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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

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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
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 conduct is a necessary condition if, but for the particular

conduct, the damage would not have occurred

 the application of the test requires a particular process of

reasoning: method of mental elimination is applied
 defendant’s conduct is hypothetically eliminated from
the set of conditions prevailing at the time when the
damage occurred
 if the damage would still have occurred, in spite of the
elimination of the conduct, the conduct was not a
necessary condition  no causal link
 if the damage would probably not have occurred when
the conduct is eliminated, the conduct was a necessary
condition  causal link

 i.o.w. to determine if X was a cause of Y, eliminate X mentally

and consider whether Y still exists or not - if Y also falls away
then a causal link exists, but if Y does not also fall away, then
no causal link exists

2.3 CRITICISM OF THE CONDITIO SINE QUA NON THEORY

by Van Rensburg in Juridiese Kousaliteit (see Neethling,

Potgieter, Visser Law of Delict: p.163 - 167)
 test is based on a clumsy, indirect process of thought that
results in a circular logic
 test fails completely in cases of so-called cumulative causation

our courts however have not advanced the conditio sine qua non
theory as an exclusive test for factual causation
 there may be exceptions where the theory does not give a
satisfactory answer
 common sense should also not be overlooked - see Siman & Co
(Pty) Ltd v Barclays National Bank Ltd
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2.4 THE CONDITIO SINE QUA NON THEORY AND CAUSATION

BY AN OMISSION

generally accepted that conditio sine qua non test also applies
case law: our courts attempted to test the causal connection by
“inserting” positive conduct in place of the omission
 method of mental substitution:
 defendant’s omission is substituted by a hypothetical
course of lawful conduct
 if the hypothetical course of lawful conduct would probably
have prevented the particular damage from occurring, then
the omission was a necessary condition  causal link
 if the hypothetical course of lawful conduct would not have
prevented the particular damage from occurring, then the
omission is not a necessary condition  no causal link

in theory it should first be determined whether the defendant

could have done anything to prevent the damage in question and
only thereafter whether reasonable positive conduct would have
prevented such consequence

see Minister of Police v Skosana

2.5 MULTIPLE CAUSES / CUMULATIVE CAUSATION

the conditio sine qua non test does not suit these situations

where two concurrent acts take place, either of which, operating

alone, would have been sufficient to produce the damage
eg: A and B independently set fires which reach C’s house
simultaneously, and the house is destroyed by fire

if one should use the conditio sine qua non test, neither would be
a necessary condition - clearly common sense dictates that this
cannot be the case

both acts are, in accordance with common sense, then seen as

contributory factual causes of the damage
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3. LEGAL CAUSATION

3.1 GENERAL

the existence of a factual link between defendant’s conduct and

the damages occurred by plaintiff is NOT sufficient to establish
the presence of a legally relevant causal connection

no legal system holds a wrongdoer liable for the endless chain of

harmful consequences which his act may have caused
generally accepted that wrongdoer’s liability must be limited

additional test is required to determine which harmful

consequences caused by the wrongdoer he should be held liable
for - i.o.w. which consequences should be imputed to him
 International Shipping Co (Pty) Ltd v Bentley p.700:
“[D]emonstration that the wrongful act was a conditio sina qua
non of the loss does not necessarily result in legal liability.
The second enquiry then arises, namely, whether the wrongful
act is linked sufficiently closely or directly to the loss for legal
liability to ensue or whether, as it is said, the loss is too
remote. This is basically a juridical problem in the solution of
which considerations of policy may play a part. This is
sometimes called ‘legal causation’.”

most cases it is quite evident that the damage should be imputed

to the wrongdoer, so it is unnecessary to examine legal causation
/ imputability of harm in express terms

in a sense legal causation is tacitly dealt with within the

framework of investigation into other elements, especially
wrongfulness and fault

legal causation is only problematic where a whole chain of

consecutive or remote consequences results from the wrongdoer’s
conduct
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Q: which criterion should be applied to determine legal

causation?

Case law:
 historically there were 2 opposing and irreconcilable points of
view:

 that defendant should never be held liable for consequences

which no reasonable person could have foreseen would
follow from his conduct
 foreseeability theory

 that an innocent victim of a delict should be allowed to

recover damage flowing from all the direct consequences of
the wrongdoer’s conduct
 direct consequences theory

 many years of uncertainty about the best approach - our

courts were either hesitant to lay down a single, inflexible
criterion or they took a neutral stance in regard to the best
test to be applied

 but the Appellate Division in S v Mokgethi in 1990 expressed

itself in favour of a flexible approach that emphasizes policy
considerations and concepts such as reasonableness, fairness
and justice and in terms of which there is no single criterion
which can be applied to all situations

 see also International Shipping Co (Pty) Ltd v Bentley 1990 (1)

SA 680 (A) and Standard Chartered Bank of Canada v
Nedperm Bank Ltd 1994 (4) SA 747 (A)

 in selecting the flexible criterion, the court did not discard the
other tests which were applied in the past - those tests could
still usefully be employed in particular sets of circumstances
as part of the flexible criterion

 these tests, however, may be used as subsidiary tests only and

not as a replacement for the flexible criterion
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3.2 THE FLEXIBLE APPROACH

S v Mokgethi per Van Heerden JA held:

