The Constitutional Court (CC) recently overturned a ruling of the Supreme Court of Appeal (SCA) in the landmark matter of Dudley Lee v the Minister of Correctional Services.

The case not only highlights the State’s responsibility for ensuring that the constitutional rights of detainees are maintained and safeguarded, but also brings important considerations regarding causation to the fore. Such considerations may cast the net wider when it comes to causation and establishing legal liability, which in itself may prove costly for insurers.

Background

The plaintiff, Dudley Lee, was arrested in 2000 on charges of, among other things, counterfeiting, fraud and money laundering. While he was detained in prison for more than four years, the plaintiff allegedly contracted pulmonary tuberculosis (TB).

After his release from Pollsmoor prison, the plaintiff sued the Minister of Correctional Services for compensation as a result of him contracting TB. The High Court found in the plaintiff's favour and held that the defendant was liable for damages as result of the plaintiff's contraction of TB.¹

The defendant appealed to the SCA², which upheld the appeal on the basis that the plaintiff was unable to establish a causal link between him contracting TB and the specific negligent conduct on the part of the prison authorities. The Court noted that it cannot be found that "but-for" the alleged systemic omission by the prison authorities to safeguard the constitutional rights of detainees, the plaintiff probably would not have contracted the disease.

The Constitutional Court³

The plaintiff appealed to the CC on the following grounds:

• the SCA was wrong "in holding that causation had not been established";
• the SCA failed to follow the approach in Minister of Safety and Security v Van Duivenboden⁴, wherein it was decided that the "but-for" test should be applied flexibly; and
• if the "but-for" test is applied correctly and the plaintiff remains without relief, the test should be developed in accordance with the spirit, purport and objects of the Bill of Rights.

Majority judgment

In the majority judgment by Nkabinde J, it was found that the relevant question was whether the prison authorities' negligent omission caused the plaintiff to become infected with TB.

In this instance, Nkabinde J examined the "but-for" test and found that our law allows a flexible approach to the test and that recourse may sometimes be had to "empirical or common-sense view of causation"⁵.

The Court accordingly held that the SCA erred in that it was not necessary to substitute reasonable alternative measures to determine factual causation, which is allowed by the more flexible approach. If the circumstance required the use of a reasonable alternative substitution, our law does not require a plaintiff to adduce further evidence to prove, on a balance of probabilities, what the lawful, non-negligent conduct of the defendant should have been.⁶

While Nkabinde J found that South African law recognises that the "but-for" test should be applied flexibly⁷, the learned Judge was of the view that it was not necessary to develop South African law in accordance with the casuistic approach because such a development, especially in relation to omission cases, may lead to limitless liability.

Minority judgment

Disagreeing with the majority's conclusions, the minority per Cameron J felt that it cannot be said that "but-for" the negligence of the prison authorities, the plaintiff would not have contracted TB. The only conclusion to be made, according to Cameron J, was that the negligent conduct of the prison authorities increased the plaintiff's overall risk to contract TB.

In the minority's view, South African law should be developed to compensate a claimant who was negligently exposed to risk of harm and suffers harm as a result of that risk regardless of who was the cause of such exposure.

Cameron J's arguments were based on the United Kingdom case of Fairchild v Glenhaven Funeral Services Ltd and Others⁸ (the Fairchild case). The claimants therein were unable to prove that "but-for" the negligence of any specified employer, the injury would probably not have occurred.

The Court in the Fairchild case sought recourse in one of its previous decisions of McGhee v National Coal Board⁹, wherein it was held that a claim must succeed where the employers breached a duty that "materially increased the risk" of an injury, and the claimant suffered the injury even if the claimant could not prove that the main cause of his injury was the omission of his employers.

The Fairchild case was later refined in Barker v Corus UK Ltd¹⁰, which concerned death as a result of mesothelioma (a rare cancer), and wherein the House of Lords held that partial liability will result where a relative increase in risk is proved.¹¹  More importantly, the exception to the rules of causation was confined to 'single agent' cases as opposed to those where multiple differing causes may have given rise to the condition.

According to Cameron J it remains clear that in some claims the traditional common law "but-for" test is an over-blunt and inadequate tool for securing constitutional tailored justice; especially where negligence is proved but cannot be pinpointed to the source of the injury.

In the case of the plaintiff, the relevant questions according to the minority judgment should have been:

• would reasonable measures have reduced the overall risk of infection? and
• should the extent of risk to which the defendant's negligent conduct exposed the claimant, lead to recovery for the injury that was suffered?

In conclusion, Cameron J found that the SCA was obliged to consider developing the common law after concluding that the High Court's judgment in the plaintiff's favour was unsustainable on the basis of the traditional "but-for" test for causation.

Conclusion

Having regard to Cameron's views, the question of developing the common law, more specifically with regard to causation, is an interesting one that will no doubt be further explored in pending cases.

Notes:

1 Lee v Minister of Correctional Services 2011 (6) SA 564 (WCC)
2 Minister of Correctional Services v Lee 2012 (3) SA 617 (SCA)
3 Lee v Minister of Correctional Services (CCT 20/12) [2012] ZACC 30
4 Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA)
5 Kakamas Bestuursraad v Louw 1960 (2) SA 202 (A) (Kakamas) at 220B-C.
6 Id 5 at para 44
7 The use of flexibility in the "but-for" test was reaffirmed in the cases of Van Duivenboden and in Minister of Finance v Gore NO 2007 (1) SA 111 (SCA).
8 Fairchild v Glenhaven Funeral Services Ltd and Others; Fox v Spousal (Midlands) Ltd; Matthews v Associated Portland Cement Manufacturers (1978) Ltd and Others [2002] UKHL 22, [2003] ` AC32
9 [1973] 1 WLR 1, [1972] 3 All ER 1008 (HL)
10 Barker v Corus UK Ltd; Murray v British Shipbuilders (Hydrodynamics) Ltd and Others; Patterson v Smiths Dock Ltd and Another [2006] UKHL 20, [2006] 2 WLR 1027
11 Immediate effect of apportionment under Baker id was reversed in England by section 3 of the Compensation Act 2006, but only in relation to mesothelioma cases.

By Thomas Lawrenson, associate, Webber Wentzel.