Proving causation in delictual claims is notoriously difficult when a victim takes their own life. A recent judgment by the Supreme Court of Appeal in the case of the Road Accident Fund v L[…] M[…] and Others (Case no 174/2024) [2026] ZASCA 73 (21 May 2026), has brought into sharp focus the legal principles of legal and factual causation, particularly regarding the Road Accident Fund’s (RAF) liability in cases of suicide following severe trauma sustained by a victim due to a motor collision.
BACKGROUND
In this case, the deceased who was a self-employed artisan at the time and plumber, was involved in a motorcycle collision in June 2016, and sustained severe orthopaedic injuries, including a comminuted right fractured tibia, a pelvic fracture, and a mild concussive injury leaving him with permanent physical impairments and chronic pain. Six months later, (in December 2016) while his damages claim against the Road Accident Fund (RAF) was still pending, the deceased took his own life.
When his widow instituted a claim for loss of support on behalf of herself and her minor children, the trial court initially dismissed the action. It adopted an overly narrow, formalistic approach to the claim, and reasoned that because the deceased had not been formally diagnosed with a Major Depressive Disorder (MDD) by a psychiatrist prior to his death, the court ruled that the family failed to establish a factual causal link.
However, on appeal, the Full Court overturned this decision, setting aside the order of the trial court and substituted it with an order that the RAF is liable for damages. The Full Court accepted the expert evidence previously deemed as unreliable and clarified that it was not a requirement that the deceased must have been diagnosed as suffering from a mental illness in order to establish factual causation.
The Supreme Court of Appeal (SCA) reached a decision that factual causation had been established however the legal causation was absent due to that the suicide constituted a novus actus interveniens (a new intervening act) and was too remote from the collision. Ultimately, the SCA set aside the full courts order and dismissed the appeal with costs.
THE TWO-STAGE ENQUIRY
This case provides a detailed clarification of the two-stage causation enquiry in South African delict law. The enquiry consists of the factual causation and legal causation explained as follows:
- Factual Causation (The “But-For” Test)
Factual causation deals with the actual physical or scientific link between the conduct and the harm. It seeks to enquire whether harm would have occurred if it were not for (“but for”) the defendant’s wrongful act or omission. One could consider this an enquiry through elimination: if the court were to mentally remove the negligent driver and the motorcycle accident from the timeline, does the suicide still happen? If the answer is no, meaning but for the accident, the deceased would still be alive today, then factual causation would be proven.
Once it has been established that the wrongful conduct factually caused the resulting harm, the second enquiry arises.
- Legal Causation
Legal causation refers to the principle that the defendant’s action must be the direct cause of the plaintiff’s injury or harm in order for the defendant to be held legally responsible. This is where the RAF raised its defence of the novus actus interveniens. The RAF essentially argued that although the accident did happen, the deceased’s independent, deliberate choice to take their own life six months later broke the link between the accident and the deceased’s death, arguing that the outcome is too remote.
THE CONCEPT OF THE NOVUS ACTUS INTERVENIENS
A novus actus interveniens refers to a new or independent event that occurs after the defendant’s wrongful conduct and contributes to the harm suffered by the plaintiff. If the intervening event is sufficiently independent of the initial wrongful conduct, it may cause the causation link and relieve the wrongdoer of liability.
In Russell v the Road Accident Fund, the deceased suffered serious injuries including a brain injury, resulting from a motor vehicle collision. The deceased then developed depression and significant mental impairment, and took his own life several months later. The Supreme Court of Appeal held that the suicide was not a new intervening act, it rather resulted from the accident as per the evidence presented and that the depression had affected his judgement and ability to make balanced decisions.
This case applied these principles as held in Russell. The SCA held that the on evidence, the deceased retained his capacity for free-will of decision making and that his suicide therefore was as a result of a new intervening act. The court successfully established the factual causation, it however concluded that the legal causation was absent because the suicide was not reasonably foreseeable and was too remote from the motor collision.
LEGAL SIGNIFICANCE
The combined effect of Russell and L[…] M[…] demonstrates that the determination of liability of the RAF in suicide instances that follow a while later after the accident has occurred, depends largely on the mental condition of the deceased and the closeness of the connection between the wrongful act and the suicide. In essence, when a defendant’s wrongful act triggers severe, persistent physical pain and completely strips a person of their ability to make balanced decisions and judgement, the subsequent suicide may not constitute a novus actus interveniens. However, where the deceased retains the full capacity to and voluntarily chooses to end their life without any recognised impairment of freedom of choice, the suicide may break the chain of the legal causation and relieve the defendant of liability.
