(Not so) divine intervention

The elements of delict have been the subject of much repetition when it comes to examining the claims that land on insurer's doorsteps. To such a degree that I'm convinced that it is a requirement that you should be able to recite these elements, in their sequence, should your boss ask you to do so at 3am. While knowing the elements of delict is a necessity, understanding each of them is essential when dealing with and assessing delictually based insurance claims. Often the most difficult element to understand is that of causation as a result of the various aspects that comprise causation.

Causation ordinarily consists of two elements that determine whether or not a party can be held liable for the damages caused to another. These elements are the tests of factual causation and legal causation. A full and lengthy explanation of both elements can be found in the case of Groenewald v Groenewald 1998 (2) SA 1106 SCA, but we will provide you with a brief summary. 

Factual causation is the initial test when determining legal liability and does so utilising the facts of the matter at hand. In order to determine whether a party is the factual cause of the damages suffered, we make use of the "but-for" test, which essentially poses a hypothetical question of "but for the act/omission in question, would damages have been suffered?” The "but-for" test is an objective test in order to establish liability. 

Therefore, if the answer to question is "yes", then the party will escape liability as the damages would have been incurred regardless of his act/omission. If the answer to the question is "no", then it can be seen that the act/omission is the cause of the damages, factually speaking, but if you want to verify whether the party is liable, the aspect of legal causation must first be determined. 

Legal causation is the second enquiry when determining causation and can be an intricate aspect to examine. Legal causation can be established by determining whether the wrongful act has a sufficiently close or direct link to the loss suffered by the injured party. Certain policy considerations play a role in legal causation. It was best said by Corbett CJ in Standard Chartered Bank of Canada v Nedperm Bank Ltd (320/93) [1994] ZASCA 146; 1994 (4) SA 747 (AD); [1994] 2 All SA 524 (A) that the test to determine legal causation "is a flexible one in which factors such as reasonable foreseeability, directness, the absence or presence of a novus actus interveniens, legal policy, reasonability, fairness and justice all play their part". 

Another element to causation, which has already been mentioned above, is that of novus actus interveniens. While there is a desire in the legal community to move away from fancy jargon and overly complicated Latin words and phrases, it is unlikely that this term will be changed. 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 novus actus can interrupt causation either in the factual causation test or in the legal causation test. In respect of factual causation, a novus actus interveniens has the ability to interrupt the causal connection 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. 

However, the novus actus can also be examined in respect of legal causation to determine whether liability for the initial wrongful act can no longer be imputed to the initial wrongdoer on the basis of policy, fairness, reasonability and justice. The novus actus would therefore break the "directness" aspect of the initial act and the subjective test of legal causation cannot be fulfilled. A novus actus interveniens can be brought about by anyone or anything other than the initial wrongdoer. This general category also includes the injured party and nature, such as where a storm causes greater damage to already damaged property. The important point that must be borne in mind is that an intervening act will only be a novus actus interveniens if it was not reasonably foreseeable. If the subsequent event was reasonably foreseeable at the time of the initial wrongful act, it may not be considered as a novus actus interveniens capable of limiting the liability to be imputed on the initial wrongdoer.

The instances of novus actus interveniens, while applicable to all instances of delict, are very often seen in cases of medical malpractice. 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 MEC for Health appealed the initial finding of the Eastern Cape High 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. 

The plaintiff was a passenger in a vehicle that was involved in a collision on 23 June 2011. 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 to undergo surgery. 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. 

The staff at Bedford Orthopaedic Hospital failed to take the necessary x-rays of the plaintiff's leg, which would have indicated that there was a malalignment of her right leg. As a result thereof, the leg healed with a 15 degree angulation, which she alleged was as a result of the hospital's negligence. 

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, the plaintiff was obliged to sue the RAF exclusively as her injuries were caused by or arose as a result of the accident. The court a quo dismissed the special plea as both the tests for factual and legal causation were applied. The court found that while the initial injury arose as a result of the accident, it was the negligence of the MEC's hospital staff that acted as a novus actus interveniens and that the RAF could not be held liable as a result of the substandard care provided by the MEC's hospital staff. The court also commented that sequelae as suffered by the plaintiff as a result of the substandard medical care were not reasonably foreseeable by the RAF or the driver of the vehicle (as the initial wrongdoer). 

In the Supreme Court of Appeal (SCA), the MEC attempted to mend the broken chain of causation between the RAF and the plaintiff. It was argued that factually, but for the accident, the plaintiff would not have sustained any of the injuries, with which the court agreed. Having regard to the second enquiry of legal causation, the court found that the substandard medical care provided to the plaintiff acted as a novus actus interveniens in that the substandard medical care significantly contributed to the consequences of the injuries sustained in the accident. The appeal was ultimately dismissed.

While the Mkhitha matter is the most recent decision in terms of novus actus interveniens, it is certainly not the only one. 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. All three are well-known cases as the issue of novus actus interveniens is not often raised. 

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. Often this is an aspect that is overlooked or only established at a much later stage during litigation. Therefore, it is essential that proper investigations are done in order to ensure that all the facts are before you when assessing a matter. A novus actus interveniens has the effect of limiting a party's liability and therefore may be a useful tool when assessing damages claims.

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