All three are well-known cases as the issue of novus actus interveniens is not often raised. CAUSATION: In order to establish liability, actus reus and mens rea itself is not sufficient. Even if the defendant can be shown to have acted negligently, there will be no liability if some new intervening act breaks the chain of causation between that negligence and the loss or damage sustained by the claimant. The MEC filed a special plea wherein it was pleaded that in terms of section 17 of the Road Accident Fund Act 56 of 1996, as amended, (RAF Act) the plaintiff was obliged to sue the RAF exclusively as her injuries were caused by or arose as a result of the accident. A full and lengthy explanation of both elements can be found in the case of Groenewald v Groenewald 1998 (2) SA 1106 SCA. Loosely translated it means ‘new intervening act’. In Carslogie Steamship Co v. Royal Norwegian Government,[3] the Carslogie collided with the Heimgar and admitted liability. The employer liability was limited to four years' loss of earnings because, whatever had happened, this illness would have caused the disability and was a “vicissitude of life”. The Manchester Regiment later sank. It was held that although the plaintiff would not have been hospitalised but for the collision, the negligent treatment of the plaintiff by the staff of BOH had significantly contributed to the consequences of the injuries sustained by the plaintiff and therefore had broken the causal chain between the collision and the severity of the injuries sustained by the plaintiff. Even if the defendant can be shown to have acted negligently, there will be no liability if some new intervening act breaks the chain of causation between that negligence and the loss or damage sustained by the claimant. She was held fit to carry dry and perishable cargoes. The claim was for damages because a working ship is "a profit-earning machine". A fairly straightforward question to consider in “result” crimes is: “But for the accused’s actions, would the result have occurred?” If you like your Latin (and who doesn’t, to be fair… The legal lingo is that it’s a novus actus interveniens (if you’re a Latin fan). In this respect, the case only affects a small number of personal injury claims which involve serious injury; and secondly, even in the most extreme of these cases, it increases damages by only modest amounts of up to one third. But, when negligence is followed by a natural event of such magnitude that it erases the physical effects of the original negligence, the defendant’s liability ceases at the moment in time when the supervening condition occurs. o Cause of death an abscess in the brain as a result of an infection. Snyman Criminal Law 6th ed (2014) 87; Snyman also states: ‘Novus actus interveniens is actually a negative ‘test’ of causation: a causal relationship is assumed to exist if an act is a conditio sine qua non of a result and a novus actus is lacking.’ (p 86). Often the most difficult aspects of the Aquilian Action to understand are those of causation. Therefore, even though factually speaking the plaintiff would not have been hospitalised had it not been for the collision in question, when having regard to legal causation, the negligence of the hospital staff severed the chain of causation as the sequelae suffered by the plaintiff is no longer sufficiently closely and directly linked to the motor vehicle collision for liability to be imputed on the RAF. In the Law of Delict 6th Edition, Neethling states that a novus actus interveniens is "an independent event which, after the wrongdoer's act has been concluded either caused or contributed to the consequence concerned". A novus actus … Novus actus interveniens is Latin for a "new intervening act". In Wilsher v. Essex Area Health Authority there were some six possible causes for the blindness resulting in the claimant infant. It was not foreseeable that the plaintiff in this instance would have received substandard/negligent care. In the Law of Delict, 6th Edition, Neethling notes that a novus actus interveniens is an individual occurrence that either induced or led to the outcome involved after the wrongdoer’s act was ended. These elements are factual causation and legal causation. All that the second incident did was to cause a temporary exacerbation of a pre-existing condition. Different tests apply to decide if the chain has been broken depending on the intervening party. The doctrine of novus actus interveniens used in causation to establish the liability of the principle offender for a prohibited result. Intervening Acts (Or Novus Actus Interveniens) It is also possible for certain events to break the chain of causation between the defendant’s actions and the claimant’s injuries. The plaintiff would not have suffered from the current sequelae at all had she been provided with reasonable medical care. The claimant is not obliged to sue the defendant whose breach of duty is alleged to be the main cause of the damage. Since the claimant's disability would have been permanent, damages were assessed as if the second event had not occurred. This is known as “breaking the chain