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. 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. A novus actus interveniens is a new intervening act which breaks the chain of causation. it was then for the employer to show that the failure to provide showers did not cause the disease. As a novus actus is an "independent" intervening act, it can be occasioned by anyone or anything other than the initial wrongdoer. 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. 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. The question was whether the action of the captain in leaving the Manchester Regiment broke the chain. Formulated more completely, according to this approach X's act is regarded in law as the cause of Y's death if it is a factual cause of the death and there is no novus actus interveniens between X's act and Y's death (see S v Counter 2003 (1) SACR 143 (SCA)). 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. 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, … 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". This must be distinguished from contributory negligence. 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. o Cause of death an abscess in the brain as a result of an infection. These elements are factual causation and legal causation. Different tests apply to decide if the chain has been broken depending on the intervening party. Novus Actus Interveniens Law and Legal Definition Novus actus interveniens is a Latin term which means a new intervening act. Each incident produced its own stress with the first being the more serious cause which exacerbated the reaction to the second event. 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. an innocent and unconscious act is not a novus actus interveniens (child feeding baby) Holland. This then led the court to apply the necessary test to determine whether this substandard medical care afforded to the plaintiff was a novus actus. 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's a new intervening act. "Increasing The Price Of Pain: Damages: The Law Commission And Heil v Rankin". 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. 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 ‘but for’ test, as applied by Lord Denning in Cork v Kirby Maclean Ltd (1952), should be covered. Held: The defendant's original conviction was upheld (i.e. 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. 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. Most crimes have a clear result. The case involved mesothelioma, a form of cancer contracted by the inhalation of asbestos dust. This lifeboat capsized in the heavy seas and nine of the crew drowned. ... A reasonable act of self-preservation is not a novus actus interveniens. The SCA dismissed the appeal on the basis that the special plea was bad and the appeal had no prospect of success. 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. Loosely translated it means ‘new intervening act’. 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. If factual causation cannot be established the prosecution will fail. medical evidence and the Post Mortem report before the court a quo. She was held fit to carry dry and perishable cargoes. The legal lingo is that it’s a novus actus interveniens (if you’re a Latin fan). A procedure was required to ameliorate the condition, but one that carried a 1-2% risk of paralysis by 'cauda equina syndrome'. This apportions liability for underlying cause and exacerbating cause in a way that was not possible in the Baker case. Causation ordinarily consists of two elements that determine whether or not a party can be held liable for the damages caused to another. 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. 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. 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. 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. 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. Often this is an aspect that is overlooked or only established at a much later stage during litigation. 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. 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. All rights reserved. Answered by Charlotte C. • Law tutor 8348 Views When hearing the argument in respect of the special plea, the plaintiff's medico-legal expert testified before the court. The Lords held that a breach of duty that materially increases the risk of injury proves negligence. 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. 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… The MEC for Health appealed the initial finding of the Eastern Cape High Court. 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. All that the second incident did was to cause a temporary exacerbation of a pre-existing condition. 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. There are three varieties of intervening acts. The Manchester Regiment later sank. 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. Temporary repairs were effected with permanent repairs to be carried out later in the United States. In this case, what was at issue was a criminal act by a third party. 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. The question was not whether there was new negligence, but whether there was a new cause of action. he was found to be guilty of manslaughter). The plaintiff was a passenger in a motor vehicle that was involved in a collision on 23 June 2011. A novus actus is not confined to either factual or legal causation only, and can interrupt the causal chain at either point. 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. The court assessed factual causation and found that despite the fact that the plaintiff would not have sustained any injuries but for the collision, if the plaintiff had received reasonable medical treatment (as can be expect from a hospital) the sequelae as experienced by the plaintiff as a result of the collision only, would have been much less severe. 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. 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". However, another element of causation that is often overlooked is that of novus actus interveniens. Factual causation is the ‘but for cause’ of a result, but for the defendant’s act, the result would not have occurred. Lastly, in the concept of novus actus interveniens, a distinction is crucial as omissions have less causal potency than acts. A novus actus interveniens has the effect of limiting a party's liability and therefore may be a useful tool when assessing damages claims. 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. This general category also includes the injured party him or herself, another third party or even an act of God. 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. 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. Lord Bridge expressly disapproved the reversal of the burden of proof and claimed that McGhee did not represent new law. Similarly, in a fraud case, it’s normally quite straightforward to show that a misrepresentation on the part of the accused led to the victim losing out in some way. 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. 