Minister of Police v Skosana

• Jurisdiction: South Africa
• Judge: Wessels JA, Jansen JA, Corbett JA, Kotzé JA and Viljoen AJA
• Judgment Date: 27 September 1976
• Citation: 1977 (1) SA 31 (A)
• Hearing Date: 19 March 1976
• Court: Appellate Division

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

1977 (1) SA p31

Citation	1977 (1) SA 31 (A)
Court	Appellate Division
Judge	Wessels JA, Jansen JA, Corbett JA, Kotzé JA and Viljoen AJA
Heard	March 19, 1976
Judgment	September 27, 1976

Flynote : Sleutelwoorde A

Delict — Causation — Problems relating to — Test — Causa (conditio) sine qua non — Negligence — Negligent delay in furnishing medical aid B and treatment to deceased — Widow establishing, on a balance of probabilities, that deceased would not have died but for such delay — Widow entitled to damages.

Headnote : Kopnota

Causation in the law of delict gives rise to two rather distinct problems. The first is a factual one and relates to the question as to whether the negligent act or omission in question caused or materially contributed to the harm giving C rise to the claim. If it did not, then no legal liability can arise and cadit quaestio. If it did, then the second problem becomes relevant, viz. whether the negligent act or emission is linked to the harm sufficiently closely or directly for legal liability to ensue or whether, as it is said, the harm is too remote. This is basically a juridical problem in which considerations of legal policy may play a part. The test, otherwise known as that of causa (conditio) sine qua non, is whether, but for the negligent act or omission of the D defendant, the event giving rise to the harm in question would have occurred: generally speaking no act, condition or omission can be regarded as a cause in fact unless it passes this test. (Per CORBETT, J.A., WESSELS, J.A. and KOTZÉ, J.A., concurring.)

Respondent had in the Transvaal Provincial Division successfully claimed damages on behalf of herself and her minor children resulting from the death of her husband, T, in the E following circumstances. T, whilst heavily under the influence of intoxicating liquor, had driven his motor car off the road and landed in a ditch, as a result whereof T, the respondent and two other passengers had been injured. The passengers had been removed in an ambulance but T had been removed in a police van to the charge office and from there to the consulting rooms of the district surgeon who had performed a clinical examination and taken a blood sample. At that stage T had only complained of a pain in the chest and, although he had been F examined thoroughly, no sign of internal injury could be detected. When the cells had been opened next morning at 7.45 a.m. he had complained of quite a severe pain over the abdomen and had requested to be taken to a doctor. At 9.45 a.m. he had walked with the constable to the district surgeon's consulting rooms where he had immediately been examined. The district surgeon had written a note for the hospital and instructed the constable to arrange for his being taken there. There was a further delay of two hours before the ambulance arrived. At the G hospital he was found to be in a very serious condition. An attempt was made to resuscitate him for operation but his condition remained poor and, when it was found impossible to resuscitate him further, a laparotomy was performed. The viscus was found to be ruptured with severe generalised peritonitis. The ruptured small bowel was sutured and a drain inserted. Although he had only been lightly anaesthetized he failed to H "wake up" and died shortly after leaving the theatre. The Court held that the constables concerned, acting within the course of their duty and within the score of their employment, had been negligent (a) in not immediately summoning the district surgeon and (b) in not causing him to be taken to hospital immediately thereafter. The Court had awarded damages in an agreed amount. In an appeal, it was accepted that the prime cause of death was the occurrence in which T sustained his bowel injury which in turn resulted in peritonitis.

Held, that the respondent had established negligent delay in furnishing the deceased with medical aid and treatment in the aforesaid respects.

1977 (1) SA p32

Held, further, that the respondent had established, as a matter of probability, that the deceased would have survived if the operation had been performed nearly five hours earlier, as it would have been, regard being had to a shorter period of resuscitation being necessary, but for the negligence of the constables (JANSEN, J.A., and VILJOEN, A.J.A., dissenting).

A The decision in the Transvaal Provincial Division in Skosana v Minister of Police, confirmed.

Case Information

Appeal from a decision in the Transvaal Provincial Division (DE VILLIERS, A.J.). The facts, with certain omissions, appear from B the judgment of VILJOEN, A.J.A.

