TOPIC 5: Legal Causation

Law of Delict (DEL201)

Dr Desmond Oriakhogba

Table of content

1. Introduction......................................................................................................................... 2
2. Test for legal causation.........................................................................................................2
a. General test – the flexible (elastic or supple) approach...................................................3
b. Subsidiary test..................................................................................................................3
3. Related concepts.................................................................................................................. 4
a. The talem qualem (or thin skull or egg shell skull) rule....................................................4
b. Novus actus interveniens.................................................................................................4
4. Case Summary......................................................................................................................4

1. Introduction
In the last topic, we learned that to establish delictual liability the plaintiff must show a
causal link between the defendant’s conduct and the damage/loss/injury suffered by the
plaintiff. This follows the “but for” or conditio sine qua non test. However, that is not the
end of the matter. There are two elements of causation (the factual element, which we have
already discussed) and the legal or normative element (which is the second element). For
legal causation to be established, the court must be satisfied that, from a legal stand point,
there is a close and direct, not just remote, link between the defendant’s conduct and the
harm/loss/injury suffered by the plaintiff. This is what is known as legal causation.

Put differently, after establishing factual causation (discussed under topic 4), the court must
be further satisfied that the defendant’s conduct is not remotely linked to the plaintiff’s loss:
the defendant’s conduct must be closely and directly linked to the harm. The determination
of this is a juridical or judicial exercise which is based on policy considerations of
reasonableness, fairness and justice. Legal causation is instrumental to limit the liability of
defendant only to those consequences that are sufficiently linked to their conducts. Legal
causation is a normative inquiry that involves considering different factors and policy issues
on a case-by-case basis. The tests for determining legal causation are discussed in part 2
below.

See Judith Hawarden v ENS Inc. [2023] 1 All SA 675 (GJ); International Shipping Co (Pty) Ltd v
Bentley 1999 (1) SA 680 (A); Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd
2009 (2) SA 150 (SCA); Groenewald v Groenewald 1998 (2) SA 1106 (A); Road Accident Fund
v Russell 2001 (2) SA 34 (SCA); Smit v Abrahams 1994 (4) SA 1 (A)

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2. Test for legal causation
We discuss below the following tests for determining legal causation.

a. General test – the flexible (elastic or supple) approach

b. Subsidiary tests:

 Proximate cause or direct consequence test

 Reasonable foreseeability test

 Adequate cause test

 Intent

a. General test – the flexible (elastic or supple) approach

It is not entirely clear what the content of the test is. However, this test involves a
determination of the circumstances of the case and policy consideration of reasonableness,
fairness and justice in determining whether the conduct of a defendant is sufficiently,
closely and directly linked to the harm suffered by the plaintiff. The flexible test does not
necessarily supersede the subsidiary tests (discussed below). Also, in applying the flexible
test, the court does not dogmatically and exclusively rely on a single subsidiary test as a
measure of limiting the defendant’s liability. Instead, when determining legal causation in a
given case, the court applies all or a combination of some of the tests in a flexible manner
that accords with reasonableness, fairness and justice. See International Shipping Co (Pty)
Ltd v Bentley (supra); S v Daniels 1983 (3) SA 275 (A); S v Mokgethi 1990 (1) SA 32 (A).

b. Subsidiary test

 Proximate cause or direct consequence test: this test applies to place lability on the
defendant if the harm suffered by the plaintiff is directly traceable to the wrongful
conduct of the defendant, so long as the causal link is not broken by any intervening
or unrelated act. This test applies the element of direct physical consequence and
the concept of the foreseeable plaintiff (that is, persons that are reasonably
foreseeable as being in the category of people that may suffer harm from the
defendant’s conduct). See Thandani v Minister of Law and Order 1991 (1) SA 702 (E);
Frankel & Co v Cadle (1915) 36 NPD 173.

 Reasonable foreseeability test: this test determines legal causation by addressing the
question of whether the defendant should reasonably have foreseen the
consequence of their action. If the issue is resolved in the positive then there is legal
causation. If otherwise, there is none. It is not necessary for defendant to foresee a
specific kind of harm or that the harm would occur in a particular way. What is
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 required is that the defendant should have foreseen a general type of harm. See
Smit v Abrahams 1994 (4) SA 1 (A); Overseas Tankship v Morts Docks (1961) AC 388.

 Adequate cause test: this test determines legal causation by considering whether the
plaintiff’s harm is a consequence that is adequately connected to the defendant’s
conduct. This is further determined by considering whether the defendant’s conduct
has the tendency to bring about the harm. In other words, according to human
experience, would the harm follow as a consequence of the defendant’s conduct in
the normal course of events? The test has its roots in the Netherlands and Germany.
It has not been persistently used under South African law. See S v Daniels (supra).

 Intent: the intention of the defendant to bring about a certain consequence, coupled
with absence of intervening or unrelated or independent occurrence contributing to
the loss, may show legal causation in certain circumstances. See Groenewald v
Groenewald (supra); Brown v Hoffman 1977 (2) 556 (NC).