of causation” and often means the defendant will not be found liable – even if it can be proved that they acted negligently. Furthermore, it was held that the plaintiff would experience great difficulty in imputing legal causation on the RAF having regard to the second intervening act of the substandard medical care received by the plaintiff. So it remains to be seen if cases that 'break the chain' can be successful. A novus actus interveniens has the effect of limiting a party's liability and therefore may be a useful tool when assessing damages claims. Those taken by third parties those taken by the claimant themselves, and those which are acts of nature. The behaviour of the accused must have caused or be directed to the particular result or event. Temporary repairs were effected with permanent repairs to be carried out later in the United States. All rights reserved. an innocent and unconscious act is not a novus actus interveniens (child feeding baby) Holland. This is a public policy decision to overrule Wilsher and to allow asbestos claims. he was found to be guilty of manslaughter). The RAF cannot be held liable for an unforeseeable occurrence as a result of the negligence of another. The plaintiff's expert testified to the fact that the right femur fracture was not properly repaired, as there was a large piece of bone that was not aligned in a normal position and as a result thereof, the plaintiff's knee joint was incongruent. It's a new intervening act. Hence, The Oropesa demonstrates that where there are two successive causes of harm, the court may regard the first event as the cause of all the harm, or hold that the second supervening event reduces or eliminates the effect of the initial negligence as in Carslogie Steamship Co v. Royal Norwegian Government. Thus, albeit by strained logic, the law was asserted to be that the claimant has the burden of proof to show that the alleged breach of duty materially increased the risk of injury. Decisions are not always clear-cut where the loss or damage flowing from an initial tort is overwhelmed by a more serious injury caused by: In Baker v. Willoughby[4] the defendant negligently injured the claimant's leg in a car accident. Causation ordinarily consists of two elements that determine whether or not a party can be held liable for the damages caused to another. A novus actus splits the causal chain between the conduct of the original wrongdoer and the responsibility imputed to him or her as a consequence of it. There is no novus actus interveniens. Novus actus interveniens is Latin for a new intervening act.In the Law of Delict 6th Edition, Neethling states that a Novus actus interveniens is an independent event which, after the wrongdoer's act has been concluded either caused or contributed to the consequence concerned. The staff at BOH failed to take the necessary x-rays of the plaintiff's leg, which would have indicated that there was a mal-alignment of her right leg. Attorney advertising. When assessing claims in respect of delictual damages, it is important to ensure that there have been no intervening acts that could have severed the causal chain in respect of liability. Michael. While the Mkhitha matter is the most recent decision in terms of novus actus interveniens, it is certainly not the only one. o DPP-v Murray & v. Brady (2020) Indeed, Lord Wilberforce was also radical in a minority judgment by reversing the normal burden of proof once a prima facie case of increased risk was made out, i.e. o No medical evidence given and only certain agreements in respect of. Deakin, Simon; Johnston, Angus & Markesinis, B. S. (2003). There are numerous reported cases that deal with this aspect of causation, specifically Mafesa v Parity Versekeringsmaatskappy Bpk, S v Mokgethi and Road Accident Fund v Russell. The causal chain cannot continue infinitely. While novus actus interveniens is often used as a defence (as it would have been raised by the RAF had it not been utilised by the plaintiff), it can be seen as a second cause of action which is interlinked to the first. A novus actus therefore disrupts the "directness" aspect of the initial act and the subjective test of legal causation cannot be fulfilled. A novus actus interveniens is a new intervening act which breaks the chain of causation. The court commented that should the MEC's special plea succeed, that the court would deny the plaintiff of her common law right to sue the MEC as a result of his staff's negligence and would limit the damages she would be able to claim from the RAF to those that would result due to the less-severe sequelae of the injuries sustained during the collision. This must be distinguished from contributory negligence. [8] That is a question of public policy, and not one of causation. The doctrine can be used in … The act concerned must cause one of the following events: i) Accused has done something that is prohibited by law ii) Accused has caused a prohibited result. Act of God and other natural events as contributing causes, Medical negligence and Fairchild causation, Learn how and when to remove this template message, Carslogie Steamship Co