IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

REPORTABLE
Case number : 656/98

In the matter between :

THE ROAD ACCIDENT FUND
Appellant

and

TERESA DORIS RUSSELL                                          Respondent

CORAM :
Howie, Schutz JJA and Chetty AJA

HEARD :
13 November 2000

DELIVERED :
24 November 2000

Legal causation - whether death by suicide of a person of impaired mind
and judgment, a novus actus interveniens
________________________________________________________________

JUDGMENT
________________________________________________________________

CHETTY AJA/

CHETTY AJA :
[1] On 16 August 1989 Michael Henry Russell (the deceased), a roofing
contractor of Durban, sustained severe multiple injuries as a result of a motor
collision, inter alia concussion with brain damage,  scalp lacerations, multiple
rib fractures, a contusion of the left lung, a fracture of the right humerus, a
fracture of the right femur, a fracture of the right lower tibia, and a fracture
dislocation of the left metatarpals.
[2] The deceased was hospitalised initially at the King Edward Hospital
where he lay in a comatose state for approximately one month, whereafter he
was transferred to the Addington Hospital where he remained until his discharge
on 22 January 1990.  Save for two short periods of further hospitalisation in July
and October 1990, the deceased lived with his wife, the respondent, and their
children in the family home until November 1990.  In that month she had him
admitted to Morningside Nursing Home where, in January 1991, he committed
suicide.
[3] It is clear from the evidence of the respondent that the collision
completely transformed the deceased, not only disabling him physically but
moreover seriously affecting his interpersonal relationships.  She described him
prior to the collision as being a wonderful husband and father to his children, a

fit and healthy individual, a man who loved life.  The collision, however, had
rendered him intolerant, impatient, irritable, subject to angry outbursts and
lacking libido.  In short, the man whom she had described as a fighter and full of
spirit, was completely transformed.
[4] Approximately two months prior to the deceased’s death the respondent
took the decision to admit the deceased to the nursing home.  The decision was
not taken  lightly.  It was thrust upon her by events.  Shortly before the
deceased’s admission to the nursing home, the respondent discovered the
deceased on the roof of their house.  It seemed to her that he must have crawled
up the staircase, as he could not walk.  The respondent concluded that the
deceased intended committing suicide.  The other incident related to an apparent
overdose of pills, which required hospitalisation.  The respondent had become
fully engaged in the running of the family business, with the result that,
notwithstanding trained personnel being employed to watch over the deceased at
home, she had concluded that he had nonetheless attempted suicide.  Concerned
for his future well-being,  the respondent considered that the deceased needed
proper care and this could only be provided at the nursing home.   She intended
this as a temporary measure pending a more agreeable permanent arrangement.
[5] After his admission to the nursing home she discerned no meaningful

change in his personality.  Sister Cohen, who was in charge of the nursing home
and who at times conversed with the deceased, albeit superficially, opined that
the deceased was inwardly unhappy and from her observations over a period of
time concluded from his inappropriate behaviour that his mental functioning
was clearly not normal.  It was also obvious to her that the deceased suffered
from depression.
[6] The respondent visited the deceased regularly and on occasion  took him
on excursions.  On the morning of his suicide she took him for a medical
assessment to determine his prospects of recovery and future working
capabilities.  The deceased was informed that his prospects were nil.
[7] It is common cause that during the course of that morning the deceased
jumped to his death from a second storey parapet of the nursing home.
[8] The respondent instituted two damages actions against the appellant in
terms of the relevant third party compensation legislation.  The first,  in her
capacity as executrix of the estate of the respondent, was settled.   The second,
on behalf of the minor children for loss of support, proceeded to trial in the
Durban and Coast Local Division before Jappie J, solely on the merits.
[9] The central issue which the trial court was required to decide  was
whether the death of the deceased arose as a result of the injuries sustained in

