NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW

RANCHI

SUBJECT: LAW OF TORTS

RESEARCH TOPIC: NOVUS ACTUS INTERVENIENS

SUBMITTED BY: PREM SUBMITTED TO: DR. SUBIR

KUMAR

SEMESTER : I (ASSISTANT
PROFESSOR)

SECTION :A

ROLL NO : 1010
 ACKNOWLEDGEMENT

I have taken efforts in this project. However, it would not have been possible without the kind
support and help of many individuals. I would like to extend my sincere thanks to all of them.

I am highly indebted to my faculty Prof. Dr. Subir Kumar for his guidance and constant
supervision as well as for providing necessary information regarding the project & also for
her support in completing the project.

I would like to express my gratitude towards my parents & my friends for their kind co-
operation and encouragement which helped me in the completion of this project.

I would like to express my special gratitude and thanks to my seniors for giving me their
attention and time.

My thanks and appreciations also go to my colleagues in developing the project and people
who have willingly helped me out with their abilities.

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 TABLE OF CONTENTS

ACKNOWLEDGEMENT..........................................................................................................i

LIST OF CASES......................................................................................................................iii

INTRODUCTION......................................................................................................................1

EFFECT OF NOVUS ACTUS INTERVENIENS-NEGLIGENCE- JOINT AND SEVERAL

LIABILITY................................................................................................................................2

REMOTENESS..........................................................................................................................4

RESEARCH QUESTION..........................................................................................................7
THE FACT IN BRIEF............................................................................................................7
DISCUSSION.........................................................................................................................8
JUDGEMENT........................................................................................................................9

CONCLUSION........................................................................................................................10

BIBLOGRAPHY.....................................................................................................................11

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 LIST OF CASES

Grant v. Sun Shipping Co., Ltd., and Another (1947)

Atkinson J. in Jerred v. Dent 3- Son, Ltd. (1860-1862)

Hogan v. Bentinck West Hartley Collieries (1949)

Corr v IBC Vehicle (2008)

Simmons v British Steel Plc (2004)

Van der Merwe v Road Accident Fund (2006)

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 INTRODUCTION

Damage resulting to the plaintiff after the chain of causation set in motion by the defendant's
wrongful act is a snapped is too remote and does not qualify for award of damages against the
defendant.1 The proposition to stated in simple but the difficulty lies in formulating the
principles as to when an act or event breaks the chain of causation. The snapping of the chain
of causation may be caused by a human action or a natural event.

As regards human actions, two principles are settled; human action does not per se serve the
connecting sequence of acts; in other words, the real fact that human action intervenes does
not prevent the factor from saying that injury which is due to that human action as one of the
element is the sequence is recoverable from the original wrongdoer; and secondly that to
break the chain of causation is must be shown that there is something ultroneous, something
unwarrantable, a new cause which disturb the sequence of events, something which can be
described as either unreasonable or extraneous or extrinsic.2 If there is a duty to avoid risk to
children, their unexpected behaviour does not break the chain of causation “for their
ingenuity in finding unexpected ways of doing mischief to themselves and other should never
be underestimated.

1
Weld Blundell v Stephens, (1920) AC 956: 123 LT 593: 36 TLR 640 (HL) p986 (Lord Sumner).

2
Lord v Pacific Steam Navigation Co. Ltd.; The Oropesa, (1943) 1 All ER 211 (CA); (Per Lord Wright).

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 EFFECT OF NOVUS ACTUS INTERVENIENS-NEGLIGENCE- JOINT
AND SEVERAL LIABILITY

Grant v. Sun Shipping Co., Ltd., and Another3

The plaintiff, a stevedore, while loading a ship, fell through which had been left uncovered
and unlighted by repairers, and which had not subsequently been examined by the ship-
owners. In an action for damages, the House of Lords held that both the ship-owners and the
repairers were liable for statutory and common law negligence.

The main issue may be stated in these terms: were the repairers relieved of all liability for
their initial wrong by the subsequent negligent omission of the ship-owners? The court held
that, in these circumstances, both defendants were jointly and severally liable. When damage
is the result of the cumulative effect of a series of negligent acts, the liability of a wrongdoer
is not necessarily excluded by the concurrent or subsequent intervention of another.

