Causation:

Define causation:

In order for a court to hold that negligence has occurred, and a person or company is liable several
elements must be proven. One of these is causation. The general understanding is that there must be a
causal link between the claimant's loss and the negligent behaviour of the defendant. To order to
proper define and investigate whether one of the elements exist we will define causation as the
following

“Causation is defined as the loss or damage which must be caused by the wrongful culpable
act. There must be a nexus or link between the act commission or omission and the loss or
damage suffered. Where the crucial link is missing the so called wrong doer cannot be held
liable in delict. The the problem can be further limited by the fact that the wrong doer will
only be held liable if (firstly)his conduct which(secondly) caused the (thirdly) damage or
injury was at the same time also wrongful and culpable(the other 2 elements of the delict)”
(NAGEL, 2006 p33)

Omission liability which is the liability for not doing an act required by law is defined as
noncausal( (Causation - Role Of Causation In The Criminal Law) A defendant who omits to
do an act the law requires him to do is not liable for having caused the harm that the act
omitted would have prevented; rather, he is liable for not preventing the harm (Moore, 1993,
pp. 267–278). To assess whether a defendant is liable for an omission to prevent some harm,
a causal judgment is still necessary: we have to know that no act of the defendant prevented
any such harm. If some act of the defendant did cause the absence of a certain harm, then the
defendant cannot be said to have omitted to have prevented the harm (Causation - Role Of
Causation In The Criminal Law)

Discuss legal and factual causation

They are 2 kinds of causation which are both linked to each other and are both needed in order
to determine whether there is link to the damage or loss suffered

Factual causation can be explained as if not for the action committed the outcome would not have
naturally occurred. It determines exactly what happened and whether someone was responsible for
the event or whether it would have occurred anyway.For example if you had not knocked an exposed
open flame lamp a fire would not have started. In this instance if the appropriate road signs were
made available and the trench covered up for public safety then peter would not have ended up in the
trench peter. It is essence the causal link between act and result or the condition sine qua non
test.

Legal causation- after determining the factual causation we must now try to determine whether the
law is involved in the action for example if they was no law in regarding starting a fire then in this
case the defendant would not have any legal responsibility to bind him or for any cause for the
defendant to be held legally responsible. Legal causation can therefore be defined as “ involving
policy considerations based on reasonableness and fairness that the act qualifies as direct cause of the
result, and that no other event independently of the act of the accused interfered with the result in
order to impute legal liability”. (law 24, 2010)
To explain the test to be applied for factual causation

A test known as condito sine qua non or “but for test” according to an article on the website
for the people this test used to decide, “but for the action” the outcome would not have
happened. “The test for factual causation is very strict; no matter how flagrant the breach of
duty, the case will be thrown out if the claimant would have endured the same damages had
the breach not happened”. (Morgan and Morgan For the people) In our case had the proper
construction notices been up and if the exposed trench had been safe for public safety by way
of covering it would peter still suffer damage or loss.

To indicate what type of causation is present and apply to the factual scenario

The causation present here is omission on the part of the city council in erecting proper road
signage and covering the trench to make it safe for public use. A similar case known as the
Cape Town Municipality v Bakkerud-case had seen the municipality neglect to cover two
potholes that resulted in two women stumbling into them although in their case it was for a
longer period. The facts remain as follows the nexus or link is the municipality omitted to
cover the trench and erect proper signage this forming the link between the act and the
damage that peter suffered as a result. The condito sine qua non test for factual causation
would once again prove causation. That in both cases a source of danger was created and had
they not omitted it and their legal obligation to provide adequate safety, the accidents would
not have happened.

Causation - Role Of Causation In The Criminal Law. (n.d.). Retrieved August 16,
2010, from http://law.jrank.org/pages/623/Causation-Role-causation-in-criminal-
law.html: <a href="http://law.jrank.org/pages/623/Causation-Role-causation-in-
criminal-law.html">Causation - Role Of Causation In The Criminal Law</a>

law 24. (2010, august 16 ). Retrieved August 16, 2010, from

http://www.law24.com/understand-your-legal-issue/law-for-the-layman.

Morgan and Morgan For the people. (n.d.). Retrieved August 16, 2010, from
http://www.forthepeople.com/factual_causation.htm:
http://www.forthepeople.com/factual_causation.htm

NAGEL, C. (2006). Commercial Law . In A. B.-K. CJ Nagel, Commercial Law third

edition. Johannesburg: Lexisnexis group.

LEBOGANG MZWIMBI 21373698