the collision and in circumstances not involving any novus actus interveniens.
The trial court found in favour of the respondent but granted the appellant leave
to appeal to this court.
[10] The expert testimony adduced at the trial must be considered against the
background that neither Professor Von Dellen, on behalf of the respondent, nor
Professor Schlebusch, for the appellant had had any contact with the deceased
prior to his death. Professor Schlebusch, a prominent neuropsychologist,
conducted a psychological autopsy on the deceased, which he described as
“taking a backward glance to recover relevant information about a person who
is already dead ... in an attempt to reconstruct the role which the deceased
played in eventuating his own demise.”  He concluded, on the basis of
information made available to him, primarily through interviews with Sister
Cohen and the respondent, that although the deceased had undergone some
behavioural and personality changes after the collision he was fairly
appreciative of his condition and could understand what was going on.  He
expressed the view that the deceased “wasn’t a mental or a cognitive invalid”
and that he was “fairly able intellectually or cognitively to understand and
appreciate his actions.”
[11] Although Prof Schlebusch conceded that the deceased suffered from

severe  depression, albeit not major depression, he was constrained to admit that
depression is a brain dysfunction.  He furthermore reluctantly conceded but only
as a possibility that the most significant contributing factor to the depression
was the deceased’s brain injury.  Such injury was consistent with his irritability,
inappropriate behaviour, inability to control outbursts, lack of short term
memory, reduced concentration and loss of fine motor control functions.  In her
testimony the respondent had described all these manifestations of the
deceased’s altered personality and conduct.  Finally, Prof Schlebusch conceded
that there was a clear relationship between the deceased’s depression and the
suicide.
[12] However, it was submitted on behalf of the appellant that there was no
acceptable evidence that the decision by the deceased to take his own life was a
consequence of brain damage.  The evidence of Prof von Dellen does not
support this submission.  It is true that there was some conflict between it and
medical literature produced to advance his opinion.  That, however, does not
diminish the force of his evidence.  He is an eminently qualified and
experienced neurosurgeon.  His practical experience is considerable.  In his
experience the type of brain lesion suffered by the deceased very often
adversely affects a person's behaviour.  He furthermore adverted to a frequent

link between the sort of injuries sustained by the deceased and severe depression
and concluded that the deceased suffered from a tendency to mix reality and
fiction, or at the very least from a lack of full cognitive function.  It cannot be
denied, and this was in fact conceded by Prof Schlebusch, that prior to the
collision the deceased did not suffer from depression.  Its onset became evident
after his brain was injured.
[13] Upon careful evaluation therefore, the evidence establishes that the brain
injury probably caused, or was the major factor, inducing the depression.
[14] A proper appraisal of the evidence of the respondent, and to a lesser
degree that of  Sister Cohen, indubitably establishes that, although the deceased
was not non compos mentis, he clearly could not be regarded as a person with
all his mental faculties intact.
[15] It was conceded on behalf of the appellant that the injuries sustained by
the deceased in the collision were a sine qua non of his eventual suicide, in the
sense that had he not sustained such injuries he probably would not have
committed suicide.  It was submitted, however, that the deceased's decision to
terminate his life was an informed and voluntary act on his part and as such
constituted a novus actus interveniens, which served to break the chain of
causation between the collision and the deceased's death.

