See Snyman 5 th ed,

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1 Causation and Medical Intervention By James Grant The question arises whether medical treatment, which necessarily intervenes between the conduct in question and the death of the victim, and which somehow plays a role in hastening the death of a victim, should be regarded as breaking the chain of causation. Snyman 1 correctly identifies two factors at play in determinations of whether medical intervention should be regarded as interrupting causation. The two factors are the severity of the initial injury (which will be discussed further below), and the quality of the medical intervention. The quality of the medical intervention may range from good care to negligent, and ultimately, one may expect, to the bad faith, intentional (malevolent) hastening of death by a medical practitioner. Severity of Wound Regarding the severity of the wound, we tend to think of wounds as either lethal or nonlethal. Lethal wounds are those which are of such a serious nature that they would ordinarily lead to death. Non-lethal wounds, on the contrary, are wounds which would not ordinarily lead to death. One may argue that medical care is not equally available to all in SA. This point is accepted. Nevertheless, the questions relating to medical intervention are whether such medical intervention as is given breaks the chain of causation. For that reason we are necessarily dealing with scenarios in which medical intervention was obtained. The problem arises because it transpires that the victim dies and the quality of the medical assistance is questionable. The question needs to take medical intervention as a given therefore, but set it against a spectrum relating to the quality of the care given: from good to bad faith (malevolent) improper care. Yet still there is a (further) complication in the context of medical intervention: an injury which would otherwise be lethal may be treatable in which case an otherwise lethal wound is not, all things considered, lethal. In the alternative, there are lethal injuries which are untreatable, and which remain lethal. Therefore we seem to have three categories of severity: 1. Non-lethal (treatable); 2. Lethal (untreatable); 3. Non-lethal (in every sense perhaps a small scratch which the victim neglects). This leaves us with the three categories. But the third, in which the victim requires no medical assistance, seems dispensable. In these cases, medical intervention which is administered, where it is unnecessary, and where it kills the victim, would virtually always have to be abnormal and unusual and therefore a nova causa interveniens. This would leave us with just two categories: 1. Non-lethal (treatable); 2. Lethal (untreatable). We are left now with the problem of defining these two categories what do they really mean given that we are assuming that medical intervention was available and was 1 See Snyman 5 th ed,

2 administered. In the leading case of Tembani 2 Cameron JA was focused on an injury of the following severity: The infliction of an intrinsically dangerous wound, from which the victim is likely to die without medical intervention. 3 This seems to fit with the category of injuries in which the injury is lethal (from which a victim would ordinarily die). In allocating it to the subcategory (regarding whether correct medical care would save the victim s life) it seems that the qualification, that the victim would likely die without medical intervention, is to be interpreted to mean that, with medical intervention, the victim would live and thus into category 1 - in which correct medical intervention could save the victim s life. The contrary interpretation, that the victim would die anyway, even with correct medical intervention, renders the qualification redundant in this conception, the injury is so serious that the victim would die irrespective. This does not seem to be intended by Cameron. 4 Snyman, sets up two categories of serious injuries: injuries were of such a serious nature that the deceased would have died in any event, despite correct medical treatment 5 This seems naturally to fall into the subcategory of a victim whose injuries are lethal and good medical assistance would not save his/her life and thus into category 2 (lethal untreatable). He also refers to scenarios in which the injury is not so serious 6 presumably these must be categorised as a category 1 injury (non-lethal treatable). Beyond this, he contemplates a scenario in which the injuries may be serious, but in respect of which, medical intervention may save the life of the victim 7 this seems also to fall into category 1. 2 S v Tembani 2007 (1) SACR 355 (SCA). 3 para Also, in adopting this definition, from R v Mubila 1956 (1) SA 31 (SR) 33, Cameron distinguishes it from other possible understandings. He contrasts his conception with three others identified by Hart and Honoré (Causation in the Law, 2 nd ed, 1985, & 353) as follows: (i) sufficient to cause the death of a person of average constitution under normal circumstances; (ii) highly likely to cause the death of a particular victim, given his constitution and the likelihood of medical assistance; (iii) in fact causing death even though not mortal in senses (i) and (ii) (eg a scratch the victim neglected). (p 10 note 10) It is not clear how this first alternative can be contrasted with Cameron conception or the interpretation I put on it: the sort of injury that would lead to death without medical assistance, but that with correct medical assistance, the victim would live. At best, this seems to be a reference to a scenario in which no medical intervention is available or that it, or the prospect of it, plays any role. This falls off our radar. The second seems to refer to the scenario in which medical assistance is likely that the injury is so severe that correct medical assistance would not save the victim that is, a category 2 injury. It is on this basis that I interpret the definition adopted by Cameron as a category 1 injury as not being a reference to an injury which is so severe that the victim would die in any event, even with correct medical treatment (which would be a category 2 injury). The third refers to an injury for which medical intervention is not required (which I discussed as my original category 3 injury where I initially distinguish 3 degrees of severity), but have withdrawn as a valid category for consideration (given that medical intervention would, necessarily, be abnormal in the circumstances, discussed above). 5 Point 1. 6 Points 2 and 3. 7 Points 4.