A similar result in a very similar situation was reached by-

Atkinson J. in Jerred v. Dent 3- Son, Ltd.4 Hogan v. Bentinck West Hartley Collieries,5

provides a contrast. The plaintiff, while at work, broke an extra thumb which protruded from
the top joint of his normal thumb. It failed to heal after being set and on medical advice he
had it amputated with the top joint of the ordinary thumb. He then suffered pain in the stump
and brought an action against his employers. The county court judge found that the treatment
of the injury was 'ill-advised ' and that the pain in the thumb was due to that treatment and not
to the original injury, so that the employers were not liable to pay compensation. The House
of Lords, by a majority of one, upheld the decision, holding that the issue was one of fact and
that the county court judge had not misdirected himself. Though their Lordships' decision
must be taken to conclude the particular instance, on the question of principle the powerful
dissenting opinions of Lord MacDermott and particularly of Lord Reid are very persuasive
and agree well with the principle of Grant's Case.

3
Grant v. Sun Shipping Co., Ltd., and Another (1948) A.C. 549.
4
Atkinson J. in Jerred v. Dent 3- Son, Ltd. [1948] 2 All E.R. 104.
5
Hogan v. Bentinck West Hartley Collieries [1949] 1 All E.R.588

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Subject, therefore, to this instance, Grant's Case shows the development of simpler rules of
causation. It disposes of the rule of 'last opportunity'. Moreover, it emphasises the trend from
'possibility' to ' probability' of inspection under 'the manufacturer's rule' in Donoghue v.
Stevenson.6 The wrongdoer may no longer, by reason only of the fact of subsequent
intervention, pass his whole burden on to those who contribute to the ultimate result, be they
third parties or even the plaintiff himself. Damages are to be apportioned, and proportions are
matters of fact.

6
Donoghue v. Stevenson [1932] A.C. 562, 599.

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 REMOTENESS

A Summary of Principles in Considering Remoteness-

In Simmons v British Steel Plc,7 Lord Rodger summarized the principles involved in
considering the question of remoteness of damage. The summary reads:

These authorities suggest that, one liability is established, any question of the remoteness of
damage is to be approached along the following lines which may, of course, be open to
refinement and development.

(1) The starting point is that the defender isn’t liable for a consequence of a kind which is
not reasonably foreseeable.
(2) While a defender is not liable for damaged that was not reasonably foreseeable, it
does not follow that he is liable for all damage that was reasonable foreseeable:
depending on the circumstances, the defender may not be liable for damage caused by
a novus actus interveniens or on reasonable conduct on the pursuer, even if it was
reasonably foreseeable.
(3) Subject to the qualification in, if the pursuer's injury is of a kind that was foreseeable,
the defender is liable, even if the damage is greater in extend that was foreseeable or it
was caused in a way that could not have been foreseen.8
(4) The defender must takes his victims as he finds him.
(5) Subject again to the qualification in, where personal injury to the pursuer was
reasonably foreseeable, the defender is liable for any personal injury, whether
physical or psychiatric, which the pursuer suffers as a result of his wrongdoing”9

7
Simmons v British Steel Plc, (2004) UKHL 2004.
8
Huges v Lord Advocate (1963) 1 All ER 705 at 708, (1963) AC 837 at 847 per Lord Reid.
9
Page v Smith (1995) 2 All ER 736 at 768, (1996) AC 155 at 197 per Lord Lloyd.

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In Corr v IBC Vehicle 10 where the above points were quoted and applied: Corr was employed
by IBC vehicle (the defendant) as maintenance engineer, In an accident which took place in
June 1996 because of the breach of duty or negligence of the defendant, Corr suffered severe
injuries on the right side of his head. He undergoes for long and very painful reconstructive
type of surgery. He remained disfigured, persistently suffered from unsteadiness, mild
tinnitus and severe headaches and got difficulty in sleeping. He also suffered from post-
traumatic stress disorder. As a result of the accident Corr became depressed, and this
condition became worse with passage of time, and developed suicidal tendency. A
psychologist diagnose his condition as one of the severe 'anxiety and depression'. In May
2002, while suffering from severe depression Corr committed suicide. In 1999 Corr had
instituted proceedings claiming damages for the physical and psychological injuries suffered
by him. After his death his widow was substituted as claimant and claimed damages for
benefit of the estate. She also claimed damages as a dependent for herself. It was only the
latter claim as a dependant that was contested and came up before the House of Lords in
appeal by the defendant. In dismissing, the appeal the House of Lords held;