See also Groenewald v Groenewald [1998] ZASCA 34 which did not deal with a motor vehicle accident; however, it established the precise legal mechanism used to defeat the novus actus interveniens defence. Wherein the Supreme court of Appeal (SCA) held that for an act to qualify as a novus actus interveniens, it must be an event that is completely disconnected from the defendant’s wrongful conduct, or an act of genuine free will.
THE PRACTICAL TURN: BUILDING THE CAUSAL LINK THROUGH MULTI-DISCIPLINARY EXPERTS
It was mainly highlighted in the case that in order for the claim for loss of support to succeed the onus rested on the Plaintiff to discharge sufficient proof on a balance of probabilities that the deceased’s suicide was a direct or proximate result of the accident. It therefore was stated that the evidence discharged by the Plaintiff did not indicate that the deceased exhibited enough symptoms to warrant a Diagnostic and Statistical Manual of Mental Disorders Five (DSM-5) assessment and that the deceased indeed suffered a mental disorder due to accident.
However, the Full Court’s willingness to accept expert evidence previously deemed unreliable by the trial court highlights a major evolution in personal injury litigation. This shifts the evidentiary burden onto Attorneys alleging mental illness as a result of a motor vehicle collision. Although this is an ongoing, complex procedure, attorneys must be firm in how they present their case, ensuring they adduce fully detailed and comprehensive evidence. To prove that a suicide was the predictable, final symptom of a motor collision, legal professionals must rely on a pattern and/or range of expert testimonies which include but are not limited to:
- Clinical psychologists: To assess an individual’s mental state, emotional distress, depression, trauma and psychological functioning resulting from the accident.
- Psychiatrists: To diagnose mental illness and to provide expert opinions regarding the impact of psychological conditions on behaviour and decision making.
- Neuropsychologist: To evaluate the behavioural and cognitive effects of brain injuries and to determine whether a person’s judgement or reasoning has been impaired.
- Neurologists: To assess neurological injuries and explain how brain damage may affect mental functioning.
- Orthopaedic Surgeons : Their role is crucial in establishing the physical baseline, proving the absolute intensity, permanence, and nature of the physical trauma and chronic pain.
- Occupational Therapists and Industrial Psychologists:For an artisan or a plumber, their sense of self and dignity is inextricably linked to their physical capacity to work. These experts quantify the devastating loss of economic freedom and the psychological effect that comes with suddenly being unable to provide for a family.
- Lay Witnesses Testimony: the qualitative evidence of family members, friends, and colleagues is vital to documenting the rapid, observable behavioural slide from a resilient breadwinner to a desperate victim in the six months leading to the suicide.
CONCLUSION
The SCA in this case has reaffirmed that the establishment of factual causation does not automatically result in legal liability. Although the court accepted that the deceased’s injuries were factual causes of his suicide, it ultimately held that the legal causation had not been established. The absence of recognized mental impairment affecting the deceased’s capacity for free-will and decision making resulting directly from the accident, meant that his suicide constituted a novus actus interveniens. The case illustrates the crucial role of legal causation as a limiting principle on liability.
REFERENCES
- Road Accident Fund v L[…] M[…] and Others (Case no 174/2024) [2026] ZASCA 73 (21 May 2026).
- Road Accident Fund v Russell (656/98) [2000] ZASCA 66; 2001 (2) SA 34 (SCA); [2001] 1 All SA 160 (A) (24 November 2000)
- Groenewald v Groenewald (179/96) [1998] ZASCA 17; 1998 (2) SA 1106 (SCA); [1998] 2 All SA 335 (A) (23 March 1998)
- “Factual causation: One size does not fit all.” De Rebus, December 2013:32 [2013] DEREBUS 247
- https://www.linkedin.com/pulse/law-delict-handy-guide-cobus-kotz%C3%A9
- https://www.oed.com/
Written by Ms Thandekile Lekala, candidate legal practitioner, under the supervision of Ms Nyeleti Vanessa Khosa, attorney, Polokwane branch.