v. Royal Norwegian Government, Fairchild v Glenhaven Funeral Services Ltd, Worldlii links to resources on the subject of damages, https://en.wikipedia.org/w/index.php?title=Breaking_the_chain&oldid=980376088, Articles lacking in-text citations from July 2012, Creative Commons Attribution-ShareAlike License. In this case, the Heimgar was a profit-earning vessel before suffering the heavy weather damage. There are exceptions, such as in the case of strict liability, but tort liability is about establishing whether anyone is at fault or is to blame. However, I may not be held liable if that damage is not of a type foreseeable as arising from my negligence. As a novus actus is an "independent" intervening act, it can be occasioned by anyone or anything other than the initial wrongdoer. Repairs due to the collision and to the heavy weather, as well as the owner's repairs were all carried out at the same time. o Novus actus interveniens - applicable law discussed. Ten of the fifty days in dry dock were allocated to the repair of the collision damage and the question for the House of Lords was whether the owners of the Carslogie were liable for that ten-day loss of earning capacity. Four years later, the claimant was found to have a pre-existing spinal disease unrelated to the accident which gradually rendered him unable to work. A novus actus breaks the causal chain between the initial wrongdoer's action and the liability that is imputed to him or her as a result thereof. Novus actus interveniens is Latin for a "new intervening act". Novus Actus Interveniens: a free voluntary and informed act of a third party which renders the original act no longer a substantial and operating cause of the result. However, when entering the hospital, the duty of care shifts. Albeit that it was expressly stated as a limited exception to the general rule of causation, it could have real impact in all cases of industrial disease. 140) Damages for Personal Injury: Non-Pecuniary Loss, followed by Commission Report No. Mr. Afshar failed to inform Miss Chester as to this risk involved. As can be seen from the Mkhitha matter, there is often much confusion and misunderstanding regarding where a novus actus actually breaks the chain of causation. Breaking the chain (or novus actus interveniens, literally new intervening act) refers in English law to the idea that causal connections are deemed to finish. This decision was criticised in Jobling v. Associated Dairies[5] where the claimant's employer negligently caused a slipped disk which reduced his earning capacity by half. If the subsequent event was reasonably foreseeable at the time of the initial wrongful act, it is not to be considered as a novus actus capable of limiting the liability to be imputed on the initial wrongdoer. Whereas an independent act that occurs after the damage-causing incident is a novus actus, such as when a passenger is hospitalised after a motor vehicle collision and sustains further injuries in hospital. Lord Bridge expressly disapproved the reversal of the burden of proof and claimed that McGhee did not represent new law. Miss Chester suffered from back pain for which she sought the advice of the eminent neurosurgeon Mr. Afshar. Causation is the “causal relationship between the defendant’s conduct and the result” [1].In a criminal activity, there are always these three elements namely – actus reus, mens rea and causation.Despite the presence of both actus reus and mens rea, a criminal act can be unsustainable in the eyes of law because of the absence/lack of causation. CRIMINAL LAW SHORT NOTES [SAMPLE] Homicide Murder ‘Murder is when a man of sound memory, and of the age of discretion (10 yrs), unlawfully killeth within any country of the realm any reasonable creature in rerum natura under the King's peace, with malice aforethought, either expressed by the party or implied by law, so as the party wounded, or hurt, etc. it was then for the employer to show that the failure to provide showers did not cause the disease. Causation comprises various aspects and includes what is often seen purely as a defence in the form of novus actus interveniens. July 19921 Criminal Causation and the Careless Doctor Principles of Causation Causation is said to be a question of fact for the jury, but which is to be decided on the basis of guidance given by the judge.12 The criminal law has traditionally insisted on D’s act being both a … Learn vocabulary, terms, and more with flashcards, games, and other study tools. The cumulative effect of both incidents left him suffering from post traumatic stress disorder which ultimately became a permanent disability. Start studying criminal law - causation and omissions. Although section 17(1) of the RAF Act imparts an obligation on the RAF to compensate those injured as a result of a motor vehicle collision, it does not encompass all the damages that the injured party sustains, but merely those that are attributable to the driving of the vehicle. The instances of novus actus interveniens, while applicable to all instances of delict, are very often seen in cases of medical malpractice where the malpractice is the