Insurance Informer: "Causation - A time test?"

​​​In the recent case of Louw v Patel,1 the Supreme Court of Appeal (SCA) dismissed an appeal lodged by the appellant against the full court's decision to grant the respondent damages as a result of alleged medical negligence. The respondent was treated by the appellant for a gunshot wound to his left lower leg, which had to be amputated because of the appellant's negligence in referring him timeously for adequate care.

The hospital where the respondent initially received treatment did not have a vascular and orthopaedic surgeon available, which the appellant urgently required. The SCA, in finding a causal link between the appellant's negligence and the resultant harm, confirmed the full court's finding that the appellant failed to transfer the respondent for revascularisation treatment with the necessary urgency and that his conduct ultimately led to the amputation.

In considering negligence, the SCA considered:

  • the urgency with which the appellant attended to the respondent;
  • the urgency with which the appellant arranged for the respondent's transfer; and
  • the appellant's omission to communicate with the receiving doctor.

The question of factual causation was whether the conduct of the appellant was proven to have caused or materially contributed to the harm. The SCA found that the evidence proved that the appellant foresaw the urgent need to transfer the respondent to a hospital equipped to treat his vascular injury and the harm that would ensue in the absence of such a transfer. He was derelict in his legal duty by omitting to timeously arrange such a transfer.

Having considered the first enquiry of causation – the "but-for" test, the SCA determined that, if it were not for the appellant's negligent conduct (i.e. failing to transfer the respondent timeously), the harm would not have ensued (i.e. the amputation). The appellant failed to act as a reasonable doctor would in the circumstances and consequently the "but-for" test in respect of factual causation was proven.

On a balance of probabilities, the SCA found that the negligence, in failing to refer the appellant timeously, was directly linked to the respondent's amputation. The SCA also found that the second enquiry of causation, legal causation, which asks whether the factual link is strong enough and whether the harm is sufficiently connected to the conduct, was also satisfied.

1 Louw v Patel (245/2021) [2023] ZASCA 22 (9 March 2023).

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