Dudley Lee v Minister for Correctional Services

Dudley Lee was incarcerated at Pollsmoor Maximum Security Prison from 1999 to 2004. He was not infected with tuberculosis (TB) when he entered prison, but contracted the disease during incarceration in June 2003. The prison was notoriously congested, with cells designed for one person housing up to three inmates. The responsible authorities were aware of the high risk of TB transmission but failed to implement adequate preventative measures as required by Standing Correctional Orders (SCOs), including proper screening of incoming inmates, isolation of infectious patients, adequate nutrition, and effective implementation of treatment protocols (DOTS). TB management at Pollsmoor was virtually non-existent, with superficial initial screening and failure to isolate inmates with TB. Mr. Lee could not identify the specific source of his TB infection. After his release in 2004, he sued the Minister for Correctional Services for delictual damages. The High Court found in his favour, declaring the respondent liable. The Supreme Court of Appeal reversed this decision, finding that Mr. Lee failed to establish causation on the but-for test, because he could not show that reasonable systemic measures would have "altogether eliminated" the risk of contagion.

• Whether the applicant established factual causation between the negligent omissions by prison authorities and his contraction of tuberculosis
• Whether the but-for test for causation should be applied flexibly in cases involving systemic omissions
• Whether the common law test for causation requires development to give effect to constitutional rights, particularly in cases where the source of infection cannot be identified
• Whether the applicant's constitutional rights under sections 12(1) and 35(2)(e) of the Constitution were violated
• Whether a claim for constitutional damages based on unlawful detention should be permitted by amendment on appeal

Majority judgment (Nkabinde J): 1. Leave to appeal granted. 2. Application to introduce new evidence under Rule 31 dismissed. 3. Application to amend particulars of claim dismissed. 4. Appeal upheld. 5. Order of Supreme Court of Appeal set aside. 6. Respondent declared liable to applicant in delict. 7. Case remitted to Western Cape High Court for determination of quantum. 8. Respondent ordered to pay applicant's costs in all courts, including costs of two counsel where applicable. Minority judgment (Cameron J): Would have remitted the matter to the trial court to consider development of the common law regarding causation in light of the judgments.

Where prison authorities have a constitutional and statutory duty to protect prisoners from disease through reasonable systemic measures, and those authorities negligently fail to implement such measures, creating conditions highly conducive to disease transmission, factual causation may be established on a balance of probabilities where the prisoner contracts the disease during incarceration, even if the specific source of infection cannot be identified. The but-for test for causation in South African delictual law should not be applied inflexibly and does not require proof that reasonable alternative measures would have altogether eliminated risk of harm. Common sense and practical reasoning, rather than rigid logic or scientific certainty, should guide the determination of probable causation. The substitution of hypothetical lawful conduct in applying the but-for test is a mental evaluative exercise to assess evidence, not a requirement for additional evidence. Where the nature of a disease (such as TB) makes it impossible to identify the precise source of infection, and the defendant's negligent conduct materially increased the risk of infection, it is legitimate to infer that the negligent conduct probably caused the harm. The constitutional rights of prisoners under sections 12(1) and 35(2)(e) of the Constitution, together with constitutional norms of accountability and responsiveness, inform the application of delictual principles regarding wrongfulness and causation in claims by prisoners against prison authorities.

The majority judgment (Nkabinde J) observed that the distinction between factual and legal causation should be maintained, and that normative considerations relating to wrongfulness and negligence should not contaminate the factual causation inquiry. The judgment noted that the development of the wrongfulness test in South African law, which now considers reasonableness of imposing liability based on policy considerations, provides an alternative mechanism to control the boundaries of delictual liability without distorting the causation inquiry. The judgment emphasized that denying recovery in cases like this would provide no legal incentive for prison authorities to reduce risk of contagion where they cannot eliminate it entirely, which would be inconsistent with constitutional values. The minority judgment (Cameron J) provided extensive obiter dicta on comparative law, particularly UK cases such as Fairchild v Glenhaven Funeral Services and Barker v Corus UK Ltd, and US cases addressing inadequacies of the but-for test in cases involving disease transmission. Cameron J suggested that South African common law should be developed to allow recovery based on negligent exposure to risk where harm eventuates, particularly in "single agent" disease cases, with possible apportionment of liability based on degree of risk exposure. Cameron J observed that the unique characteristics of TB (transmission by a single bacterium, impossibility of identifying specific source, variable latency periods) make it analogous to "single fibre" asbestos cases in UK law. Cameron J emphasized that prisoners are particularly vulnerable and that constitutional imperatives may require development of causation principles beyond what has occurred in other jurisdictions. However, Cameron J held that such development should occur through the normal court hierarchy rather than in the Constitutional Court as a court of first and last instance.

This case is significant for its treatment of causation in delictual claims, particularly in the context of systemic omissions by state institutions. The majority judgment affirms the flexibility of the but-for test for causation in South African law and rejects the mechanical application of the test that would require proof that reasonable measures would have "altogether eliminated" risk. The judgment emphasizes the constitutional duties owed to prisoners under sections 12 and 35 of the Constitution, particularly the right to conditions of detention consistent with human dignity. It reinforces constitutional norms of state accountability and responsiveness. The case has important implications for claims by prisoners and other vulnerable groups against state institutions where specific sources of harm cannot be identified but systemic failures create conditions conducive to harm. The minority judgment provides important comparative analysis of developments in UK and US law regarding causation in cases involving "single agent" diseases where traditional causation tests prove inadequate. The case highlights tensions between traditional delictual principles and constitutional imperatives to provide effective remedies for rights violations.