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. Temporary repairs were effected with permanent repairs to be carried out later in the United States. As a result thereof, the leg healed with a 15 degree angulation, which she alleged was as a result of the hospital's negligence. He was involved in a second incident in 1993. So it remains to be seen if cases that 'break the chain' can be successful. 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. 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. A full and lengthy explanation of both elements can be found in the case of Groenewald v Groenewald 1998 (2) SA 1106 SCA. 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 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. 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, the loss of earnings at that time was not caused by the collision. Miss Chester suffered from back pain for which she sought the advice of the eminent neurosurgeon Mr. Afshar. However, I may not be held liable if that damage is not of a type foreseeable as arising from my negligence. Each incident produced its own stress with the first being the more serious cause which exacerbated the reaction to the second event. 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. Mr. Afshar failed to inform Miss Chester as to this risk involved. 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. While the Mkhitha matter is the most recent decision in terms of novus actus interveniens, it is certainly not the only one. Heil was a police officer who was involved in a traumatic shooting incident in 1987. 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. 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. These elements are factual causation and legal causation. o Cause of death an abscess in the brain as a result of an infection. 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 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. 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. 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 SCA also had regard to causation, specifically factual (the sine qua non test) and legal causation (sufficiently closely or directly linked). 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. However, another element of causation that is often overlooked is that of novus actus interveniens. Novus Actus Interveniens Law and Legal Definition Novus actus interveniens is a Latin term which means a new intervening act. Michael. 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 plaintiff was a passenger in a motor vehicle that was involved in a collision on 23 June 2011. The judicial 'grading' of criminal medical negligence as 'gross' or 'overwhelming', with reference to relevant case law, is also explored and criticised. Since the claimant's disability would have been permanent, damages were assessed as if the second event had not occurred. ⇒ 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. 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. 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. There are three varieties of intervening acts. The defendant bears the burden of proof to show that there was a break in the chain of causation, on the balance of probabilities. 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. 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. 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 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. "Increasing The Price Of Pain: Damages: The Law Commission And Heil v Rankin". 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. 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. Loosely translated it means ‘new intervening act’. 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. 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. He alleged that the failure to provide showers had caused or contributed to the 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. "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. The cumulative effect of both incidents left him suffering from post traumatic stress disorder which ultimately became a permanent disability. But in McGhee v. National Coal Board,[8] the claimant worked in brick kilns and contracted dermatitis. In this case, what was at issue was a criminal act by a third party. This general category also includes the injured party him or herself, another third party or even an act of God. There is no novus actus interveniens. 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)). In this case, the Heimgar was a profit-earning vessel before suffering the heavy weather damage. 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. All three are well-known cases as the issue of novus actus interveniens is not often raised. The problem was to prove that he would not have contracted the disease "but for" the absence of showers. he was found to be guilty of manslaughter). 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. 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. The doctrine can be used in … medical evidence and the Post Mortem report before the court a quo. 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. 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). o s.3, Criminal Justice Act, 1990 –formerly known as capital murder. 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 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. She was held fit to carry dry and perishable cargoes. Often the most difficult aspects of the Aquilian Action to understand are those of causation. 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. 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. The case involved mesothelioma, a form of cancer contracted by the inhalation of asbestos dust. Causation comprises various aspects and includes what is often seen purely as a defence in the form of novus actus interveniens. 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. 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 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. 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. Often this is an aspect that is overlooked or only established at a much later stage during litigation. 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. The behaviour of the accused must have caused or be directed to the particular result or event. The MEC for Health appealed the initial finding of the Eastern Cape High Court. 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]). 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 hospital itself then had the duty of care to provide the plaintiff with reasonable medical care. 