(i) At the time of his death the deceased had acted in a way he would not have done
but for the injury which he had suffered because of defendant's breach of duty. His
conduct in taking his own life could not be said to fall outside the scope of the
duty which the defendant had owed him.
(ii) A reasonable employer would have recognized the possibility not only of acute
depression but of such depression culminating in suicide as foreseeable.
(iii) The rationale of the principle that a novus actus interveniens broke the chain of
causation was fairness. It was not fair to hold a tortfeasor liable for damage caused
not by his breach of duty but by some independent, supervening cause for which
the tortfeasor was not responsible. That was not the less so where the independent
supervening cause was a voluntary informed decision taken by the victim as an
adult about his own future. But it was not so in this case where the suicide was the
response of a man suffering from a severely depressive illness which impaired his
capacity to make reasoned and informed judgment about his future, such illness
being a consequence of the defendants’ torts.

10
Corr v IBC Vehicle (2008) 2 All ER 943 (H.R.)

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(iv) The deceased's conduct in taking his own life could not be said to be unreasonable
once it was accepted that this conduct was induced by the defendant's breach of
duty.
(v) As the deceased's conduct in taking his own life was an act performed because of
psychological condition which the defendant's breach of duty had induced it was
not a voluntary act giving rise to the defence of volenti non fit injuria.

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 RESEARCH QUESTION

Question- To prove or not to prove? Novus actus interveniens in third-party claims.

Van der Merwe v RAF (GP) (unreported case no 42358/15, 16-3-2018) (Ranchod J)

By PREM

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. Loosely
translated it means ‘new intervening act’.

Ranchod J, in the Gauteng Division, Pretoria had occasion to deal with this principle in a
third-party claim in this matter.

THE FACT IN BRIEF

The plaintiff, Amore van der Merwe was injured in a motor vehicle accident on 27 October
2012 in Modimolle, Limpopo Province. She was a passenger in a motor vehicle, which slid
backwards on an embankment, capsized and rolled over her. She was on holiday in South
Africa when she was injured in the accident.

Liability was admitted by the Road Accident Fund (RAF) and the only triable issue was the
issue of the quantum of the plaintiff’s damages.

The RAF admitted the correctness of the medico-legal reports from the various experts of the
plaintiff. Only the evidentiary value of the reports was challenged.

The plaintiff was 19-years-old at the time of the accident and 24-years-old at the time of the
trial. Her legal representatives were of the view that it was not necessary for her to testify at
the trial as the trial related to the quantum of damages only. The defendant was, however, of
the view that she should be available to testify. It was agreed by both parties and arranged
that she testify via Skype as she was in New Zealand.

It was her testimony that her hip was causing her great discomfort and that she had been
unemployed due to the injuries she sustained in the accident. She stated that she would like to
study and work in the future, but was not able to do so due to the injuries.

An educational psychologist and an occupational therapist testified after her. There was no
cross-examination of the plaintiff or the two experts by defendant’s counsel and the plaintiff

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closed her case. The defendant did not lead any evidence and closed its case as well and both
parties presented their arguments.

DISCUSSION
The thrust of the defendant’s argument was that the plaintiff had suffered further injuries on 8
October 2015 when she fell from some stairs and sustained injuries to her right knee and
lower back. This, argued counsel for the defendant, constituted a novus actus interveniens for
which the defendant could not be held liable as far as the injuries the plaintiff sustained in the
fall were concerned. The fall and the injuries sustained were revealed for the first time in the
medico-legal report of the plaintiff’s industrial psychologists dated 1 March 2017.

All the plaintiffs’ medico-legal reports were obtained after 8 October 2015, namely between
3 November 2015 and 1 March 2017. The defendant argued that the plaintiff’s experts did not
differentiate between the injuries sustained in the motor vehicle accident and those that she
sustained as a result of the fall.

