The concept of negligent medical care as a novus actus interveniens, or an intervening act that breaks the causal link between the accused’s actions and the victim’s death, has been explored in various court cases. In the case of Tembani v S [2007] 2 All SA 373 (SCA), the court had to determine whether the victim’s death was a result of the accused’s actions or the negligent medical treatment she received.
The accused was convicted of murdering his girlfriend by shooting her twice, and the victim succumbed to her injuries 14 days after the incident due to septicaemia caused by the gunshot wounds. The medical treatment was found to be inadequate and negligent, as the victim was insufficiently attended to in the ward for four days, allowing the wounds to become septic.
The appeal hinged on whether the defendant’s actions directly led to the victim’s death or if medical malpractice was the primary factor. The first part relied on the conditio sine qua non principle—whether the victim would have survived absent the accused’s conduct.
When evaluating legal responsibility, the court weighed broader legal principles and past rulings.
Negligent Medical Care and Causal Nexus
The court’s reasoning in Tembani v S suggests that for the accused’s actions to form part of the causal nexus, the original wound inflicted by the accused should be of such a nature that, without any medical treatment or assistance, the deceased would nonetheless have succumbed to their injuries. This view is echoed in other cases, such as R v Smith [1959] 2 All ER 193, which stated that if the original wound is still an operating and substantial cause of death, then the death can properly be said to be the result of the wound.
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In State v Perez-Cervantes 141 Wash. 2d 468, 6 P.3d 1160 (Wash. 2000), the court held that the accused’s actions were the proximate cause of the victim’s death, despite the victim’s failure to seek medical attention and his decision to smoke drugs.
The case of Swan v The Queen [2020] HCA 11 is also relevant, where the court confirmed the conviction of the accused for murder, despite the victim’s death being caused by complications stemming from a fractured femur that occurred nearly 8 months after the initial assault. The court held that the accused’s actions were a substantial or significant cause of the victim’s death, and that the causal nexus was not broken by the victim’s subsequent injuries.
In S v Little 57 Wn.2d 516, 358 P.2d 120 (1961), the court adopted a similar approach, holding that the accused’s actions were the cause of the victim’s death, despite the victim’s failure to follow medical advice and his subsequent falls from the bed. The court asked the question “Why did Johnson fall?” and concluded that it was due to the deceased’s state of health flowing directly from the accused’s actions.
Philosophical Insight and Publication Information
Brandon Sanderson observed that even small actions have consequences, and while people may choose their actions, they rarely choose the resulting outcomes (forthejoyofbooks.com, accessed 20-4-2026). The observation highlights that individuals often fail to foresee the extensive impact of a single act, recognizing only immediate effects while the broader ripple remains unseen.
The analysis was originally published in the October 2026 issue of De Rebus, identified as DR 17. The piece examines how negligent medical care intersects with criminal culpability, drawing on case law to illustrate the legal principles involved. The discussion centers on the relationship between medical negligence and criminal responsibility.
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Overarching Principle
In S v Mokgethi en Andere 1990 (1) SA 32 (A), the court held that the causal nexus was broken when the deceased failed to follow medical advice, resulting in septicaemia and death. However, in R v Mubila 1956 (1) SA 31 (SR), the court rejected the argument that the deceased’s failure to obey medical instructions acted as a novus actus, and concluded that the accused inflicted a blow from which death was likely to result.
The case studies indicate that an accused may be criminally liable when a victim’s failure to follow medical advice is closely linked to the original injury and the accused’s actions, rather than being a negligent, independent cause of harm or death.
The courts must consider the natural consequences flowing from the accused’s actions and the extent to which those actions contributed to the victim’s ultimate demise, as seen in the case of State v Baruth 47 Wash. 283, 91 Pac. 977 (1907), where it was held that “[w]here one unlawfully inflicts upon the person of another a wound calculated to endanger or destroy life, it is no defence to a charge of murder where death ensues to show that the wounded person might have recovered if the wound had been more skilfully treated.”
When courts assess the causal nexus, proper consideration must be given to the extent to which the accused’s actions contributed to the victim’s ultimate demise, and whether the original injury inflicted by the accused was so serious that death would have ensued without intervention, as stated in S v Little at para 6, “[m]alpractice with respect to the original injury or wound is no defense, whereas malpractice resulting in new and different injuries which prove fatal would be a defense”. This consideration is essential in determining the accused’s liability for the victim’s death.
