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. Start studying criminal law - causation and omissions. 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. The MEC for Health appealed the initial finding of the Eastern Cape High Court. Those taken by third parties those taken by the claimant themselves, and those which are acts of nature. 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”. But in McGhee v. National Coal Board,[8] the claimant worked in brick kilns and contracted dermatitis. Relatives of the drowned seamen sued. All rights reserved. After the collision but before crossing the Atlantic, the Heimgar was given a certificate of seaworthiness, authorising her to be continued in her present class without fresh record of survey, subject to permanent repairs at the owner's convenience. 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. This lifeboat capsized in the heavy seas and nine of the crew drowned. Deakin, Simon; Johnston, Angus & Markesinis, B. S. (2003). 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. A novus actus interveniens has the effect of limiting a party's liability and therefore may be a useful tool when assessing damages claims. 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. The defendant appealed to the Court of Appeal arguing that the novus's refusal to accept the blood transfusion was a novus actus interveniens breaking the chain of causation. 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. 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. 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. Factual causation is the ‘but for cause’ of a result, but for the defendant’s act, the result would not have occurred. 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 interveniens is Latin for a "new intervening act". 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 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 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. 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. A prime example of this can be found in the recent case of MEC Health, Eastern Cape v Mkhitha (1221/15) [2016] ZASCA 176. However, I may not be held liable if that damage is not of a type foreseeable as arising from my negligence. In Carslogie Steamship Co v. Royal Norwegian Government,[3] the Carslogie collided with the Heimgar and admitted liability. Causation ordinarily consists of two elements that determine whether or not a party can be held liable for the damages caused to another. Each incident produced its own stress with the first being the more serious cause which exacerbated the reaction to the second event. Thus, prior to encountering the rough weather, the Heimgar was a seaworthy vessel, capable of earning profits for her owners. medical evidence and the Post Mortem report before the court a quo. Attorney advertising. Novus Actus Interveniens Law and Legal Definition Novus actus interveniens is a Latin term which means a new intervening act. 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 … 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. ⇒ 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. This general category also includes the injured party him or herself, another third party or even an act of God. 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. If factual causation cannot be established the prosecution will fail. There are three varieties of intervening acts. 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. This is a public policy decision to overrule Wilsher and to allow asbestos claims. The case involved mesothelioma, a form of cancer contracted by the inhalation of asbestos dust. A procedure was required to ameliorate the condition, but one that carried a 1-2% risk of paralysis by 'cauda equina syndrome'. 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… It was held that the captain's action was the natural consequence of the emergency in which he was placed by the negligence of the Oropesa and, therefore, the deaths of the seamen were a direct consequence of the negligent act of the Oropesa. 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. This was a fairly radical departure from the usual test of causation. As indicated by the SCA, but for the accident the plaintiff would not have been hospitalised at all. The court a quo dismissed the special plea as both the tests for factual and legal causation were applied and found that the liability for the sequelae as suffered by the plaintiff could not be attributed to the RAF. In our law, a novus actus interveniens is an event which is, in the context of the act that was committed, abnormal, and completely independant of the acts of the accused (see S v Grotjohn 1970 (2) SA 355 (A) at 364 A; see also S v Mokgethi 1990 (1) SA 32 (A) at 40 A). 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. 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. However, when entering the hospital, the duty of care shifts. Answered by Charlotte C. • Law tutor 8348 Views Novus actus interveniens is Latin for a "new intervening act". Different tests apply to decide if the chain has been broken depending on the intervening party. 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 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. In this case, what was at issue was a criminal act by a third party. Often this is an aspect that is overlooked or only established at a much later stage during litigation. 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. The Latin words of novus actus interveniens (subsequent intervening event) recognise that something may happen after an accident which breaks the chain of causation, that is, an act of a third party, a natural event or an act by the plaintiff. A requirement for an act or omission committed after the initial wrongdoer's act to constitute a novus actus is that the secondary act was not reasonably foreseeable. It was not foreseeable that the plaintiff in this instance would have received substandard/negligent care. 140) Damages for Personal Injury: Non-Pecuniary Loss, followed by Commission Report No. If she ceases to earn a profit, it is essential to consider what caused the detention in dry dock at that time. The only requirement is that, whoever is sued must have made a material contribution to the loss or damage suffered (see Bonnington Castings Ltd v. Wardlaw[7]). 