Rules of legal causation PDF

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Notes by Adv B Njoko...

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TOPIC 7 PART 3 Rules of legal causation

Talem qualem rule    

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A.k.a thin skull rule or egg-skull rule. The victim suffers more serious harm than the perpetrator intended, anticipated, or foresaw. The victim suffers more serious harm than that which is traceable to the conduct of the defendant. Reason why a victim may suffer a more serious harm than the defendant foresaw is because of a prior physical/ psychological/financial weakness which the defendant may not have known about. E.g. the defendant slaps the plaintiff and the defendant suffers a heart attack because their heart was very fragile or the defendant does somethings which causes that the victim is wheelchair bound and the victim suffers from depression and because they cannot deal with being confined to a wheelchair, he or she commits suicide. This harm is linked to the conduct of the perpetrator. The defendant will be held liable even though the suicide is directly traceable to the conduct of the defendant. In these circumstances, it would be just, fair, and reasonable to impose liability on the defendant. You must take the victim as they are. You must take the victim with all their weaknesses. Regardless of whether they are physical/ psychological/financial. Liability will arise even though the harm cannot be directly linked to the conduct of the defendant.

Smit v Leach Brain and Co Ltd (English case)  

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The plaintiff’s deceased husband had been struck on the lip by a piece of metal causing a burn. The burn became cancer and a.a.r the husband died. Medical evidence provided that the deceased had suffered from a prior physical condition which made susceptible to cancer. The court held that the thin skull rule applied here and that the deceased’s employer who have failed to provide him with protective clothing was liable to the wife in damages.

Smit v Abrahams

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This rule goes together with the reasonable foreseeability test, in that the defendant is held liable for foreseeable harm. Therefore, when someone suffers more harm than foreseeable, it relates to what is said under that test, it does not matter whether a defendant foresaw the extend of a harm of not.

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The defendant is held liable for unforeseeable additional harm suffered by the plaintiff, a.a.r.o a pre-existing physical condition which renders him more vulnerable to injury. It is submitted that the rule pertains to the extent of the harm suffered by the plaintiff, which need not be foreseeable and therefore co-exist peacefully with the foreseeability test.

Novus Actus Interveniens (used as a test also) 

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Independent, unconnected factor or event which is not foreseeable and actively contributes to the occurrence of harm after the defendant’s original conduct has occurred. Nothing to do with the conduct of the defendant. When the occurrence of the harm is not independent, the defendant cannot rely on the NAI. If it is established that it is foreseeable, the defendant cannot rely on the NAI. Requirements Must be independent or unconnected factor or event Must not be foreseeable Must actively contributed to the occurrence of a harm. Must have occurred after the defendant acted.

NAI continued    

The scope of liability is limited whereas the thin skull rule broadens the scope. Eliminates harm that is not closely related to the conduct of the defendant. Presence of intervening act = breaks causal link between the defendant’s conduct and the pursuing harm. The intervening act can be the conduct of the victim themselves, or of another person or due to other factors such as acts of nature.

Mafisa v Parity       

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The plaintiff suffered a fracture leg a.a.r.o a motor vehicle accident. The plaintiff had to put in a steel plate. They will be released after the bone set properly. The plaintiff was discharged and received crutches to walk and the leg was in cast. While waiting on a smooth floor, the plaintiff fell because the crutches did not have the rubber tips at the bottom. The plaintiff fractured his leg again which required a second operation on his leg. When the plaintiff sued the insurer of the motor vehicle, the court found that the second incident constituted a new intervening cause, because it was not reasonably foreseeable that the plaintiff, who had been warned of the dangers, would recklessly attempt to walk on a slippery floor. The liability of the insurer was limited only to the consequences that arose prior to the second event. Did not have to pay for the second operation and can only be held liable for the consequences flowing from the accident.

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The plaintiff walking on slippery floor with crutches without rubber at the bottom constituted an intervening act, therefore breaking the causal link between the fractured leg and the defendant’s conduct.

What is important in this case 

Element of foreseeability because if the defendant could foresee that the plaintiff that had been warned of the dangers would also recklessly conduct themselves in a manner that would cause them more harm then they would not be able to rely on the NAI. They did not foresee that the plaintiff would have been warned of the dangers would recklessly conduct themselves in this manner, thus the NAI worked here.

RAF v Russel    

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The wife of the deceased claimed loss of support o.b.o the children. The deceased committed suicide after sustaining serious injuries. The defendant claimed that the suicide was a NAI. However, the court found that it is depression that caused him to take his own life due to brain damage, that he had suffered a.a.r.o the accident. The suicide was not unrelated to the accident. The suicide was a direct consequence of the injury, it did not constitute a NAI.

What is important in this case? 

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It highlights the elements of a NAI because here the court was saying that the depression which caused him to take his own life was due to brain damage which he had suffered a.a.r.o the accident. I.o.w. the suicide was not an independent, unconnected event. The suicide was connected to the brain damage which was connected to the accident. Thus, it was arguable that the suicide was a direct consequence of the injuries sustained in the accident. Premier of the WC v Loots Sterilisation problem which led to Loots falling pregnant. She was offered an opportunity to abort the baby but declined for religious reasons. After complications during pregnancy, she lost the baby and suffered personal brain damage which led to her being blind. She was unable to walk and talk and suffer from dementia. The WC gov argued that her decision, not to abort the baby function as a NAI. The court held that if the decision functioned as a NAI, it would have to be an unreasonable NAI and that reasonable conduct cannot absolve the wrongdoer of liability. I.o.w. Mrs. Loot’s decision would only operate as a NAI if it was unreasonable in the circumstances. The court held that if the decision was considered reasonable, the WC gov would be responsible and must compensate her.

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The court found that her decision was reasonable. Her pregnancy appeared to be normal and healthy and there had been no indication that if she continued with her pregnancy, she would endanger herself or her child. So, keeping the baby in the circumstances was a reasonable decision. If she was warned and did not abort the baby, the court, in those instances, would see that the keeping of the baby as unreasonable. The court spoke about the element of foreseeability. The court held that while the specific consequence Mrs. Loot have suffered was not foreseeable, it was foreseeable that any pregnancy would have complications. Thus, harm of a general kind, has been foreseeable. If the WC gov could foresee general harm, they cannot rely on the decision of not aborting as a NAI. The decision not to abort and the complications of the pregnancy could not function as a NAI breaking the chain of causation between the negligent sterilisation and the harm Mrs. Loots has suffered. It could not work as an intervening act because the pregnancy in itself was basically not an independent factor because it was linked to the botched sterilisation and it is an event which was not foreseeable because complications linked to pregnancy are very much foreseeable. CONCLUSION When speaking about the criterion of legal causation, think of all test and place it under the umbrella judgement of S v Mokgheti which includes the public policy consideration of fairness, justice and reasonableness.

Adequate Cause test

Direct Consequence a.k.a Proximaty test

S v Mokgheti flexible criterion Reasonableness, justice and fairnes (general test for legal causation

Reasonable foreseeability test

Intent test...