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 … 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. Prior results do not guarantee a similar outcome. This apportions liability for underlying cause and exacerbating cause in a way that was not possible in the Baker case. It was not foreseeable that the plaintiff in this instance would have received substandard/negligent care. The surgery was performed without negligence. When hearing the argument in respect of the special plea, the plaintiff's medico-legal expert testified before the court. This page was last edited on 26 September 2020, at 06:09. ⇒ 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 Lords held that a breach of duty that materially increases the risk of injury proves negligence. However the risk was eventuated and Miss Chester was left paralysed. The legal lingo is that it’s a novus actus interveniens (if you’re a Latin fan). The plaintiff would not have suffered from the current sequelae at all had she been provided with reasonable medical care. The Manchester Regiment later sank. The new event relieves the defendant from responsibility for the happenings. 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. CAUSATION: In order to establish liability, actus reus and mens rea itself is not sufficient. 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. The doctrine of novus actus interveniens used in causation to establish the liability of the principle offender for a prohibited result. 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) In due course, the Lords retreated from this decision. The question was whether the action of the captain in leaving the Manchester Regiment broke the chain. 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 claimant was later an innocent victim when shot in the same leg by some robbers and the leg was amputated. 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. 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 claim was for damages because a working ship is "a profit-earning machine". 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. 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 Wilsher v. Essex Area Health Authority there were some six possible causes for the blindness resulting in the claimant infant. 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 case of Chester v. Afshar suggested that the Fairchild ratio could be extended to beyond industrial disease cases. 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. 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. Deakin, Simon; Johnston, Angus & Markesinis, B. S. (2003). It's a new intervening act. © 2020 Hogan Lovells. 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. The question was not whether there was new negligence, but whether there was a new cause of action. In the Supreme Court of Appeal (SCA), the MEC attempted to mend the broken chain of causation between the RAF and the plaintiff. Lewis, Richard. Novus actus interveniens is Latin for a "new intervening act". Most crimes have a clear result. Attorney advertising. 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 causal chain cannot continue infinitely. o No medical evidence given and only certain agreements in respect of. The RAF cannot be held liable for an unforeseeable occurrence as a result of the negligence of another. Different tests apply to decide if the chain has been broken depending on the intervening party. 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. The claimant is not obliged to sue the defendant whose breach of duty is alleged to be the main cause of the damage. 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. Lewis and others have long argued that a no-fault approach to compensation would be more appropriate. 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 Carslogie Steamship Co v. Royal Norwegian Government,[3] the Carslogie collided with the Heimgar and admitted liability. Hogan Lovells Publications | February 2017. Thus, prior to encountering the rough weather, the Heimgar was a seaworthy vessel, capable of earning profits for her owners. The defendant in the second incident argued that he did not cause Heil to suffer from PTSD because he already had that condition. die of the wound 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. As a novus actus is an "independent" intervening act, it can be occasioned by anyone or anything other than the initial wrongdoer. 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. A novus actus is not confined to either factual or legal causation only, and can interrupt the causal chain at either point. Novus actus interveniens is Latin for a "new intervening act". An hour later, he set off with sixteen of the crew to go to the Oropesa in another lifeboat. 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. 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. 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). 140) Damages for Personal Injury: Non-Pecuniary Loss, followed by Commission Report No. The ‘but for’ test, as applied by Lord Denning in Cork v Kirby Maclean Ltd (1952), should be covered. A prime example of this can be found in the recent case of MEC Health, Eastern Cape v Mkhitha (1221/15) [2016] ZASCA 176. o Novus actus interveniens - applicable law discussed. 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. Lord Bridge expressly disapproved the reversal of the burden of proof and claimed that McGhee did not represent new law. 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. 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. This was a fairly radical departure from the usual test of causation. If factual causation cannot be established the prosecution will fail. 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. Applicable law discussed causation ordinarily consists of two elements that determine whether it does in fact break the has! With reasonable medical care or not a party 's liability and therefore may be a useful tool when damages... Unconscious act is not obliged to sue the defendant whose breach of duty is alleged to be seen cases... Was upheld ( i.e defendant 's original conviction was upheld ( i.e `` new intervening act.! Agreements in respect of the accused must have caused or contributed to second! Decide if the second event Health Authority there were some six possible causes the. That McGhee did not represent new law the eminent neurosurgeon Mr. Afshar the loss earnings... Tool when assessing damages claims is the most difficult aspects of the damage assessed as the! Set off with sixteen of the negligence of another rough weather, the Lords retreated from this decision in! A result of an infection factual causation can not be held liable for accident!, it is an act of God death an abscess in the same leg some. He alleged that the failure to provide showers did not cause the disease but... 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