59
PART 5 : CAUSATION
Neethling, Potgieter, Visser: Law of Delict, p 159 – 193
Minister of Police v Skosana 1977 (1) SA 31 (A)
S v Mokgethi en Andere 1990 (1) SA 32 (A)
Meevis v Sheriff, Pretoria East 1999 (2) SA 389 (T)
Mukheiber v Raath and Another 1999 (3) SA 1065 (SCA)
Road Accident Fund v Russell 2001 (2) SA 34 (SCA)
Gibson v Berkowitz and Another [1997] 1 All SA 99 (W)
Groenewald v Groenewald [1998] 2 All SA 335 (A)
Minister of Safety & Security v Hamilton 2004 (2) SA 216 (SCA)
Van der Spuy v Minister of Correctional Services 2004 (2) SA 463
(SE)
1. GENERAL
- causal link between defendant’s conduct and plaintiff’s damage
is requirement for delict
- person only liable for damage caused by him
- causal link? - question of fact which must be answered in light of
available evidence of each case
- many theories of causation have been developed to determine
causal link
Boberg: “morass of controversy that surrounds this element of
liability”
- 2 questions:
whether any factual relationship exists between defendant’s
conduct and damages sustained by plaintiff
so-called factual causation
whether defendant should be held legally responsible for the
damages factually caused by his conduct
so-called legal causation
see Minister of Police v Skosana 34 - 35
, 60
2. FACTUAL CAUSATION
2.1 INTRODUCTION
- relates to question whether factual link exists between conduct
and damage
factual causation involves the question whether the damage
was the result of the defendant’s conduct “in accordance with
‘science’ or ‘objective’ notions of physical sequence” (Fleming:
The Law of Torts 179)
- how must this factual causal link be determined?
most cases not difficult to decide whether causal link exists
only difficult to formulate scientifically acceptable theory for
factual causation
most writers and Appellate Division are in favour of conditio
sine qua non theory
see Meevis v Sheriff, Pretoria East 1999 (2) SA 389 (T) p. 396
2.2 CONDITIO SINE QUA NON THEORY
- also known as “but for” test
- how does the test work?
International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680
p.700: “In order to apply this test one must make a
hypothetical enquiry as to what probably would have
happened but for the wrongful conduct of the defendant. This
enquiry may involve the mental elimination of the wrongful
conduct and the substitution of a hypothetical course of lawful
conduct and the posing of the question as to whether upon
such an hypothesis plaintiff’s loss would have ensued or not.
If it would in any event have ensued, then the wrongful
conduct was not a cause of the plaintiff’s loss; aliter, if it would
not so have ensued.”
conduct can only be a factual cause of damage if it was a
necessary condition for the existence of particular damage
if the conduct was a conditio sine qua non of the damage
PART 5 : CAUSATION
Neethling, Potgieter, Visser: Law of Delict, p 159 – 193
Minister of Police v Skosana 1977 (1) SA 31 (A)
S v Mokgethi en Andere 1990 (1) SA 32 (A)
Meevis v Sheriff, Pretoria East 1999 (2) SA 389 (T)
Mukheiber v Raath and Another 1999 (3) SA 1065 (SCA)
Road Accident Fund v Russell 2001 (2) SA 34 (SCA)
Gibson v Berkowitz and Another [1997] 1 All SA 99 (W)
Groenewald v Groenewald [1998] 2 All SA 335 (A)
Minister of Safety & Security v Hamilton 2004 (2) SA 216 (SCA)
Van der Spuy v Minister of Correctional Services 2004 (2) SA 463
(SE)
1. GENERAL
- causal link between defendant’s conduct and plaintiff’s damage
is requirement for delict
- person only liable for damage caused by him
- causal link? - question of fact which must be answered in light of
available evidence of each case
- many theories of causation have been developed to determine
causal link
Boberg: “morass of controversy that surrounds this element of
liability”
- 2 questions:
whether any factual relationship exists between defendant’s
conduct and damages sustained by plaintiff
so-called factual causation
whether defendant should be held legally responsible for the
damages factually caused by his conduct
so-called legal causation
see Minister of Police v Skosana 34 - 35
, 60
2. FACTUAL CAUSATION
2.1 INTRODUCTION
- relates to question whether factual link exists between conduct
and damage
factual causation involves the question whether the damage
was the result of the defendant’s conduct “in accordance with
‘science’ or ‘objective’ notions of physical sequence” (Fleming:
The Law of Torts 179)
- how must this factual causal link be determined?
most cases not difficult to decide whether causal link exists
only difficult to formulate scientifically acceptable theory for
factual causation
most writers and Appellate Division are in favour of conditio
sine qua non theory
see Meevis v Sheriff, Pretoria East 1999 (2) SA 389 (T) p. 396
2.2 CONDITIO SINE QUA NON THEORY
- also known as “but for” test
- how does the test work?
International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680
p.700: “In order to apply this test one must make a
hypothetical enquiry as to what probably would have
happened but for the wrongful conduct of the defendant. This
enquiry may involve the mental elimination of the wrongful
conduct and the substitution of a hypothetical course of lawful
conduct and the posing of the question as to whether upon
such an hypothesis plaintiff’s loss would have ensued or not.
If it would in any event have ensued, then the wrongful
conduct was not a cause of the plaintiff’s loss; aliter, if it would
not so have ensued.”
conduct can only be a factual cause of damage if it was a
necessary condition for the existence of particular damage
if the conduct was a conditio sine qua non of the damage