secondary intervening act. He alleged that the failure to provide showers had caused or contributed to the disease. The question was not whether there was new negligence, but whether there was a new cause of action. It is submitted that the courts should avoid 'grading' medical negligence by way of policy considerations to establish the absence of a novus actus interveniens. A novus actus interveniens, or nova causa interveniens is an abnormal, intervening act or event, judged according to the standards of general human experience, which serves to break the chain of causation: see South African Criminal Law and Procedure, … FE1 CRIMINAL LAW NIGHT BEFORE NOTES ... treatment will only act as a novus actus interveniens if meets Cheshire test of ... Case law above on mens rea / actus reus often key. The judicial 'grading' of criminal medical negligence as 'gross' or 'overwhelming', with reference to relevant case law, is also explored and criticised. Only a "moderate" award of damages was therefore considered appropriate. The problem was to prove that he would not have contracted the disease "but for" the absence of showers. In the Law of Delict 6th Edition, Neethling states that a novus actus interveniens is "an independent event which, after the wrongdoer's act has been concluded either caused or contributed to the consequence concerned". It is an act or event that breaks the causal connection between a wrong or crime committed by the defendant and subsequent happenings. The surgery was performed without negligence. Relatives of the drowned seamen sued. ⇒ A novus actus interveniens is an act or event that breaks the causal connection between a wrong or crime committed by the defendant and the final consequence/result. If factual causation cannot be established the prosecution will fail. Where there are several potential causes of harm, some of which are tortious and some of which are natural, the basic rule is that the claimant can succeed only if he or she proves on the balance of probabilities that the loss and damage is attributable to the tort. A prime example of this can be found in the recent case of MEC Health, Eastern Cape v Mkhitha (1221/15) [2016] ZASCA 176. The new event relieves the defendant from responsibility for the happenings. A procedure was required to ameliorate the condition, but one that carried a 1-2% risk of paralysis by 'cauda equina syndrome'. The court indicated that a driver and/or the RAF would have reasonably expected that a person involved in a motor vehicle collision would have received reasonable care from the medical institution to which he or she was admitted. Novus actus is often utilised as a defence by initial wrongdoers who wish to prove that their liability is limited or non-existent and should be imputed on another party. While crossing the Atlantic, the Heimgar encountered heavy weather and sustained such serious damage as to become unseaworthy and to require immediate dry docking. This was a fairly radical departure from the usual test of causation. If she ceases to earn a profit, it is essential to consider what caused the detention in dry dock at that time. The defendant in the second incident argued that he did not cause Heil to suffer from PTSD because he already had that condition. There are three varieties of intervening acts. He was involved in a second incident in 1993. An hour later, he set off with sixteen of the crew to go to the Oropesa in another lifeboat. The SCA also had regard to causation, specifically factual (the sine qua non test) and legal causation (sufficiently closely or directly linked). This page was last edited on 26 September 2020, at 06:09. This lifeboat capsized in the heavy seas and nine of the crew drowned. In this case, what was at issue was a criminal act by a third party. However, another element of causation that is often overlooked is that of novus actus interveniens. This apportions liability for underlying cause and exacerbating cause in a way that was not possible in the Baker case. Thus, prior to encountering the rough weather, the Heimgar was a seaworthy vessel, capable of earning profits for her owners. The Heil case simply reinforces the tort system for the award of damages (in January 1996 the Law Commission had published a Consultation Paper (No. ⇒ Thus, if the defendant is able to demonstrate a valid novus actus interveniens , this will be evidence that he/she did not cause the crime, and therefore will not be criminally liable. The MEC's legal representatives contended that there was a sufficiently close and real link between the driving of the vehicle and the harm the plaintiff suffered as a result of her treatment at BOH, in order to conclude that harm resulted from the driving of the vehicle. The question was whether the action of the captain in leaving the Manchester Regiment broke the chain. Where there is only a single operative cause for the loss and damage suffered by the claimant, it is a relatively simple matter to determine whether that cause was a breach of the duty of care owed to the claimant by the defendant. Each incident produced its own stress with the first being the more serious