3 Quality of Medical Care The view expressed by the Supreme Court of Appeal in S v Tembani 8 is that it should not be regarded as abnormal or unusual for a victim to receive negligent or sub-standard care in a hospital: In a country where medical resources are not only sparse but grievously maldistributed, it seems to me quite wrong to impute legal liability on the supposition that efficient and reliable medical attention will be accessible to a victim, or to hold that its absence should exculpate a fatal assailant from responsibility for death. Such an approach would misrepresent reality, for it presumes levels of service and access to facilities that do not reflect the living conditions of a considerable part, perhaps the majority, of the country s population. To assume the uniform availability of sound medical intervention would impute legal liability in its absence on the basis of a fiction and this cannot serve the creation of a sound system of criminal liability. 9 This is a sad indictment on our medical system, but probably a fair one. It is also one shared by Snyman 10 and Burchell. 11 Can Medical Intevention serve as a nova causa interveniens? The clearest exposition on this point can be found in Tembani, in which Cameron JA states: The deliberate infliction of an intrinsically dangerous wound, from which the victim is likely to die without medical intervention, must in my view generally lead to liability for an ensuing death, whether or not the wound is readily treatable, and even if the medical treatment later given is substandard or negligent, unless the victim so recovers that at the time of the negligent treatment the original injury no longer poses a danger to life. 12 Cameron JA goes further, in an obiter, to the effect that even if the medical intervention was grossly negligent, he would not regard it as relieving the accused of responsibility of the subsequent death. 13 When one takes account of the possibilities in respect of the quality of care and the possibilities in respect of the severity of the injury, the following matrix (below) may be created in which 8 scenarios may be identified. In the matrix I have set the severity of injury running down the left side, as follows: 1. Non-Lethal (treatable) 2. Lethal (untreatable). I have set the quality of care running across the top, as follows: A. Good/Proper care; B. Negligent care; C. Grossly negligent care; D. Intentionally improper care. Into this matrix one may locate what our leading judgment (Tembani) and the views of Snyman. In addition we may accommodate the judgments in Counter, 14 Mabole, 15 Williams. 16 The facts in Counter were that the victim had been shot in her buttock. The medical 8 S v Tembani 2007 (1) SACR 355 (SCA). 9 Tembani para Snyman 5 th ed, p Burchell, 4 th ed, p Tembani para [W]hile the wound remains intrinsically fatal, even gross negligence should not permit escape from legal liability for its consequences. Para 29 Tembani (footnote omitted). 14 S v Counter (1) SACR 143 (SCA). 15 R v Mabole 1968 (R). 16 S v Williams SA 1188 A

