Brief Summary

Delict — Causation — Death resulting from motor vehicle accident — Plaintiffs claiming for loss of support and funeral expenses following the death of the deceased, who sustained injuries in a collision with an unidentified vehicle — Defendant admitting liability but contending that inadequate medical treatment constituted a novus actus interveniens breaking the causal link — Court finding that the death was a direct result of the injuries sustained in the accident, and that the alleged substandard medical care did not constitute a new cause of death — Defendant's argument of intervening cause rejected due to failure to plead special defence formally.

Comprehensive Summary

Summary of Judgment

1. Introduction

The proceedings were a delictual claim against the Road Accident Fund for loss of support and funeral expenses arising from the death of X[...] G[...] G[...] (“the deceased”), who had been injured in a motor vehicle collision involving an unidentified insured vehicle.

The parties were the deceased’s dependants as plaintiffs, namely N[...] G[...] (the first plaintiff and spouse) and their two children, X[...] S[...] (second plaintiff) and X[...] G[...] (third plaintiff). The defendant was the Road Accident Fund.

As to procedural history, the matter proceeded to trial after the defendant, on 26 August 2020, conceded liability for 100% of the plaintiffs’ proven damages arising from the deceased’s death. The remaining issues for determination were the plaintiffs’ entitlement to damages for loss of support and funeral expenses, including the question whether the death was causally attributable to the collision. Judgment was reserved on 23 November 2022 and delivered on 4 April 2023.

The dispute concerned whether the deceased’s death resulted directly from injuries sustained in the collision, or whether an alleged intervening factor—namely alleged substandard medical care—broke the chain of causation, and, if liability followed, what amounts were proved for the various heads of damages.

2. Material Facts

It was common cause that on 8 December 2008 the deceased was injured in a collision with an unidentified motor vehicle and was taken to hospital. The hospital records reflected that upon admission he presented with a fractured left leg and a head injury, including blood draining from the right ear. The leg was placed in a plaster of paris (POP) and he received analgesics for headache complaints. He was discharged the next day, 9 December 2008.

The first plaintiff testified to observations consistent with head injury at the scene and thereafter, including that the deceased’s ear was bleeding and that he had convulsions prior to being loaded into the ambulance. After discharge, the deceased made several visits to medical facilities and continued to complain of headaches and bleeding from the ear. The deceased died on 6 August 2009, and the first plaintiff incurred funeral expenses.

On causation, the plaintiffs relied on the expert evidence of Dr P.J.J. Swartz, a neurologist, who considered the hospital records and an interview with the first plaintiff. Dr Swartz concluded that the deceased’s death was the direct result of significant head trauma sustained in the collision, that the presentation was consistent with a skull base fracture, and that death resulted from complications of that fracture. The defendant presented no expert evidence and led no evidence to contradict Dr Swartz’s conclusions.

On quantum relevant to support, the plaintiffs’ evidence (including an employment questionnaire in evidence as Exhibit A) was that the deceased was employed and earned approximately R3 000 per month, and there was evidence that he could also earn overtime. The actuarial calculations relied upon by the plaintiffs proceeded on the R3 000 monthly earnings figure and excluded the asserted overtime figure. The first plaintiff also proved funeral expenses by production of an invoice from the funeral parlour.

The defendant, while having conceded liability generally, raised argument at trial that alleged substandard medical intervention constituted a novus actus interveniens, and further contended that there was insufficient proof of earnings and that the court should apply contingencies.

3. Legal Issues

The central legal question was whether, on the evidence, the deceased’s death was factually and legally caused by the injuries sustained in the motor collision, or whether the chain of causation was broken by an alleged intervening act in the form of substandard medical treatment.

A further legal issue concerned pleading and procedure: whether the defendant could rely on novus actus interveniens as a defence when it had not been pleaded as a special plea, and what consequences followed from raising the point only in cross-examination and argument.

A further issue, involving application of law to fact, was whether the plaintiffs proved the deceased’s earnings and the quantum of loss of support and funeral expenses, and whether contingencies should be applied on the facts as presented.

The dispute thus involved a combination of questions of fact (medical causation and proof of earnings), application of legal causation principles to facts, and a procedural question regarding pleadings and when a defence may be adjudicated.

4. Court’s Reasoning

On causation, the court applied the two-stage approach described in Minister of Police v Skosana 1977 (1) SA 31 (A), distinguishing factual causation (whether the conduct caused or materially contributed to the harm) from legal causation/remoteness (whether the link is sufficiently close for liability to ensue, taking policy considerations into account). The court noted that the same general approach was adopted by the Constitutional Court in Lee v Minister for Correctional Services 2013 (2) SA 144 (CC).

In assessing factual causation, the court accepted Dr Swartz’s expert evidence as uncontroverted and found there was “nothing to gainsay” his opinion that the deceased suffered a skull base fracture and that this injury caused his death. The court reasoned that the skull base fracture was caused by the collision and that, applying the “but for” test, but for the accident the deceased would not have sustained the head injury that led to death. The court referred to Minister of Finance and Others v Gore 2007 (1) SA 111 (SCA) for the proposition that the “but for” enquiry is one of common sense and practical retrospective analysis, rather than scientific certainty, and that a plaintiff need only establish that the wrongful conduct was probably a cause of the loss.

