Medical negligence as a causative factor in South African criminal law: Novus actus interveniens or mere misadventure?

• Jurisdiction: South Africa
• Date: 16 August 2019
• Pages: 192-211
• Published date: 16 August 2019
• Author: P A Carstens

Medical negligence as a causative

factor in South African criminal law:

novus actus interveniens or mere

misadventure?

PA CARSTENS*

ABSTRACT

The aim of this article is to assess the validity and applicability of medical

negligence as a novus actus interveniens, with reference to recent South

African criminal case law. Such an assessment necessitates an analysis of the

most important rules pertaining to causation in South African criminal law.

In the context of medical negligence as a new intervening act, reference is

made to the inf‌l uence of medical errors of judgement and the concept of

medical misadventure. The judicial ‘grading’ of criminal medical negligence

as ‘gross’ or ‘overwhelming’, with reference to relevant case law, is also

explored and criticised. It is submitted that the courts should avoid ‘grading’

medical negligence by way of policy considerations to establish the absence

of a novus actus interveniens. They should rather make a principled

assessment of medical negligence, with due consideration to the concepts of

medical misadventure and professional errors of judgement. More often than

not, a principled assessment will lead to a f‌i nding that there was no medical

negligence and consequently no novus actus interveniens, even in the face

of adverse consequences.

1. Introduction

The judicial assessment of medical negligence as a possible causative

factor regarding the materially def‌i ned crimes of murder and culpable

homicide is a recent revival in South African criminal law.1 In practice this

phenomenon manifests in the following way: X (the perpetrator) unlawfully

and intentionally inf‌l icts life-threatening wounds upon Y (the victim).

Consequently, Y is hospitalised in a serious condition. It is common cause

that Y would die if Y does not receive urgent medical treatment. However,

as a result of the hospital being understaffed, ill-equipped or otherwise

medically compromised, or alternatively, as a result of medical negligence

by the attending physician or nursing staff, Y does not receive either

timeous, adequate or correct medical treatment and therefore dies.

∗ BLC LLB LLD (Pret), Associate Member of the Pretoria Bar, Professor of Criminal and

Medical Law, University of Pretoria.

1 The word ‘revival’ is used as this is not a new development in the case law — compare

authority referred to in (n2) and (n23) infra.

192

(2006) 19 SACJ 192

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Medical negligence as a causative factor in South African criminal law 193

Later, at the criminal trial when X is charged with the murder of Y, X

raises the defence that Y died as a result of medical negligence on the part

of the hospital and/or attending physician or nursing staff. X contends that

the medical negligence is to be construed as a novus actus interveniens

(a new intervening act) breaking the chain of causation and that X at most

should be convicted of attempted murder or assault with intention to do

grievous bodily harm. In contrast, the prosecution usually argues that,

due to the inf‌l iction of life-threatening wounds, Y would have died in any

event. Nevertheless, policy considerations dictate that X is the legal cause

of Y’s death despite the medical negligence.

The aim of this paper is to assess the validity and applicability of medical

negligence as a new intervening act, with reference to recent South African

criminal case law. It will be shown that general principles of criminal

law governing the element2 of causation in the assessment of medical

negligence are not always in synergy with the case law. Furthermore,

judicial sentiment in this regard is indicative of a certain degree of so-

called ‘legal or judicial protectionism’ slanted in favour of the medical

profession. In addition, the courts in these instances tend to ‘grade’ medical

negligence in order to rule that such negligence, on policy considerations,

should not be regarded as a novus actus interveniens. Specif‌i c reference

is made to ‘errors of professional judgement’ or ‘medical misadventure’ as

a possible new intervening cause.

2. The most important rules pertaining to causation in

current South African criminal law

An assessment of medical negligence as a possible causative factor

necessitates a brief consideration of the most important rules pertaining to

causation in the current South African criminal law. Brief‌l y, various rules

of causation can be stated. First, to f‌i nd that an accused’s act or omission

caused a certain result, such as the death of the victim, the accused’s act

or omission must be the factual and legal cause of the victim’s death.3

2 It should be noted that, for purposes of this article, reference is made to the ‘element’ of

causation. Causation is of course not a separate element per se for criminal liability but

is rather part of the def‌i nitional elements (or proscription) of the crimes of murder and

culpable homicide, as correctly observed by CR Snyman Criminal Law 4ed (2002) 64ff.

See also JC De Wet & HL Swanepoel Die Suid-Afrikaanse Strafreg 4ed (1985) 62ff; J

Burchell & J Milton Principles of Criminal Law 2ed (1997) 115ff; J Burchell Principles

of Criminal Law 3ed (2005) 209ff. For a detailed discussion of causation in criminal law

see FFW Van Oosten Oorsaaklikheid by Moord en Strafbare Manslag LLD (Pretoria)

(1981) 224; compare FFW Van Oosten ‘Oorsaaklikheid by mediese behandeling as

tussenfaktor in die Suid Afrikaanse strafreg’ EM Hamman-Gedenkbundel (1984) 173.

3 S v Daniels 1983 (3) SA 275 (A); S v Mokgethi 1990 (1) SA 32 (A); S v Counter 2003 (1)

SACR 143 (SCA); see also Minister of Police v Skosana 1977 (1) SA 31 (A) 34 albeit in the

context of causation in the law of delict.

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