[16] The trial court found that the suicide was not a novus actus interveniens
but was causally connected to the negligence of the insured driver.  It appears
from a proper appraisal of the evidence that no factors extraneous to the injuries
caused by the accident led to the suicide.  Such inducing factors as there might
have been, additional to the depression and loss of cognitive function, factors
such as an inability to earn a living and being removed from his home
environment, were all direct consequences of his injuries.
[17] In International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A)
Corbett CJ reaffirmed that the determination of causation in the law of  delict
involves two distinct enquiries, which he formulated as follows at 700E-I:
“As has previously been pointed out by this Court, in the law of
delict causation involves two distinct enquiries.  The first is a
factual one and relates to the question  as to whether the
defendant’s wrongful act was a cause of the plaintiff’s loss.  This
has been referred to as ‘factual causation’.  The enquiry as to
factual causation is generally conducted by applying the so-called
‘but-for’ test, which is designed to determine whether a postulated
cause can be identified as a causa sine qua non of the loss in
question.  In order to apply this test one must make a hypothetical
enquiry as to what probably would have happened but for the
wrongful conduct of the defendant.  This enquiry may involve the
mental elimination of the wrongful conduct and the substitution of
a hypothetical course of lawful conduct and the posing of the
question as to whether upon such an hypothesis plaintiff’s loss
would have ensued or not.  If it would in any event have ensued,
then the wrongful conduct was not a cause of the plaintiff’s loss;
aliter, if it would not so have ensued.  If the wrongful act is shown
in this way not to be a causa sine qua non of the loss suffered, then

no legal liability can arise.  On the other hand, demonstration that
the wrongful act was a causa sine qua non  of the loss does not
necessarily result in legal liability.  The second enquiry then arises,
viz whether the wrongful act is linked sufficiently closely or
directly to the loss for legal liability to ensue or whether, as it is
said, the loss is too remote.  This is basically a juridical problem in
the solution of which considerations of policy may play a part.
This is sometimes called ‘legal causation’.”

[18] In our law, the test to be applied in determining legal causation was
described by Corbett CJ as "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.” (Standard
Chartered Bank of Canada v Nedperm Bank Ltd 1994 (4) SA 747 (A) at 764I-
765B.)
[19] In Smit v Abrahams 1994 (4) SA 1 (A), Botha JA, in advancing the
flexible approach to legal causality espoused by Van Heerden JA in S v
Mokgethi en Andere 1990 (1) SA 32 (A) at 39J-41B (albeit in a criminal law
context) deemed it necessary to make the following general remarks (at 18E-
HOF):
“Die belangrikheid en die krag van die oorheersende maatstaf om
vrae van juridiese kousaliteit op te los, wat in Mokgethi (supra) en
International Shipping Co (supra) aanvaar is, lê juis in die
soepelheid daarvan.  Dit is my oortuiging dat enige poging om aan
die buigsaamheid daarvan afbreuk te doen, weerstaan moet word.
Vergelykings tussen die feite van die geval wat opgelos moet word
en die feite van ander gevalle waarin daar alreeds ‘n oplossing

gevind is, of wat hipoteties kan ontstaan, kan vanselfsprekend
nuttig en waardevol, en soms miskien selfs deurslaggewend, wees,
maar ‘n mens moet oppas om nie uit die vergelykingsproses vaste
of algemeengeldende reëls of beginsels te probeer distilleer nie.
Die argument dat die eiser se eis ‘in beginsel’ verwerp moet word,
is misplaas.  Daar is net een ‘beginsel’:  om te bepaal of die eiser se
skade te ver verwyderd is van die verweerder se handeling om
laasgenoemde dit toe te reken, moet oorwegings van beleid,
redelikheid, billikheid en regverdigheid toegepas word op die
besondere feite van hierdie saak.”

[20] In support of his submission that the deceased’s deliberate act of suicide
negatived the causal connection between the collision and his subsequent death,
appellant’s counsel referred to the decision of the House of Lords in Reeves v
Commissioner of Police of the Metropolis [1999] 3 All ER 897.  This case is
factually distinguishable in one vitally important respect.  The deceased in that
matter was found to be of sound mind and with unimpaired judgment when he
committed suicide while in police custody. The argument raised on behalf of the
Commissioner there was that a person’s deliberate act of suicide, when of sound
mind, was a novus actus interveniens which negatived the causal connection
between the breach of duty owed by the police to the deceased and his death.
[21] It is clear from the majority and minority speeches that in deciding the
question raised a clear distinction was drawn between a person who commits
suicide whilst of sound mind and unimpaired judgment and one who is not.  As

to the former situation, the majority held (at 902e-g):
“... People of full age and sound understanding must look after
themselves and take responsibility for their actions. This
philosophy expresses itself in the fact that duties to safeguard from
harm deliberately caused by others are unusual and a duty to
protect a person of full understanding from causing harm to himself
is very rare indeed.  But, once it is admitted that this is the rare case
in which such a duty is owed, it seems to me self-contradictory to
say that the breach could not have been a cause of the harm
because the victim caused it himself.”