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 novus actus therefore disrupts the "directness" aspect of the initial act and the subjective test of legal causation cannot be fulfilled. Hogan Lovells Publications | February 2017. 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. The claimant is not obliged to sue the defendant whose breach of duty is alleged to be the main cause of the damage. 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. A novus actus … 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. 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. An hour later, he set off with sixteen of the crew to go to the Oropesa in another lifeboat. Prior results do not guarantee a similar outcome. 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 … The defendant in the second incident argued that he did not cause Heil to suffer from PTSD because he already had that condition. 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. Learn vocabulary, terms, and more with flashcards, games, and other study tools. 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. Thus, prior to encountering the rough weather, the Heimgar was a seaworthy vessel, capable of earning profits for her owners. Since the claimant's disability would have been permanent, damages were assessed as if the second event had not occurred. 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. 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. 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. 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. 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. Deakin, Simon; Johnston, Angus & Markesinis, B. S. (2003). The doctrine of novus actus interveniens used in causation to establish the liability of the principle offender for a prohibited result. He alleged that the failure to provide showers had caused or contributed to the disease. While the Mkhitha matter is the most recent decision in terms of novus actus interveniens, it is certainly not the only one. 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. 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. Michael. 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 … Only a "moderate" award of damages was therefore considered appropriate. 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. This is a public policy decision to overrule Wilsher and to allow asbestos claims. Relatives of the drowned seamen sued. A full and lengthy explanation of both elements can be found in the case of Groenewald v Groenewald 1998 (2) SA 1106 SCA. 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. Start studying criminal law - causation and omissions. 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. The surgery was performed without negligence. 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. o Novus actus interveniens - applicable law discussed. In Wilsher v. Essex Area Health Authority there were some six possible causes for the blindness resulting in the claimant infant. ⇒ 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 she ceases to earn a profit, it is essential to consider what caused the detention in dry dock at that time. The RAF cannot be held liable for an unforeseeable occurrence as a result of the negligence of another. However, I may not be held liable if that damage is not of a type foreseeable as arising from my negligence. 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. 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. 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. 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”. © 2020 Hogan Lovells. 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. 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 hospital itself then had the duty of care to provide the plaintiff with reasonable medical care. He was involved in a second incident in 1993. die of the wound 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 SCA also had regard to causation, specifically factual (the sine qua non test) and legal causation (sufficiently closely or directly linked). Chester is a case of ‘simple facts and complex causation’. Often the most difficult aspects of the Aquilian Action to understand are those of causation. 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. Thus, the loss of earnings at that time was not caused by the collision. 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. 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 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”. All three are well-known cases as the issue of novus actus interveniens is not often raised. 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. 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. But in McGhee v. National Coal Board,[8] the claimant worked in brick kilns and contracted dermatitis. 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. Heil was a police officer who was involved in a traumatic shooting incident in 1987. 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. Novus actus interveniens in medical negligence cases is when an unforeseeable event occurs after a neglectful act which intervenes and worsens the effects. The case of Chester v. Afshar suggested that the Fairchild ratio could be extended to beyond industrial disease cases. 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, 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. In due course, the Lords retreated from this decision. 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 causal chain cannot continue infinitely. 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. CAUSATION: In order to establish liability, actus reus and mens rea itself is not sufficient. 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. 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. It was not foreseeable that the plaintiff in this instance would have received substandard/negligent care. 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. 140) Damages for Personal Injury: Non-Pecuniary Loss, followed by Commission Report No. 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. However the risk was eventuated and Miss Chester was left paralysed. Miss Chester suffered from back pain for which she sought the advice of the eminent neurosurgeon Mr. Afshar. Novus actus interveniens is Latin for a "new intervening act". In Carslogie Steamship Co v. Royal Norwegian Government,[3] the Carslogie collided with the Heimgar and admitted liability. The plaintiff would not have suffered from the current sequelae at all had she been provided with reasonable medical care. This page was last edited on 26 September 2020, at 06:09. 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. 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) A prime example of this can be found in the recent case of MEC Health, Eastern Cape v Mkhitha (1221/15) [2016] ZASCA 176. While crossing the Atlantic, the Heimgar encountered heavy weather and sustained such serious damage as to become unseaworthy and to require immediate dry docking. [8] That is a question of public policy, and not one of causation. 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). 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