. It is a question of fact – did the defendant’s
conduct cause the plaintiff’s harm?

 But for the defendant’s conduct would the plaintiff’s harm still have occurred? If yes, then the
         defendant’s conduct is the condictio sine qua non or the factual cause of harm.

``Note that more than one thing or person may be the factual cause of harm, including the
plaintiff himself. i.e. it is possible for the plaintiff to CAUSE SOME OF HIS OWN HARM.

2.     Legal causation:
`Legal causation serves to narrow the scope of liability created by factual causation to establish
who/what is the sufficiently closer cause of harm.
`Here we are looking to the remoteness of damage. This is a question of law, not fact, and is
determined by considerations of legal policy.
`The idea is that the law cannot hold one liable for every possible consequence of his conduct
and a line is drawn between the more direct and immediate consequences for which the

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defendant can be held liable, and the indirect consequences which are so far removed from the
defendant’s conduct that the defendant cannot justifiably be held accountable for.

If the harm is not sufficiently closely linked to the defendant’s conduct for liability to result, then
                   harm is too remote for the plaintiff to recover compensation.


General Principle
The leading case on factual causation is Skosana, where the Court laid down the test for factual
causation as the sine qua non or ‘but-for’ test. The Court must ask whether the harm in suit
would have happened if the defendant had not been negligent i.e. would the harm (suffered by
the plaintiff) have occurred but for the conduct of the defendant?
If yes, then the defendant can’t be held delictually liable because his conduct is not the factual
cause of the plaintiff’s harm given that the harm would have happened anyway.
If no, then the defendant has in fact caused (or at lt least helped to cause) the harm suffered given
that the harm would not have occurred without the defendant’s conduct - the test of factual
causation is satisfied.

How do we apply the test?
To apply the but-for (conditio sine qua non) test, the court must notionally eliminate the
defendant’s conduct and work out what would have happened. The plaintiff bears the onus of
proving that harm wouldn’t have happened without the defendant’s conduct.
Most of the time, conditio sine qua non is established without difficulty.

Minister of Police v Skosana 1977 (1) SA 31 (A)
`` Skosana was arrested for drunken driving after an accident, and was put into a cell.
``The next day he complained of servere abdominal pains at 7:45 in the morning, and asked to
see a doctor. T
``The police delayed until 9:30am when they finally walked with him to the doctor.

                                                                 MS STAROSTA’S CLASS 2011

``The doctor examined Skosana and told the police to rush him to hospital immediately.
``The police, however, delayed another 3 hours, and Skosana eventually arrived at hospital at
``It was then found that he had a ruptured bowel and had to have an emergency operation. He
died on the operating table shortly before 16:30pm.
``His widow then brought a dependant’s action, alleging that the Minister was vicariously liable
for the delay of the police.
``She argued that if the police had acted reasonably, then Skosana would have gone to hospital
much earlier, and he would have survived.
     Question: did the delays of the two constables in fact cause Timothy Skosana’s death?

The plaintiff had proved on a balance of probabilities that if the police had acted reasonably and
summoned medical help, Skosana would have lived i.e. factual causation was present. They
therefore held the Minister vicariously liable. Corbett J confirmed that the test for factual
causation is the conditio sine qua non test. To determine if the constables’ delays were the
factual cause of TS’s death, one must use a hypothetical inquiry, to determine if TS would still
have died. If the operation had occurred at that earlier time, TS would have survived. The delay
(conduct) was therefore the conditio sine qua non of TS’s death. (If eliminate the delay, the
death would not have occurred – the delay was a necessary condition for TS’s death.)

``Where negligence has contributed solely to the extent of the damage/harm suffered, but has had
no causative effect on the event/accident from which the damage has resulted, can it be said that
factual causation is satisfied?
``This problem typically arises in cases of contributory negligence on the plaintiff’s part which
has increased the amount of damage but did not (help to) cause the event/accident from which
the damage has resulted.
``When we say that negligence must have caused the damage in question, do we mean that the
negligence must have contributed causally to the event, or is this unnecessary?

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``The classic situation is the case of the negligent failure of a motorist to wear a seat belt or the
negligent failure of a motorcyclist to wear a helmet.
``In these cases, the failure to wear the seat belt or crash helmet does not help to cause the
collision, but it results in the victim suffering greater injury (sustaining increased injury) than he
would have been suffered had a seat belt or crash helmet been worn.

NB QUESTION: do we take this negligence into account? Is this negligence causally relevant
to the defendant’s liability?