4 intervention did not detect the bullet had perforated the victim s anal canal. A virulent infection ensued which hastened the victim s death. The court was not prepared to regard the medical intervention given as interrupting the chain of causation. This judgment seems to fit in category 1A. It may also be authority for category 1B on the basis that it is not clear that the medical care given could not be regarded as negligent, and that the court simply did not regard it as deviating sufficiently from the standard required as to be abnormal and unusual. 17 In Mabole the victim had suffered a stab wound and surgery had unblocked a blood clot, which then caused death. The court held that if medical attention is given in good faith and with reasonable efficiency, the accused could not complain of mistakes made in diagnosis and treatment. This case also seems to fit in category 1A. In Williams the court held that where an accused injures a victim so severely that the victim s life can only be sustained by a respirator, switching the respirator off cannot operate as a nova causa interveniens. A distinction was drawn between a positive act of killing and ending a fruitless attempt to save life. This judgement seems to fit in category 2A. There is, to my knowledge, no case authority on the scenario of medical intervention given intentionally improperly. In my view we may draw on the judgement of Trengrove and Nicholas (obiter) in Daniëls. These two judges asked the question whether malevolent intervention which hastens the death of a victim who is in any event about to die could be regarded as a nova causa interveniens. They concluded that it could. Of course, in this case, the court was not dealing with medical intervention but we may adapt the facts to guide us as to what a court might find. We must consider what the court might have said if the victim, after having been shot twice in the back, was transferred to a medical facility. In translating the facts of Daniëls, on the question of where to allocate the case in terms of the severity of the wound we need to be aware that, on the facts, medical treatment to save the victim s life was not available the victim was going to die about 30 minutes after the two shots to his back. This may lead one to think it appropriate to allocate the case to the category of nonlethal treatable injuries. However, we need to translate the facts to maintain the lethal nature of the injury. If the victim were in a medical setting, and was going to die, we would have to treat this as a lethal non-treatable injury a category 2 injury. The quality of the treatment would have to be that of a malevolent doctor, giving intentionally improper treatment. If we would treat the conduct of someone 18 who is under no obligation to save the life of the victim as a nova causa interveniens, then it seems we must do so where there is not only intentional intervention, but a malevolent breach of the duty to save the victim s life. Therefore it seems that we should allocate this scenario, in relation to the quality of care, to category D. We may extrapolate therefore, that, if one does a nova causa interveniens inquiry, we may treat Daniels as an indication that our courts will regard malevolent medical treatment (category D) of a category 2 (lethal) injury, as a nova causa interveniens. 17 Burchell, p Whoever fired the final shot into the ear of the victim.

5 Non-lethal (treatable) Lethal (untreatable) Good Negligent Grossly Negligent No NCI No NCI No NCI (Snyman Pt (Tembani; (Tembani 2; Counter; Snyman Pt obiter) Mabole) 4; ~ Counter). No NCI (Williams) No NCI (Snyman Pt 1) NCI: Snyman Pts 3 and 4. Intentionally Bad NCI: (Snyman Pt 3) NCI: Daniels (Trengrove and Nicholas (obiter). From the discussion in Tembani, it would seem to follow from Cameron s obiter that he would recognise a NCI even in the case of gross medical negligence, that: 1. He would not do so in the case of intentionally improper treatment; but 2. He would certainly not do so in the case of good care. The point is that intuitions seem to direct that the chances of recognising a NCI increase with the impropriety of care: the more improper the treatment, the more likely the recognition of a nova causa interveniens. 19 The qualification in Tembani relating to whether an injury is still operative, seems to relate to how treatable the injury is and seems to express the intuition that the more treatable an injury, the more appropriate it would be to recognise a NCI. This sentiment appears to be endorsed by Snyman. 20 A combination of these two intuitions direct that the best case scerario in respect of which we should expect the recognition of a nova causa interveniens would be those of non-lethal (treatable wounds) where the victim receives intentionally improper medical treatment. Finally, let us consider how the nova causa interveniens test and adequate cause theory would apply. Adequate cause asks: in the ordinary course of event, in the light of general human experience, would the injury inflicted ordinarily lead to the death of the victim? The nova causa interveniens test asks whether anything abnormal or unusual, judged in the light of general human experience, in the ordinary course of events, interrupted the causal chain of events. You may recall from above 21 that the two tests are at odds in that while the nova causa interveniens test takes account of any abnormal intervening event, the adequate cause theory ignores it. So how would this apply to injuries which are either, as we have constructed them, non- 19 These intuitions seem to be shared by Burchell (103). 20 Compare point 1 on p 91 with point 4 on p See James Grant 'The Permissive Similarity of Legal Causation by Adequate Cause and Nova Causa Interveniens ' (2005) 122 SALJ.