3. Related concepts
In this part, we discussed the related concepts: the talem qualem (or thin skull or egg shell
skull) rule and novus actus interveniens.

a. The talem qualem (or thin skull or egg shell skull) rule
Owing to some physical, psychological or financial weakness of a plaintiff, which a defendant
is unaware off, the plaintiff may suffer some harm that is beyond the reasonable
foreseeability of the defendant. Under the talem qualem rule, the defendant will still be
liable for that harm which occurred because of the plaintiff’s weakness so long as the harm
is a consequence of the defendant’s conduct. The defendant cannot seek to escape liability
by arguing that the plaintiff would not have suffered so much harm if they were not weak.
The defendant must take their victim as they find them. See Smit v Abrahams (supra); Smith
v Leech and Co Ltd (1962) 2 QB 405.

b. Novus actus interveniens

This is “an independent, unconnected and extraneous factor or event which is not
foreseeable and which actively contributes to the occurrence of harm after the defendant’s
original conduct has occurred” (Van der Walt and Midgley, Principles of Delict (2016) para
184. The courts determine novus actus interveniens by applying the flexible test. However, if
the event should have been reasonably foreseeable as a likely consequence of the
defendant’s conduct, it cannot be regarded as novus actus interveniens. See Mafesa v Parity
(1968) 2 SA 603 (O); RAF v Russell 2001 (2) SA 34 (SCA); Premier of Western Cape Province v
Loots NO 2011 JDR 0250 (SCA).

4. Case Summary
JUDITH HAWARDEN v ENS Inc. [2023] 1 All SA 675 (GJ)
(https://www.saflii.org/za/cases/ZAGPJHC/2023/14.html)

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Fact
The judgment deals with the vexed question of whether or not to impose liability for pure economic
loss sustained by the plaintiff who fell victim to cyber- crime through business email compromise
(‘BEC’) as a result of the defendant’s negligent omission to forewarn the plaintiff of the known risks
of BEC and to take the necessary safety precautions that are designed to safeguard against the risk
of harm occasioned by BEC from eventuating.

The plaintiff purchased an immovable property from a third party seller who appointed the
defendant, ENS attorneys, as the conveyancer in the sale transaction. The plaintiff paid the deposit
required under the sale agreement and thereafter chose to pay the balance of the purchase price of
R5.5 million by way of electronic transfer of funds directly into the defendant’s trust account (‘the
ENS account’) for the benefit of the seller pending registration of transfer.

The plaintiff made an electronic payment of the amount of R5.5 million into what she believed was
the ENS account, details of which had been emailed to her by a conveyancing secretary in the
employ of the defendant. The ENS account details were set out in a pdf attachment under cover of
an email. Unbeknown to the plaintiff, her email account was hacked and the email containing the
ENS account details was intercepted by an unknown fraudster and altered to reflect the fraudster’s
bank account details, resulting in the funds electronically transferred by the plaintiff being deposited
in the fraudster’s bank account as opposed to the ENS account.

Notwithstanding the discovery of the fraud, the defendant called upon the plaintiff to make
payment of the balance of the purchase price, which had discernibly not been received by the
former as required under the sale transaction. The parties were unable to resolve the impasse that
followed, resulting in the plaintiff instituting action against the defendant for the loss of R5.5 million
sustained by her as a result of the cyber fraud.

The evidence at trial established that the defendant was aware of the risks of BEC prior to the
fraudulent incident and that it had failed to warn the plaintiff of the known risks of email and pdf
manipulation or of precautions that could be taken against BEC prior to the plaintiff effecting the
electronic payment. It was also not in contention that BEC attacks are rife, especially in the
conveyancing industry. Further, the defendant had control over the way in which it conveyed its
bank account details to the plaintiff - in an unprotected pdf attachment to an email it transmitted to
the plaintiff – whilst technically safe measures, amongst others, multi-channel verification (in-person
or telephonic confirmation of bank details) were available to be employed by it to avert cyber fraud.

Decision
The High Court (per Mudau J) held the following:

 that a duty of care exists between a purchaser in a conveyancing transaction and the
conveyancing attorneys handling the transaction to prevent harm resulting from the
conveyancer’s failure to warn the depositor of the dangers of cyber hacking and spoofing of
emails or of the fact that pdf attachments to emails containing sensitive information such as
bank account details are not invulnerable to BEC.

 that as an experienced conveyancer, the defendant understood the risks inherent in

conveyancing transactions by virtue of its own prior knowledge of the dangers of BEC. The
risk of BEC was thus foreseeable and the defendant was under a duty to guard against the
harm eventuating. Its omission to do so was negligent in the circumstances.

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  that the defendant was the proximate cause of the plaintiff’s loss in that it provided its own
bank account details and was responsible for their accuracy and for the safety of their
transmission. In failing to safeguard the safety of their transmission, the defendant acted
wrongfully.

 that as regards the element of wrongfulness, the plaintiff’s loss in a case of this nature is
both quantifiable and determinate and the risk of indeterminate liability as a policy
consideration that militates against the recognition of liability for pure economic loss is thus
averted.

 that factual causation was established in that but for the negligent transmission by the
defendant of its bank account details including its failure to inform the plaintiff, as depositor,
of the dangers of BEC, the plaintiff would not have suffered the loss. Legal causation was
likewise established as the negligent conduct of the defendant was linked sufficiently closely
to the loss suffered by the plaintiff for legal liability to ensue, given that the loss was
reasonably foreseeable under the circumstances.