Factual causation
Factual
causation is established by applying the 'but for' test. This asks, 'but for
the actions of the defendant, would the result have occurred?' If yes, the
result would have occurred in any event, the defendant is not liable. If the
answer is no, the defendant is liable as it can be said that their action was a
factual cause of the result.
R v White [1910] 2 KB 124 The defendant put some poison in his mother's milk with the intention of killing her. The mother took a few sips and went to sleep and never woke up. Medical reports revealed that she died from a heart attack and not the poison. The defendant was not liable for her murder as his act of poisoning the milk was not the cause of death. He was liable for attempt. This case established the 'but for' test. I.e. would the result have occurred but for the actions of the defendant? If the answer is yes the defendant is not liable.
Legal Causation
1.
Legal causation requires that the harm must
result from a culpable act:
R v Dalloway (1847) 2 Cox 273 The
defendant was driving a horse and cart down a road without holding on to the
reins. A child ran in front of the cart and was killed. The defendant was not
liable as he would not have been able to stop the cart in time even if he had
been holding the reins.
This
case is the authority for the point that the result must be caused by a
culpable act. Here the culpable act was not holding the reins, which was not
the cause of death.
However,
this does not apply where the offence is one of strict liability:
R v Williams [2011] 1 WLR 588 Court of
Appeal The appellant was driving on a dual carriageway when a man
stepped into the road right in front of him. He was unable to stop and the man
was killed. The appellant was not speeding and had not in any way been driving
recklessly or without care. Two witnesses gave evidence that it would have been
impossible to avoid hitting the man given the closeness to the car when he
stepped out. However, at the time of incident, the appellant had no driving
licence or insurance. He was convicted of causing death by driving without a
licence under s.3ZB Road Traffic Act 1988. He appealed on two grounds:
1. that the offence could not be committed
without proof of fault in causing the death. His failure to have a licence and
insurance was at fault but it wasn’t this that caused the death.
2. Alternatively his driving, although a
cause of death, was minimal in relation to the victim’s own action in causing
death.
Held: Appeal
dismissed. His conviction was upheld. The offence was one of strict liability
and therefore fault in causing death was not required. It was sufficient that
his driving was a cause of death it need not be a substantial cause
2. The
defendant's action need not be the sole cause of the resulting harm, but it
must be more than minimal:
R v Benge (1865) 4 F. & F 504 Benge
(defendant) was a prisoner serving as foreman of a gang of workers who were
taking up railroad tracks and repairing them. Misreading a train timetable,
Benge assumed that a train would not be arriving at the area his gang was
working on until 5:20 p.m. when it fact a train was due to arrive at 3:15. A
worker was sent ahead to signal any approaching train to stop, but instead of
going 1000 yards ahead he went only 540 yards, leaving less time for a train to
stop. On seeing a train approaching, the worker raised his warning sign, but
the engine-driver was not paying careful attention and did not immediately see
the signal. By the time the engine-driver applied the brakes, it was too late
to stop the train before it reached the area where the tracks had been taken
up. As a result, the train crashed and many people were killed. At his trial
for negligently causing the accident, Benge argued that, although he was
negligent, the accident could not have occurred without the negligence of the
flagman in not going far enough up the tracks and the failure of the
engine-driver to pay careful attention.
Held:
The defendant's conviction was upheld. The defendant's action need not be the
only cause. Liability can arise provided the defendant's act was more than a
minimal cause.
2.
There must be no novus actus interveniens.
A
novus actus interveniens is a new intervening act which breaks the chain of
causation. Different tests apply to decide if the chain has been broken
depending on the intervening party.
a).
Act of a third party
The act of a third party will generally break
the chain of causation unless the action was foreseeable:
R v Pagett (1983) 76 Cr App R 279 The
appellant aged 31 had separated from his wife and formed a relationship with a
16 year old girl. She became pregnant. She finished the relationship when she
was six months pregnant because he was violent towards her. He did not take the
break up well and drove to her parents’ house armed with a shotgun. He shot the
father in the leg and took the mother at gunpoint and demanded she took him to
where her daughter was. When there, after various threatening and violent
behaviour, he then took the girl. He drove off with the mother and daughter.