L. F. Weyers, for the appellant. The test to be applied is that of the reasonable man: see S.A.R. v Symington, 1935 AD 43; Mandelbaum v Bekker, 1927 CPD 377; Herschel v Mrupe, 1954 (3) SA at pp. 475B - 476H, 492H. It is sufficient if the C general nature of the harm should have been foreseen, Kruger v Van der Merwe, 1966 (2) SA 266. There is also respectfully referred to Macintosh & Scoble, Negligence in Delict, 5th ed., pp. 22 - 24; Salmond, Tort, 14th ed., para. 87, p. 296; Winfield, Tort, 9th ed., p. 25. Not one of the witnesses called regarded the deceased as an emergency case. A layman cannot be expected to notice the clinical signs and symptoms regarded as important by medical practitioners.

D. A. Kuny, for the respondent: The standing orders are clearly so framed as to ensure the safety and well-being of prisoners, recognising the special relationship which exists between the police and prisoners and the particular responsibility flowing from the fact that a prisoner is not a free agent to seek and obtain medical attention, or go to a E hospital for treatment of his own accord. The police therefore have a special responsibility towards their prisoners and this responsibility was in fact recognised in the case of Mtati v Minister of Justice, 1958 (1) SA 221. See also Dolf v Heath, 1959 (1) SA at pp. 719 - 720. Applying the test laid down in Herschel v Mrupe, 1954 (3) SA 464, a reasonable man in these particular circumstances and possessed of the knowledge which F Mahela and Davel had concerning the deceased's condition at 7.45 a.m. and having regard to the fact that they knew that he had been involved in a serious motor accident the previous night, would have foreseen that, unless the deceased was examined by a doctor without delay and received timeous medical attention, he might die. The reasonable man would in those G circumstances have "governed his conduct accordingly" and "guarded against" this danger by attending expeditiously to his complaints and request to see a doctor. The failure by the police to do so was on the probabilities the causa causans of his death. D

Weyers in reply.

Cur. adv. vult. H

Postea (September 27).

Judgment

Jansen, J.A.:

I have had the advantage of reading the judgments of my Brothers CORBETT and VILJOEN. I am in respectful agreement with the order proposed by the latter.

On the assumption that Davel and Mahela should have foreseen the risk

1977 (1) SA p33

Corbett JA

of harm to Timothy Skosana and his dependants, particularly his death, and that they failed to act reasonably in the circumstances, the question remains whether, on a balance of probabilities, reasonable conduct on their part would have A prevented Skosana's death (cf. S. v Van As en 'n Ander, 1967 (4) SA 594 (AD) at pp. 601A, 602D). Conversely, the question may be stated thus: would, on a balance of probabilities, Skosana have lived but for the unreasonable conduct of Davel and Mahela? This appears to be the fundamental enquiry, and is, in the circumstances, tantamount to applying the sine qua non concept of causality. For the reasons stated by my Brother VILJOEN it must, in my opinion, be held that the respondent failed to discharge the onus in this regard. I do B not find it necessary to express any opinion on the question of causality and delictual liability in general.

Judgment

Corbett, J.A.:

A full review of the facts of this matter and of the evidence placed before the Court a quo is contained in the C judgment of my Brother VILJOEN, which I have had the advantage of reading. For the reasons which follow I find myself unable to concur in the eventual conclusion reached by him.

As I see the case, the basic issue is whether the harm suffered by the respondent and her children by reason of the death of D the family breadwinner, viz. Timothy Skosana (hereafter referred to as "the deceased"), was caused by the negligence, or culpa, of constables Davel and Mahela, acting in the course of their duty and the scope of their employment as policemen. This issue gives rise to a two-pronged enquiry: (a) whether Davel and Mahela in the aforementioned capacity acted E negligently towards the deceased, and (b) if so, whether their negligent conduct, or culpa, caused the death of the deceased.

As was stated by HOLMES, J.A., in Kruger v Coetzee, 1966 (2) SA 428 (AD) at p. 430:

"For the purposes of liability culpa arises if:

(a)

a diligens paterfamilias in the position of the F defendant:

(i)

would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and

(ii)

would take reasonable steps to guard against such occurrence; and

(b)

the defendant failed to take such steps."

Although this formulation is directed rather to the position where the person injured suffers the patrimonial loss, it is G also applicable, with slight adaptation, to the situation where, as in the present case, the loss is suffered by a dependant of the person injured.

Substantially for the reasons elaborated by VILJOEN, A.J.A., in his judgment I am of the opinion:

(1)

That at (or shortly after) 7.45 a.m. on the morning...