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Novus actus interveniens

The most difficult cases tend to be those involving the intervening intentional or negligent actions of human agents other than the defendant. One person’s negligent act (or omission) may set up a dangerous and continuing state of affairs, and an accident arising out of that continuing danger may still be interpreted by the courts as due to the original causes of the damage. There is no precise or consistent test identifying precisely when the intervening action will break causation—when it is termed a novus actus interveniens. The question of the effect of a ‘novus actus’ can only be answered on a consideration of all the circumstances and, in particular, the quality of the later act or event. The law assigns some factors to background conditions—the existing circumstances necessary to the accident—and others to active causes, principally in reliance on little more than judicial intuition.

However, there are four definable issues which require consideration:

(1)     Was the intervening conduct of the third party such as to render the original wrongdoing merely a part of the history of events?

(2)     Was the third party’s conduct either deliberate or wholly unreasonable?

(3)     Was the intervention foreseeable?

(4)     Is the conduct of the third party wholly independent of the defendant?

 

The impact of intervening conduct

In the context of personal injuries, a good example of where intervening conduct may negate liability isKnightley v Johns [1982] 1 WLR 349. The first defendant’s admitted negligence caused the blockage of a tunnel. After considerable confusion the second defendant, a police inspector, took charge of the situation. He did not immediately close the tunnel, which should have been the proper practice after such an accident. Subsequently he instructed the claimant, a police motorcyclist, to ride the wrong way back through the tunnel, against the traffic, to ensure that the tunnel was closed. Whilst doing so, the claimant was hit and injured by the third defendant who was driving too fast in the tunnel. The Court of Appeal set aside a judgment for the claimant against the first defendant. The sequence of events subsequent to the original negligence eclipsed that defendant’s wrongdoing.

Third party’s deliberate or wholly unreasonable conduct

Generally it will be easiser to establish a novus actus when the intervention of the third party is deliberate and intended.

Although there are many cases in which that has proved to be a novus actus, there are other cases where even a deliberate human act may not break causation: see Philco Radio and Television Corpn of Great Britain v J Spurling Ltd .

The more unreasonable the conduct of the third party, the more likely it is that the conduct will constitute a novus actus. In situations similar to that in Knightley v Johns [1982] 1 WLR 349 where a defendant creates an obstruction on the road which is likely to cause further accidents that defendant will normally bear some responsibility for the later consequences of his initial negligence. However, if a subsequent collision is caused by outright recklessness (Wright v Lodge [1993] 4 All ER 699), or by total bungling by those involved in dealing with the first incident, the chain of causation may be broken (eg Knightley v Johns).

Foreseeability of intervening conduct

This issue may be relevant but in many instances may not be conclusive to questions of novus actus. Considering again the decision of the Court of Appeal in Knightley v Johns [1982] 1 WLR 349 the fact that the first defendant would not readily have contemplated such a string of foolish errors by the police called to deal with the obstruction created by his negligence was significant in concluding that there had been a novus actus. But the absence of foreseeability of events does not necessarily render intervening conduct a novus actus. A particularly notable instance of where conduct was not foreseeable but not a novus actus is in Philco Radio and Television Corpn of Great Britain v J Spurling Ltd . The defendants negligently delivered parcels of flammable foam scrap to the claimant’s premises. A typist touched one of the parcels with a lighted cigarette to pass the time by making a ‘small innocuous bonfire’, having no idea that the parcel contained highly inflammable material. The defendants were held liable for the explosion, which seriously damaged the claimant’s premises. The typist’s act, although almost certainly unforeseeable, was not a novus actus. The court held that it was not so unreasonable or of such overwhelming impact as to negate the risk created by the defendant’s original negligence. A number of remoteness of damage cases also provide helpful examples. In Martin v Isbard [1947] WALR 52 the claimant developed an acute anxiety and litigation neurosis after an accident, because her doctor incorrectly advised her that she had suffered a fractured skull; this medical advice was an effective novus actus.

Third party’s conduct

Clearly, if the sole cause of the injury is not a negligent act of the defendant—it may be due to the actions of a third party or of the claimant—the action will fail: see Judson v British Transport Commission . When the conduct of the claimant is not the sole cause of the accident so liability is attributed to the defendant, the claimant may by his conduct contribute to the occurrence of the accident or the exacerbation of his injuries. In such situations where the actions of both the claimant and defendant are deemed both to be causes, then the claimant’s damages may be reduced owing to contributory negligence under the Law Reform (Contributory Negligence) Act 1945 . Such conduct is not limited to causation of the accident but may involve conduct which affects the causation of/apportionment of the award, consequential damage and awards of compensation. If, on the other hand, two or more defendants are both causative of the damage, liability will be shared in accordance with the degree of responsibility of each: Civil Liability (Contribution) Act 1978. In such a case a claimant may nonetheless recover in full against either defendant.


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