Revel Without a Cause – Delictual Liability After Lee?
Author Malcolm Wallis
Affiliations: Judge of the Supreme Court of Appeal
Source: South African Law Journal, Volume 136 Number 1, May 2019, p. 165 – 190
The inability of science to give reasonably definitive answers to many questions of the aetiology of disease and to identify the source of infection poses intractable problems for courts in dealing with questions of causation. These problems came to the fore in Lee v Minister of Correctional Services 2013 (2) SA 144 (CC). The article analyses the various judgments and concludes that, while the decision ultimately leaves the law unchanged it has generated uncertainty about the proper approach to causation. It highlights the impact that possible changes in approach have to the underlying principles of the law of delict and the onus of proof and the difficulties that have arisen in the United Kingdom as a result of judgments creating an exception to conventional principles of causation in relation to industrial diseases.