The defendant’s counsel submitted that the plaintiff had the option of asking for a
postponement with a tender for costs in order to allow her experts to rewrite their reports and
exclude the later injuries. Alternatively, that the court should grant absolution from the
instance.

Firstly, the plaintiffs’ counsel submitted that the defendant’s entire argument on this score
stemmed from one passage in the industrial psychologist’s medico-legal report. Secondly, the
argument went, the defendant’s counsel had failed to cross-examine the plaintiff and her two
experts hence the defendant could not raise the issue of a novus actus interveniens. Thirdly,
the defendant had not raised a substantive defence of novus actus interveniens and had not
adduced any evidence in that regard. Finally, the onus of proving a novus actus rested on the
defendant.

In the court’s view the above submissions could not be sustained. The fact that the plaintiff
sustained further injuries almost three years after the motor vehicle accident was peculiarly
within her knowledge. It appeared that she had been to an orthopaedic surgeon on 13
November 2015 about three weeks after she fell on 8 October 2015, yet no mention was
made of the fall to him. One can only assume that she did not mention it to the orthopaedic
surgeon. The same can be said about her visits to the other experts. She consulted the
industrial psychologist on 4 November 2015; a neurosurgeon on 3 November 2015; a plastic
surgeon on 13 November 2015; an occupational therapist on 14 November 2015; a

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neuropsychologist on 3 June 2016 and the educational psychologist on 22 February 2017.
None of them, except the industrial psychologist, indicated that the plaintiff had told them
about the fall on 8 October 2015.

The result was that all the plaintiff’s experts took the injuries she sustained in the fall from
the stairs into account when compiling their reports and forming their opinions. The
defendant could not have been expected to do anything about that.

The onus was on the plaintiff to prove causation, which, in the court’s view – given that it
was peculiarly within the plaintiff’s knowledge that she fell and sustained injuries – also
meant to exclude any interruption of causation.

The plaintiff carries the burden to prove causation and where the plaintiff has sustained
further injuries after the accident there is a secondary burden on the plaintiff to prove that the
causation of such injuries does not interrupt the causation of all the injuries that the plaintiff
presents with. By failing to disclose that there are injuries which she sustained when she fell
down the stairs (a fact which was always within her knowledge) the plaintiff gave the experts
the impression that all the injuries she presented with were caused by the accident and they,
therefore, treated all injuries as such. The experts should have, therefore, been briefed of the
fact that the plaintiff had fallen down the stairs in order to enable them to exclude these
injuries from their opinions.

The aforesaid reasoning is so because the experts should be able to say that the plaintiff fell
because of the injuries sustained in the accident. In this way, the injuries would not be
regarded as a new intervening act. But by presenting all the injuries as if they are caused by
the accident, the plaintiff was misleading the experts and, therefore, her claim cannot be said
to have been properly quantified because she has failed to show that all the injuries are
accident related.

JUDGEMENT
Much store was put on the defendant’s failure to cross-examine the plaintiff and her two
witnesses. The defendant did not have to because it was accepted that two sets of orthopaedic
injuries existed, those sustained in the motor vehicle accident and those sustained in the fall.
The defendant did not have to call any witnesses to prove the novus actus – the plaintiff had
to do so.

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The court was unable to determine the plaintiff’s quantum in respect of the injuries sustained
in the motor vehicle accident on 27 October 2012 and ordered an absolution from the
instance of the plaintiff’s claim with costs.

CONCLUSION

In my words novus actus interveniens is a new intervening act that breaks the causal cycle of
events set in motion by the act of the wrong doer. The new act decreases the liability of the
actual wrong doer. For example A causes injury to B while driving and meeting with an
accident with B. B is taken to hospital and while operating on B thus doctor negligently
injects him with 10 mg of anesthesia instead of 2 mg which causes the death of B. In this case
the actual wrong doer A will only be held Liable for Negligent driving and not the death of B.

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 BIBLOGRAPHY

 Law of Torts by Dr. R.K. Bangia.

 Law of Torts by Dr. S.P. Singh.

 Law Of Torts by RATANLAL & DHIRAJLAL

 Manupatra

 SCC Online

 JSTOR

 www.oxforddictionaries.com

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