``Initially the South African courts adopted the view that there had to be a causal connection
between the negligence complained of and the event from which the harm resulted (the collision
``The conduct cannot be causally relevant, unless it causes or contributes to the accident from
which the harm results.
``Failure to wear a seat belt/ helmet was therefore causally irrelevant because it did not (help to)
cause the collision.

                                          Contributory negligence
occurs when the plaintiff suffers harm that was caused partly by the negligence of the defendant and
partly by the negligence of the plaintiff. The plaintiff’s negligence is then contributory negligence.

The legal result is that the plaintiff doesn’t recover 100 % of his compensation.
The Apportionment of Damages Act 34 of 1956 s1(1)(a) governs the situation.

The Court apportions liability between the plaintiff and the defendant. In the seat belt/crash helmet cases
X is invariably the plaintiff. If the negligent failure to wear a seat belt/helmet has helped to cause the
harm suffered, the Court would make an apportionment and part of the liability will be borne by the

                                                               MS STAROSTA’S CLASS 2011

King NO v Pearl Insurance Co Ltd 1970 (1) SA 462 (W)
``Mrs West was driving a motor cycle and failed to wear a helmet.
``She was involved in a collision and was thrown off the motor cycle and suffered head injuries.
``Mrs West, through King, brought an action against the third party insurer.
``The insurance company wanted to amend its plea by adding a further defence that Mrs West’s
damages should be reduced in accordance with s1 of the Apportionment of Damages Act
because Mrs West had negligently failed to wear her helmet.
``The Court had to decide whether this was a valid defence or not.


This line of reasoning has been severely criticised by academics (Boberg in particular):
(Take notes in class on the Criticisms)

                                                                MS STAROSTA’S CLASS 2011

King’s case is really just a case of multiple causation, that is, two or more forces/ agencies
combined to cause the harm suffered by the plaintiff. 1. Negligent driving and 2. Negligent
failure to wear a crash helmet.

``Where the harm is divisible, that is, where one wrongdoer causes some harm and a second
causes other damage, then the harm is easily apportioned between the different causes.

Example: Each wrongdoer is only liable for the separate and distinct harm that he has caused. A
breaks B’s arm. While B is on the way to the doctor C drives negligently and crashes into B and
this causes B to suffer a broken leg.

``Problems arise when two or more causes combine to cause indivisible harm.
``In such a case, the courts make an apportionment of damages in terms of the Apportionment of
Damages Act 34 of 1956, taking into account the respective degrees of fault on the part of the
two parties.

Example: Where a plaintiff is injured in a motor collision caused partly by his own fault and that
of another. Here, we cannot divide the harm. In cases like this, we apportion the damages
between the two negligent parties according to their relative degrees of fault.

``There is a rebuttable presumption in our law that harm is indivisible. Thus, once the plaintiff
proves that the defendant’s negligent and wrongful conduct has caused him to suffer harm, the
burden shifts onto the defendant to prove that he was not the sole cause of the harm, but that the
harm was caused in part by someone or something else (i.e. the plaintiff himself in a situation of
contributory negligence, or a third party). If the defendant cannot prove that some of the harm
was caused by someone else, he is liable for all of it.

``The presumption of indivisibility of harm can operate differently according to the
circumstances and what has been alleged and proved by each of the parties:

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For example, suppose the plaintiff suffers harm for which he claims damages of R30 000 and
that the plaintiff can prove that the defendant’s negligent and wrongful conduct was a cause of
the harm.

   (a) If the defendant cannot establish that the plaintiff or a third party was partly responsible
       (the defendant cannot discharge the onus which rests on him of proving that someone else
       was partly responsible) the defendant will be liable for the full R30 000. This is because
       the harm is presumed to be indivisible i.e. the defendant is presumed to have caused all of
       the harm.

   (b) Suppose that the defendant can establish that the plaintiff and himself were each 50% to
       blame for the harm. The harm is again presumed to be indivisible. The defendant has
       discharged his onus and the presumption of indivisibility now operates against the
       plaintiff. It is now presumed that the contributory negligence of the plaintiff cannot be
       restricted to a part of the harm, that is, the plaintiff is presumed to have helped cause all
       of the harm. Under the Act, the plaintiff will be awarded 50% of his loss, i.e. R 15 000.

