Factual Causation

Study Unit 4.1

20 MARCH 2023 – ADV KOLA

Outline

• Overview: factual causation

• Meaning of “legal causation”
• Role of legal causation in determining delictual liability
• Difference between factual causation and legal
causation (continued)
• Test for legal causation
• Summary
Overview: Factual causation (1)

• Introduction: meaning of causation?

• Difference between factual and legal causation
• Test for determining factual causation
• How does this test work?
Case Study:

QUESTION:

Will Bongi be able to hold

his employer (the
construction company)
liable for all the harm/ loss
that he has suffered, i.e. his
broken foot as well as
the head injuries?
 Introduction: meaning of “causation”?

• Conduct causes harm – causal nexus (connection or

link) between conduct and harm = element of a delict

Conduct (act) by
wrongdoer
Conduct causes harm
= “causal link” between
conduct and harm
Plaintiff suffers
harm/ loss
Introduction

• Distinguish between
factual causation and
legal causation

• Factual causation:
conduct causes series of
possible harmful events
• Question here: establish
whether specific harmful
consequence is part of this
series of events – is
conduct linked to specific
harmful consequence?
Comparison factual and legal causation

FACTUAL LEGAL
causation causation

Factual causation:    Legal causation:

if determined that determine for which of
defendant’s conduct is these (connected)
linked to harmful harmful consequences
flowing from conduct
consequence (harm should defendant be
suffered by plaintiff) held liable - limits
liability
Test to Determine
Factual Causation
Factual causation

• Generally used: conditio sine qua non [CSQN] test -

“necessary precondition”
 defendant’s conduct must have been necessary for
plaintiff’s harm to occur
• Also known as “but for” test
• Ask: “what would have happened but for the wrongful
conduct of the defendant”
• Or: “what would have happened if it wasn’t for the
defendant’s conduct”
 Employer
Stack of
instructs
bricks Bongi to
becomes continue
unstable work
Bongi’s
foot is
injured

Harmful
Case Study: consequence:
Bongi’s head
injuries Bongi is
taken to
hospital by
ambulance
Accident
happens Ambulance
driver
negligent
Distinguish:

Application of CSQN Application of CSQN

test in cases of test in cases of failure
positive conduct to act (omissio)
(commissio)
 Conditio sine qua non - positive act
Question: Was the employer’s conduct the factual cause
of the head injuries sustained in ambulance accident?

Cause X?
Consequence Y?
(Bongi instructed to
(serious head injuries
work under unsafe
suffered by Bongi)
conditions)

• What happens if Cause X disappears?

• If Consequence Y still exists: X is not cause of Y
• If Y also disappears: X is cause of Y  employer’s
instructions = factual cause of serious head injuries
Conditio sine qua non - omissio

• CSQN in case of an omissio:

o Think hypothetical positive conduct into set of facts, ask
whether harm would still have followed
o If positive conduct would have avoided harm, then omissio
was the cause of harmful consequence
o Illustrated in: Minister of Police v Skosana 1977 1 SA 31 (A)

** Facts: see discussion in Loubser & Midgley

p. 105/ headnote of judgment itself
 Conditio sine qua non - omissio

Cause X (omission):
Police failed to take
injured Mr Skosana to
hospital in time Consequence Y:
Mr Skosana arrived
at hospital too late
for medical
treatment and
Replace with passed away
positive conduct:
Police take injured Mr
Skosana to hospital
immediately:

• What happens if Cause X (omission) is replaced by

positive conduct?
• If positive conduct would avoid harm: omission is
cause of harm
Overview: Factual causation (2)

• Meaning of "caused" and "materially contributed to"'

• Critique of “conditio sine qua non” test
• Appropriate test for factual causation
• Summary of factual causation
“Caused” or “materially contributed to”

• Minister of Police v Skosana: Corbett JA explained:

“Causation in the law of delict gives rise to two rather distinct

problems. The first is a factual one and relates to the
question as to whether the negligent act or omission in
question caused or materially contributed to… the harm
giving rise to the claim.”

 Caused the harm (Mr Skosana’s death)

 Materially contributed to the harm (Mr Skosana’s death)

“Caused” or “materially contributed to”

The following video clip illustrates the distinction between

“causing” harm (basic application of “but for” test) and
“materially contributing to” the harm.
o Note: reference to “substantial factor” in video = the same
as “materially contributed” in SA law

Video source: www.uslawessentials.com

[May be accessed at https://www.youtube.com/watch?v=P9TShT3xn4Q]
 Critique of
conditio sine qua non test
Critique: conditio sine qua non approach
• Although courts use the CSQN test, it is not perfect

• Three main points of critique:

• Process of reasoning is clumsy and
“roundabout” For an explanation of
what each of these
points entails, please
• Confirms causal link that has already been read Loubser and
determined Midgley pp. 115-117.

• Does not work in cases of cumulative

causation
Critique: conditio sine qua non A

• Cumulative causation:
A and B set fire to C's house
independently of each other; all of C's
possessions are destroyed in the fire
• CQSN not effective to determine the
B
factual cause of C's loss:
o If “think away” A's conduct, loss would
still happen – A therefore not cause of
loss
o Same goes for B's conduct
o Result unsatisfactory
 Alternatives to
conditio sine qua non test
Alternatives to conditio sine qua non?

• Number of alternatives have been proposed:

o Material contribution
o “Common sense”
o Human experience and knowledge
o Increasing risk and creating opportunities for
occurrence of harm

For a discussion of what each of these alternatives entails,

please read Loubser and Midgley pp. 112-115.
Appropriate test for factual causation?

CSQN still preferred test • Starting point: applied as in Skosana case

– did conduct cause harm or materially
for factual causation contribute to harm?
• Outcome must not go against common
Outcome? sense, sense of justice
• Most cases no problems

• Where outcome not satisfactory: consider

Outcome not satisfactory? alternative methods

• But must apply flexibly  reach just and

How to apply test? equitable result under circumstances (Lee
v Minister of Correctional Services)

➢ Lee v Minister of Correctional Services 2013 2 SA 144

(CC)
 Factual Causation

Factual causal link between wrongdoer’s

conduct and harm suffered by plaintiff?

No Yes

Investigate legal
Defendant not
causation  go on to
liable in delict –
second component of
plaintiff’s claim fails
causation
 Study Unit 4.1: Learning Outcomes

After studying the materials and completing the

activities in this study section you should be able to:

MOD
Explain what is meant by "factual causation";

Explain how factual causation is determined, with

specific reference to the conditio sine qua non test;

Describe how this test operates in cases of both

positive conduct and omissions;

Briefly outline the critique of the conditio sine qua

non test; and

Identify alternatives to the conditio sine qua non

approach.