Regarding the defendant’s reliance on novus actus interveniens, the court treated this as raising a special plea because it constituted a defence not flowing from the particulars of claim and which would destroy or postpone the cause of action. Drawing on principles stated in Amler’s Precedents of Pleadings and Erasmus: Superior Court Practice, the court held that such a defence had to be raised formally on the pleadings, and that raising it in cross-examination and argument was not permissible. The court accepted the plaintiffs’ submission that, had such a plea been properly raised, they could have sought the joinder of the allegedly responsible medical entities.

The court further reasoned that even if the defence had been properly pleaded, it would not have succeeded on the facts accepted by the court. The court distinguished Mkhitha v Road Accident Fund (1783/2012) [2015] ZAECMHC (1 October 2015), where the sequelae were found to have arisen from substandard medical intervention that materially altered the outcome. By contrast, in the present matter the court found that the deceased was not treated for the head injury said to have caused death, and that the lack of medical treatment did not constitute a “fresh cause of death” breaking the causal chain. In support of this approach, the court referred to the dictum in S v Mini 1963 (3) SA 188, to the effect that where medical treatment does not introduce a fresh cause of death, the original injury remains the cause.

On damages, the court accepted the plaintiffs’ proof that the deceased was employed and earned R3 000 per month, relying on Exhibit A and the first plaintiff’s uncontroverted testimony. The court noted that the actuarial report was premised on the R3 000 figure and did not include the additional overtime amount. Because the defendant led no evidence to contradict the earnings evidence, the court found no basis to apply contingencies as urged by the defendant in argument. The funeral expenses were held to be proved by the invoice provided.

On costs, the court applied the general principle that costs follow the result and found no reason to depart from that approach.

5. Outcome and Relief

The court held the defendant liable to compensate the plaintiffs for loss of support and funeral expenses, rejecting the defendant’s argument that alleged substandard medical care constituted an intervening cause breaking the chain of causation. The court accepted the plaintiffs’ evidence on earnings and damages, and granted judgment in the amounts supported by the actuarial calculations and documentary proof.

The defendant was ordered to pay the quantified damages to the plaintiffs within 180 calendar days of the order, with interest at 7.75% per annum calculated from 14 days after the date of the order until payment, and interest on taxed costs from 14 days after taxation until payment. Costs were awarded on the party and party scale, including specified counsel and expert-related costs.

Cases Cited

Minister of Police v Skosana 1977 (1) SA 31 (A).

Lee v Minister for Correctional Services 2013 (2) SA 144 (CC).

Minister of Finance and Others v Gore 2007 (1) SA 111 (SCA).

Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA).

Mkhitha v Road Accident Fund (1783/2012) [2015] ZAECMHC (1 October 2015).

S v Mini 1963 (3) SA 188 (A).

Legislation Cited

No legislation was expressly cited in the judgment.

Rules of Court Cited

No rules of court were expressly cited in the judgment.

Held

The court found that the plaintiffs proved, on a balance of probabilities, that the deceased died as a result of a skull base fracture and head trauma sustained in the motor collision, applying factual causation principles and accepting unchallenged expert evidence.

The court held that the defendant’s reliance on novus actus interveniens was procedurally impermissible because it was, in substance, a special plea that had not been pleaded. The court further held that, in any event, the alleged lack of medical treatment did not constitute a fresh intervening cause breaking the causal chain in the circumstances.

The court held that the plaintiffs proved the deceased’s earnings and the quantum of loss of support by uncontroverted evidence and actuarial computation, and that funeral expenses were proved by invoice. Judgment was granted in specified amounts with interest, and costs were awarded to the plaintiffs.

LEGAL PRINCIPLES

Causation in delict involves a two-stage enquiry comprising factual causation (whether the act or omission caused or materially contributed to the harm) and legal causation/remoteness (whether the link is sufficiently close for liability to ensue, with policy considerations potentially relevant), as articulated in Minister of Police v Skosana 1977 (1) SA 31 (A) and adopted in Lee v Minister for Correctional Services 2013 (2) SA 144 (CC).

The “but for” test is applied as a practical, common-sense evaluation rather than as a matter requiring scientific certainty. A plaintiff need establish only that the wrongful conduct was probably a cause of the loss, consistent with Minister of Finance and Others v Gore 2007 (1) SA 111 (SCA) (with reference to Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA)).

A defence amounting to a special plea must be properly pleaded; raising it only in cross-examination or argument is generally not permissible, and absent amendment it will ordinarily not be adjudicated upon, consistent with the approach described in Amler’s Precedents of Pleadings and Erasmus: Superior Court Practice as referenced by the court.

An alleged intervening medical factor will not break the chain of causation unless it constitutes a fresh cause of harm. Where medical treatment does not introduce a fresh cause of death, the original injury may remain the operative cause, consistent with the principle applied by reference to S v Mini 1963 (3) SA 188 (A) and the court’s distinction of Mkhitha v Road Accident Fund (1783/2012) [2015] ZAECMHC (1 October 2015).

N.G and Others v Road Accident Fund (3504/2013) [2023] ZAECQBHC 23 (4 April 2023)