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. it was then for the employer to show that the failure to provide showers did not cause the disease. 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. Causation comprises various aspects and includes what is often seen purely as a defence in the form of novus actus interveniens. While crossing the Atlantic, the Heimgar encountered heavy weather and sustained such serious damage as to become unseaworthy and to require immediate dry docking. The defendant in the second incident argued that he did not cause Heil to suffer from PTSD because he already had that condition. ⇒ 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. It was argued that the RAF was liable, in terms of section 17(1) of the RAF Act, to compensate the plaintiff for all of her damages as a result of her injuries as these injuries were caused by the driving of the motor vehicle in question. However, when assessing novus actus in respect of legal causation, regard must be had to the aspects of policy, fairness, reasonableness and justice in order to determine whether liability for the initial wrongful act can still be imputed to the initial wrongdoer, and whether the causal chain has been broken. 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 splits the causal chain between the conduct of the original wrongdoer and the responsibility imputed to him or her as a consequence of it. 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. Held: The defendant's original conviction was upheld (i.e. 257). 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. When hearing the argument in respect of the special plea, the plaintiff's medico-legal expert testified before the court. 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. Hogan Lovells Publications | February 2017. It is an act or event that breaks the causal connection between a wrong or crime committed by the defendant and subsequent happenings. However, the interesting aspect of the Mkhitha matter is that the court found that the novus actus interveniens of the substandard medical care of the BOH was not only used to break the causal chain between the RAF and the plaintiff, but was also used as a cause of action for the plaintiff against the MEC. Only a "moderate" award of damages was therefore considered appropriate. 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. In due course, the Lords retreated from this decision. The behaviour of the accused must have caused or be directed to the particular result or event. Michael. 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. 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. All three are well-known cases as the issue of novus actus interveniens is not often raised. 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. In Wilsher v. Essex Area Health Authority there were some six possible causes for the blindness resulting in the claimant infant. Chester is a case of ‘simple facts and complex causation’. The claimant was later an innocent victim when shot in the same leg by some robbers and the leg was amputated. o s.3, Criminal Justice Act, 1990 –formerly known as capital murder. 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. This page was last edited on 26 September 2020, at 06:09. Since the claimant's disability would have been permanent, damages were assessed as if the second event had not occurred. A full and lengthy explanation of both elements can be found in the case of Groenewald v Groenewald 1998 (2) SA 1106 SCA. [8] That is a question of public policy, and not one of causation. The new event relieves the defendant from responsibility for the happenings. An hour later, he set off with sixteen of the crew to go to the Oropesa in another lifeboat. The plaintiff was a passenger in a motor vehicle that was involved in a collision on 23 June 2011. Now, Fairchild v Glenhaven Funeral Services Ltd[9] seems to reinstate the majority McGhee test by allowing a claimant to succeed against more than one employer by proving that any one might have increased the risk of disease without actually proving exactly when or where the exposure took place. Most crimes have a clear result. "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. 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… 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. 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. 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. 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. o Novus actus interveniens - applicable law discussed. The Manchester Regiment later sank. 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, the loss of earnings at that time was not caused by the collision. 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. 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. 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. 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, … The causal chain cannot continue infinitely. 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). 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. 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. 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. The question was whether the action of the captain in leaving the Manchester Regiment broke the chain. he was found to be guilty of manslaughter). 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. 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 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. Worsens the effects to be seen if cases that 'break the chain has been broken depending on the basis the! 'Cauda equina syndrome ' cause of the burden of proof and claimed that McGhee not! Duty that materially increases the risk was eventuated and Miss Chester was left paralysed fact break the has! Upheld ( i.e then for the damages caused to another of Injury negligence... 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