- factual and legal causation must be distinguished from each

other

- wrongfulness and fault (in the normal sense of these words)

cannot function as criteria for legal causation

- that there is no single and general criterion for legal causation

which is applicable in all instances and he accordingly suggested
a flexible approach

the key question is whether there is a close enough relationship

between the wrongdoer’s conduct and its consequences for such
consequences to be imputed to the wrongdoer in the view of
policy considerations based on reasonableness, fairness and
justice

the existing theories may play a subsidiary role in determining

legal causation within the framework of this flexible approach

these theories will merely function as aids in answering the basic

question of imputability of harm

these theories should be regarded as pointers or criteria

reflecting legal policy and legal convictions as to when damage
should be imputed to a wrongdoer

the court is not bound beforehand to a single, specific theory, but

has the freedom in each case to apply the theories which serves
reasonableness and justice best in the light of the circumstances,
taking into account considerations of policy

considerations that are at issue in determining legal causation

can differ from one area of law to another – consequently the
same factual situation might lead to, for example, delictual
liability but not necessarily to, for example, criminal liability
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3.3 REASONABLE FORESEEABILITY THEORY

according to this theory, a wrongdoer is held liable only for those

factual consequences which a reasonable person in the position
of the defendant would reasonably have foreseen

it is not necessary that all the consequences of the defendant’s

conduct should have been foreseen - only the general nature of
the damage which actually occurred must have been reasonably
foreseeable

the exact extent or precise manner of occurrence need not have

been reasonably foreseeable

however the risk of harm must have been a real risk, which a
reasonable person would not have brushed aside as being far-
fetched

the reasonable foreseeability theory may also be used as a

suitable secondary test for legal causation as part of the flexible
approach
 see for example Standard Chartered Bank of Canada v
Nedperm Bank Ltd where the Appellate Division referred to the
flexible criterion, and thereafter discussed the causation issue
purely in terms of reasonable foreseeability

3.4 DIRECT CONSEQUENCES THEORY

according to this theory, the wrongdoer is liable for the direct

factual consequences of his wrongful and culpable conduct

direct consequences are those which follow in sequence from the

effect of the wrongdoer’s conduct upon existing conditions and
forces already in operation at the time, without the intervention
of any external forces which come into operation after the act has
been committed
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direct consequences need not follow the cause immediately in

time and space

it does not matter whether such direct consequences were

probable or improbable, foreseeable or unforeseeable

the direct consequences theory has not found much favour with
SA courts, but it may be used as part of the flexible approach

especially in cases with regard to the causing of personal injuries

where the wrongdoer is held liable for those consequences which
were not reasonably foreseeable, eg. in the so-called egg-skull
cases

3.5 NOVUS ACTUS INTERVENIENS

a novus actus interveniens (new intervening cause) is:

 an independent, unconnected and extraneous factor or event
 which is not foreseeable
 which causes or actively contributes to the occurrence of the
damage
 after the defendant’s original conduct has occurred

a novus actus may be brought about by the conduct of the

plaintiff, by the conduct of a third party or by natural factors - eg
wind or rain

remember: if a reasonable person would have foreseen the novus

actus, or where the intervention was caused by the wrongdoer’s
own conduct, such event is not considered to be a novus actus
interveniens

a novus actus influences the result to such an extent that the

result should not longer be imputed to the wrongdoer, although
his conduct remains a factual cause of the result
 it then indicates that the link between the conduct and the
damage is too remote
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as part of the flexible approach, the question is whether the

novus actus between the defendant’s conduct and the relevant
consequences has been such that the consequences cannot be
imputed to the defendant on the basis of policy considerations
based on reasonableness, fairness and justice

 the presence or not of a novus actus, just like the subsidiary

tests for legal causation, is therefore of secondary importance
and is merely one of a number of factors which may be
considered in answering the primary question

 see 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); Alston and Another v Marine
& Trade Insurance Co. Ltd. 1964 (4) SA 112 (W)

3.6 ADEQUATE CAUSATION

according to this theory, a consequence is imputed to the

wrongdoer if the consequence is “adequately” connected to the
conduct  if human experience indicates that, in the normal
course of events, the conduct has the tendency to produce that
type of consequence

where the consequence is abnormal, or does not usually follow

that type of conduct, the link between the conduct and the
consequence is not adequate

when assessing above the court is not limited to the concept of

foreseeability, for unforeseeable results may be a normal /
adequate consequences

all knowledge available to the court must be considered

 even knowledge that was not available to defendant at the time
 also any special knowledge which defendant might have had at
the time

- this theory has been recognized in decisions in the field of

criminal law
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3.7 “EGG-SKULL” CASES (TALEM QUALEM RULE)

these cases arise where plaintiff, because of one or other

physical, psychological or financial weakness, suffers more
serious damage that would have been the case if he did not suffer
from such a weakness

talem qualem rule: “you must take your victim as you find him”
 wrongdoer should be liable for the harm which may be
ascribed to the existence of the weakness

in terms of the flexible approach to legal causation, the fact that

plaintiff is an “egg-skull” case, must be taken into account with
all the other factors of the case, to decide whether the damage
should be reasonably imputed to defendant
 Smit v Abrahams 1994 (4) SA 1 (A) p. 14: The fact that the
plaintiff was an egg-skull case was “just another fact to be
considered, with all other facts of each particular case, when
applying the ‘dominant elastic criterion’, according to which
[on the basis of reasonableness, fairness and justice] the
imputability of the particular damage to the defendant must
be determined.”

see Wilson v Birt (Pty) Ltd 1963 (2) SA 508 (D)

 physical weakness

- see Gibson v Berkowitz and Another [1997] 1 All SA 99 (W)

 emotional and psychological weakness

- see Smit v Abrahams 1994 (4) SA 1 (A)

 financial weakness