[22] It is implicit from the speeches in that case that an act of suicide by a
person not of sound mind and unimpaired judgment, would not constitute a
novus actus interveniens.
[23] A case not too dissimilar from the present is the earlier decision of the
English Court of Appeal in Kirkham v Chief Constable of the Greater
Manchester Police [1990] 2 QB 283 (CA) in which it was held that a prisoner’s
wife was entitled to recover damages in tort because of the defendant’s
negligence in not preventing the suicide of her husband whilst in custody.  The
proven facts were that the deceased was suffering from clinical depression.
Lloyd LJ said (at 290B-E):
“So I would be inclined to hold that where a man of sound mind
commits suicide, his estate would be unable to maintain an action
against the hospital or prison authorities, as the case might be.
Volenti non fit injuria would provide them with a complete
defence.  There should be no distinction between a successful
attempt and an unsuccessful attempt at suicide.  Nor should there

be any distinction between an action for the benefit of the estate
under the Act of 1934 and an action for the benefit of dependants
under the Fatal Accidents Act 1976.  In so far as Pilcher J drew a
distinction between the two types of action in Pigney v Pointer’s
Transport Services Ltd [1957]  2 All ER 807, [1957] 1 WLR 1121,
I would respectfully disagree.

But in the present case Mr Kirkham was not of sound mind.
True, he was sane in the legal sense.  His suicide was a deliberate
and conscious act.  But Dr Sayed, whose evidence the judge
accepted, said that Mr Kirkham was suffering from clinical
depression.  His judgment was impaired.  If it had been a case of
murder, he would have had a defence of diminished responsibility
due to disease of the mind.  I have had some doubt on this aspect of
the case in the light of Dr Sayed’s further evidence that, though his
judgment was impaired, Mr Kirkham knew what he was doing.
But in the end I have been persuaded by Mr Foster that, even so, he
was not truly volens.  Having regard to his mental state, he cannot,
by his act, be said to have waived or abandoned any claim arising
out of his suicide.  So I would reject the defence of volenti non fit
injuria.” (My emphasis.)

[24] This examination of the English authorities establishes the principle that a
person who is not of sound mind cannot be said to have acted with unimpaired
volition in forming the decision to commit suicide and that such suicide does not
constitute a novus actus interveniens.
[25] The question raised by the present appeal has as yet not been considered
by this Court.  However, even though the deceased’s act of suicide may be said
to have been deliberate, the weight of the evidence proves on the probabilities
that the deceased's  mind was impaired to a material degree by the brain injury

and resultant depression.  Consequently his ability to make a balanced decision
was deleteriously affected.  Hence his act of suicide, though deliberate, did not
amount to a novus actus interveniens.  It is unnecessary for the purpose of this
case to determine whether the question of  novus actus interveniens is properly a
consideration material to legal causation or, rather, factual causation and that
question is accordingly left open.
[26] As far as foreseeability is concerned it is not necessary for the wrongdoer
to have foreseen the details of any, possibly subtle, connection between the
injuries caused to the deceased and his subsequent suicide.  Finally, in applying
the flexible approach which this Court enjoins one to employ in determining the
question of legal causation, it would be eminently reasonable, fair and just to
hold that the evidence established the requirements for the existence of such
causation.  Consequently the appellant is liable to compensate the respondent
for such damage as she may prove.
[27] The appeal is dismissed with costs.

...................
D CHETTY
ACTING JUDGE OF APPEAL

Concur :

HOWIE  JA
SCHUTZ  JA