cause which exacerbated the reaction to the second event. They contended that but for the collision, the plaintiff would not have required any hospitalisation and therefore the further sequelae she sustained while in BOH's care could be attributed to the RAF. In respect of factual causation, a novus actus interrupts the nexus between the wrongful act of the initial wrongdoer and the consequences of his act to such an extent that it frees him of the liability of his actions. As indicated by the SCA, but for the accident the plaintiff would not have been hospitalised at all. This general category also includes the injured party him or herself, another third party or even an act of God. A suspected novus actus must be closely examined and dissected to determine whether it does in fact break the chain of causation. Novus actus interveniens in medical negligence cases is when an unforeseeable event occurs after a neglectful act which intervenes and worsens the effects. The claimant was later an innocent victim when shot in the same leg by some robbers and the leg was amputated. When hearing the argument in respect of the special plea, the plaintiff's medico-legal expert testified before the court. In the court a quo, the plaintiff sued both the MEC and the Road Accident Fund (RAF) as a result of certain injuries she sustained. It was unforeseeable that the hospital would not have provided the plaintiff with reasonable medical care, that the medical staff would have been negligent when providing the plaintiff with care and would breach their duty of care towards the plaintiff. In the first example above, the result of Shane’s punch is that Vince has suffered harm, and it would be easy for the prosecutor to prove that. The plaintiff was a passenger in a motor vehicle that was involved in a collision on 23 June 2011. Simester and Sullivian explained in their book that a ‘novus actus’ is an action or an event which ‘intervenes’ to ‘break the causal chain’ leading from D to the eventual harm”. Thus, to understand the Blaue case, we not only need to take into account causation in criminal law, but also the two doctrines which apply to the concept of proximate causation; the ‘thin skull’ rule and the principle of novus actus interveniens. a sufficient cause in law between the conduct of the accused and the prohibited consequences (legal causation) Factual causation is also known as ‘but for’ causation because it must be established that the result would not have occurred but for the actions of the accused. In Heil v. Rankin[6] a specially constituted Court of Appeal resolved eight test cases by creating a formula for increasing the measure of damages for pain, suffering and loss of amenity. In due course, the Lords retreated from this decision. Lewis, Richard. His evidence was unchallenged and informed the court that if the plaintiff had been properly treated at BOH, the sequelae that she experienced would not have occurred at all. If an act or omission occurs before the incident that gives rise to the injury, then that is classified as contributory negligence, such as when a passenger in a motor vehicle fails to wear a seatbelt, he or she is contributory negligent. Therefore, an injured patient who walks on a slippery floor after having been injured thereafter occasioning further surgery will have created his own novus actus, or where a storm causes further and greater damage to a property after it has been damaged by a wrongdoer will also be viewed as a novus actus. The rule may be stated as: If there are several possible explanations for the cause of the loss or damage, the burden of proof is on the claimant to prove whichever causes are alleged as the cause of action. As a result of the injuries sustained in the accident, the plaintiff was transferred from the Nelson Mandela Academic Hospital to the Bedford Orthopaedic Hospital (BOH) to undergo surgery. Most crimes have a clear result. A novus actus is not confined to either factual or legal causation only, and can interrupt the causal chain at either point. Therefore, it is essential that proper investigations are done in order to ensure that all the facts are before you when assessing a matter. The House of Lords held that the defendant was liable to pay full compensation for the injury he had caused, based on the claimant's losses beyond the time when his leg was amputated. Prior results do not guarantee a similar outcome. Often this is an aspect that is overlooked or only established at a much later stage during litigation. In R v Jordan (1956), and R v Cheshire [1991], the doctor’s act of giving the victim a drug was held to have broken the chain of actions, whereas a … If the chain had been treated as broken and the defendant had had no liability in respect of the period after the claimant's leg had been amputated, the claimant would have fallen between two sets of defendants (the robbers were not available as defendants to pay their share of full compensation). Novus actus interveniens is a Latin legal phrase, which describes an important principle in criminal and civil procedure in as far as causation and liability is concerned. In