6 lethal, or lethal, and in which the medical care given ranges from good to deliberately malevolent? Adequate cause seems to ask: 22 Does it ordinarily happen that a person, suffering with either a lethal wound which is treatable or lethal wound which is not treatable, would die from treatment? In the case of category 2 injuries, in which the victim is expected to die in any event (even given correct treatment), it seems to follow that no actual abnormal intervention should be regarded as interfering with the conclusion that the party responsible for the conduct that ordinarily leads to death is the adequate cause and therefore the legal cause. This explains Snyman s preference for the recognition of a nova causa interveniens in the context of injuries which are lethal, but treatable. Although in the context of injuries that are treatable, but the actual treatment given is negligent or malevolent, the adequate cause theory seems to require careful framing so that it does some work. 23 If it asks as it does that we focus on what will ordinarily become of the victim given the initial treatable injury, the answer seems to exclude the conduct of the accused as an adequate cause irrespective of the quality of the treatment given unless we ask, whether it is to be expected that a victim with a treatable wound should ordinarily be expected to die in hospital? Or perhaps we must ask whether we should expect the victim, suffering with a life threatening, but treatable injury, to die from medical negligence, gross negligence, or malevolent intervention. But this is adequate cause theory masquerading as nova causa interveniens theory. Adequate cause theory requires that we assume a normal course of events while we may accept that mistakes or even malevolent interventions are made in hospitals, I doubt they could qualify as ordinarily to be expected. Thus the adequate cause theory seems to breakdown in any role designed to distinguish between the type of care actually given. This is not unexpected. The focus of the adequate cause theory is the original injury, assuming the ordinary course of events. It does not, indeed cannot, take account of what actually happened. What about nova causa interveniens? This is the question that focuses our attention on whether anything abnormal and unusual did happen which serves to break the chain of causation. In the context of injuries which are non-lethal (lethal but treatable), there seems to be a natural place for this question. If a victim s death was accelerated by medical treatment, the question becomes, was the medical care unusual or abnormal. This in turn, sets us up to take account of whether the quality of the care received, was abnormal or unusual. It fits perfectly with the approach adopted in Tembani and thus with the leading judgment on the issue. It is not abnormal or unusual to receive negligent, and possibly even grossly negligent medical treatment therefore no nova causa interveniens should be recognised. It is possibly worth stating that it is also not unusual or abnormal to receive good treatment so again, no nova causa interveniens should be recognised. What may certainly be abnormal or unusual would be intentional malevolent medical treatment. This would seem to be an overriding consideration irrespective of whether the initial injury was treatable or not. 22 To be clear, adequate cause theory seems to permit this question to be formulated in numerous different ways and as I have argued (James Grant 'The Permissive Similarity of Legal Causation by Adequate Cause and Nova Causa Interveniens ' (2005) 122 SALJ) to conform with the purpose of the enquirer. 23 Again, one should be concerned if one can influence the answer to a question so dramatically by changing the way the question is framed.

7 In conclusion, it would seem that the best case for the recognition of a nova causa interveniens would be where the injury is treatable, but where the medical care given is intentionally improper. Given the apparent agreement in our law regarding the standard of medical intervention that is to be expected in our hospitals at the moment (which may be negligent), it seems that the grey areas are in the case of intentionally improper treatment where the wound was untreatable, 24 and where the treatment was grossly negligent, but the injury was treatable Although, if one regards the Daniels facts as analogous, it would seem that a NCI ought to be recognised here. 25 As discussed, Snyman and Cameron are at odds on this point.