   (c) Suppose that the defendant can establish that the plaintiff was 50% to blame for the harm
       and the plaintiff can then establish that his own negligence is 50% to blame for only 2/3
       of the harm. The plaintiff has rebutted the presumption of indivisibility. Some of the
       harm was caused only by the defendant and some of the harm was caused by both the
       plaintiff and the defendant. Since the plaintiff helped cause 2/3 of the harm, the plaintiff
       helped to cause R20 000. The defendant is therefore liable for R10 000 in respect of the
       harm which he caused alone and R10 000 of the R20 000 damage caused by both the
       plaintiff and the defendant. Total liability = R20 000.

NB: The third situation arises in the normal seat belt and crash helmet cases where the plaintiff
can show that some of the harm that he suffered would have occurred even if a seat belt/crash
helmet had been worn.

                                                                   MS STAROSTA’S CLASS 2011

Bowkers Park Komga Cooperative Ltd v SAR & H 1980 (1) SA 91 (E)
``The defendant owned a railway line which ran alongside the plaintiff’s property.
``A fire had started alongside the railway track and spread to the plaintiff’s property.
``The defendant was sued for negligently starting the fire, and he raised the defence of
contributory negligence on the basis that (a) the plaintiff had allowed vegetation, a fire hazard, to
grow on its property; (b) the plaintiff had negligently failed to clear the vegetation; and (c) the
plaintiff, after taking control of the fire, had thereafter allowed the fire to spread out of control
``The plaintiff responded, arguing that its alleged contributory negligence was irrelevant because
it had not helped cause the accident (i.e. the outbreak of the fire) from which the harm arose.

Vorster v AA Mutual Insurance Association Ltd 1982 (1) SA 145 (T)
``Was the first seat belt case with the new approach.
``The second plaintiff was a woman in the passenger seat of a car driven by her husband.
``The car had a seat belt, but the second plaintiff wasn’t wearing it.
``The car was involved in a collision with another car that was driven negligently.
``There was a collision and the woman’s injuries fell into two categories: (a) a foot injury
(R3000) and (b) there were various upper-body injuries (R1000).


They Court thus awarded her the full amount in respect of this injury. (b) there were various
upper-body injuries (R1000). The Court found that these injuries had been caused partly by the
negligent driving of the defendant that caused the collision and partly by the own negligent
failure of the plaintiff to wear her seat belt, i.e. there were two factual causes. The Court thus
apportioned the liability in respect of these injuries: 80% to the defendant and 20% to the

Goldstone J looked at whether it is negligent not to wear a seat belt, and found that in general, it
is always negligent. This conclusion is compelled by legislation (from 1977) that makes the
wearing of seat belts compulsory. He argued that we must also look at the traditional group of

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three factors: (i) the seriousness of harm; (ii) the likelihood of harm happening and (iii) the
cost/difficulty of taking precautions. He argued that (i) there can be serious harm in car
accidents; (ii) there is a real danger of accidents; and (iii) it costs nothing to wear your seat belt.
The Court also held that the driver of a car acts negligently if he drives off without checking that
passengers have their seat belts on. The wearing of seat belts is a necessary precaution, even
where the driver is very careful.
With regard to causation, Goldstone J referred to King, Bowkers Park, s 1 of the Apportionment
of Damages Act, Boberg and English case law, and found that one must look to the connection
between negligence and damage. Negligence is only relevant if it helps to cause the harm.

Union National South British Insurance Co Ltd v Vitoria 1982 (1) SA 444 (A)
``The plaintiff was a 19 year old woman in the from passenger seat of a car being driven by her
father. She was not wearing her seat belt, and in an accident suffered various facial injuries.
``The seat belt was a lap-belt, that is, it didn’t hold her upper body.
``The defendant raised the defence of contributory negligence.


The Appellate Division held that the plaintiff was negligent and agreed with Vorster that this is
causally relevant and would normally result in an apportionment of damages. The defendant had
to satisfy two requirements: (a) there was negligence on the part of the plaintiff and (b) the
defendant had to prove a causal requirement, that is, the injuries suffered by the plaintiff would
have been less than the injuries actually suffered by her. The defence thus failed because the
defendant couldn’t prove that the plaintiff would have suffered less injury if she had worn her
seat belt. She would probably have hit her head on the dashboard instead, and there was no
evidence that these injuries would have been less severe.

General Accident Versekeringsmaatskappy SA Bpk v Uijs NO 1993 (4) SA 228 (A)
The Court discussed the percentage by which the plaintiff’s damage will normally be reduced
because of a failure to wear a seat belt, and found that this will usually be 20 - 25 %. It the

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present case, the Court found that it should be 33,3 % because the plaintiff, a front seat
passenger, had deliberately refused to wear his seat belt after being told to do so by the driver.


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