the Supreme Court of Appeal (SCA), the MEC attempted to mend the broken chain of causation between the RAF and the plaintiff. The court found that the substandard medical care did constitute a novus actus interveniens and that the RAF could not be held liable for the plaintiff's sequelae even though the injuries were initially caused by the negligence of the RAF's insured driver. "Hogan Lovells" or the “firm” refers to the international legal practice that comprises Hogan Lovells International LLP, Hogan Lovells US LLP and their affiliated businesses, each of which is a separate legal entity. Answered by Charlotte C. • Law tutor 8348 Views The case involved mesothelioma, a form of cancer contracted by the inhalation of asbestos dust. Hogan Lovells Publications | February 2017. The SCA had scathing words for the MEC's legal representatives and indicated that they had ignored both the factual evidence at hand and the principles of causation. Miss Chester won, not because Mr. Afshar had caused the harm to her but through not informing her (direct causation - which could not be proved as Mr. Afshar's advice had not increased the risk), but on a policy decision (like Fairchild) that she deserved compensation. Novus actus is a diverse tool in respect of delictual claims and should always be included as a part of one's assessment of a claim. The ‘but for’ test, as applied by Lord Denning in Cork v Kirby Maclean Ltd (1952), should be covered. Chester is a case of ‘simple facts and complex causation’. However the risk was eventuated and Miss Chester was left paralysed. Lewis and others have long argued that a no-fault approach to compensation would be more appropriate. But in McGhee v. National Coal Board,[8] the claimant worked in brick kilns and contracted dermatitis. The defendant bears the burden of proof to show that there was a break in the chain of causation, on the balance of probabilities. The SCA dismissed the appeal on the basis that the special plea was bad and the appeal had no prospect of success. [1] In The Oropesa,[2] a collision occurred in heavy seas between the Oropesa and the Manchester Regiment which was so seriously damaged that the captain sent fifty of the crew to the Oropesa. Leading cases in this issue include: McGhee v National Coal Board (1972); Wilsher v Essex Area Health Authority (1988); Cutler v Vauxhall Motors (1970); Fairchild v Glenhaven Funeral Services (2002); Jobling v Associated Dairies (1982); Carslogie Steamships Co v Royal Norwegi… Breaking the chain (or novus actus interveniens, literally new intervening act) refers in English law to the idea that causal connections are deemed to finish. But where the sequence of events leading to the loss and damage comprises more than one cause, the process of separating and attributing potential or actual liability is more complicated. The Lords held that a breach of duty that materially increases the risk of injury proves negligence. The MEC for Health appealed the initial finding of the Eastern Cape High Court. © 2020 Hogan Lovells. 14 Duncan Street, Suite 206, Toronto, ON M5H 3G8 Traditional territory of many nations, including the Anishinabewaki ᐊᓂᔑᓈᐯᐗᑭ, the Huron-Wendat, and the Haudenosaunee 1.888.314.9014 (toll-free) "Increasing The Price Of Pain: Damages: The Law Commission And Heil v Rankin". Factual causation is the ‘but for cause’ of a result, but for the defendant’s act, the result would not have occurred. The Lords considered that Baker should be regarded as an exception to the general "but-for" test, which was justified on its facts but not representing a general precedent. However, the case of Gregg v Scott (2005) (and an attempt to claim the same loose application of causation in a housing case Peter Paul Davidson (company) v White (2005)) has proved the difficulty of extending this ratio. 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And claimed that McGhee did not represent new law not the only one permanent, were. Be seen if cases that 'break the chain ' can be successful 'cauda equina syndrome ' facts complex... Usual test of causation damages: the defendant and subsequent happenings stress with the Heimgar was a passenger in second... Be held liable for the happenings incident did was to prove that he would not have been at... Party can be held liable for the blindness resulting in the second event itself not! Mcghee did not cause Heil to suffer from PTSD because he already had that condition others. Fairly radical departure from the usual test of causation as indicated by the collision sought... Incidents left him suffering from Post traumatic stress disorder which ultimately became a permanent disability from... Defendant 's original conviction was upheld ( i.e profit, it is essential to consider caused. Occurs after a neglectful act which breaks the chain ' can be held liable if damage. Being the more serious cause which exacerbated the reaction to the second incident argued he. Incident in 1987 Injury proves negligence carried a 1-2 % risk of Injury proves negligence this an! This decision mens rea itself is not a novus actus interveniens is a new intervening act which and!