The police caught up with him and he kicked the mother out of the car and drove
off with the daughter. He took her to a flat and kept her hostage. Armed police
followed him. He used the girl as a shield as he came out of the flat and
walked along the balcony. The police saw a figure walking towards them but
could not see who it was. The appellant fired shots at the police and the
police returned fire. The police shot the girl who died. The appellant was
convicted of possession of a firearm with intent to endanger life, kidnap of
the mother and daughter, attempted murder on the father and two police officers
and the manslaughter of the girl. He appealed against the manslaughter
conviction on the issue of causation.
Held: Conviction
upheld. The firing at the police officers caused them to fire back. In firing
back the police officers were acting in self -defence. His using the girl as a
shield caused her death.
b).
The act of the victim
Where
the act is of the victim, the chain of causation will not be broken unless the
victim's actions are disproportionate or unreasonable in the circumstances:
R v Roberts [1971] EWCA Crim 4 Court of
Appeal A young woman aged 21 accepted a lift from the defendant at
a party to take her to another party. She had not met the man before and it was
3.00 am. The defendant drove in a different direction to where he told her he
was taking her and then stopped in a remote place and started making sexual
advances towards her. She refused his advances and he drove off at speed. He
then started making further advances whilst driving and she jumped out of the
moving car to escape him. She suffered from concussion and cuts and bruises.
The defendant was convicted of actual bodily harm under s.47 of the Offences
Against the Person Act 1861. He appealed contending that he did not intend or
foresee a risk of her suffering actual bodily harm from his actions and that he
did not foresee the possibility of her jumping out of the car and therefore her
actions amounted to a novus actus interveniens.
Held: There
is no need to establish an intention or recklessness as to the level of force
under s.47. It is sufficient to establish that the defendant had intention or
was reckless as to the assault or battery.
Where the victim's actions were a natural
result of the defendant's actions it matters not whether the defendant could
foresee the result. Only where the victim’s actions were so daft or unexpected
that no reasonable man could have expected it would there be a break in the
chain of causation.
R v Williams & Davis [1992] Crim LR
198 Court of Appeal. The defendants picked up a hitchhiker on the
way to Glastonbury festival. The hitchhiker jumped out of the car when it was
travelling at 30 mph, hit his head and died. The prosecution alleged that the
defendants were in the course of robbing him when he jumped out and thus their
actions amounted to constructive manslaughter. The trial judge directed the
jury:
‘...
what he was frightened of was robbery, that this was going to be taken from him
by force, and the measure of the force can be taken from his reaction to it.
The prosecution suggest that if he is prepared to get out of a moving car, then
it was a very serious threat involving him in the risk of, as he saw it, serious
injury.’
The
jury convicted and the defendant appealed
Held: Conviction
was quashed as there was an almost total lack of evidence as to the nature of
the threat. The prosecution invited the jury to infer the gravity of the threat
from the action of the deceased.
On the
issue of novus actus interveniens Stuart Smith LJ stated:
"The
nature of the threat is of importance in considering both the foreseeability of
harm to the victim from the threat and the question whether the deceased’s
conduct was proportionate to the threat, that is to say that it was within the
ambit of reasonableness and not so daft as to make it his own voluntary act
which amounted to a novus actus interveniens and consequently broke the chain
of causation. It should of course be borne in mind that a victim may in the
agony of the moment do the wrong thing."
c)
Medical intervention
Where
medical intervention contributes to death, the courts have been inconsistent in
their approach.
R v Jordan (1956) 40 Cr App E 152 The
defendant stabbed the victim. The victim was taken to hospital where he was
given anti-biotics after showing an allergic reaction to them. He was also
given excessive amounts of intravenous liquids. He died of pneumonia 8 days
after admission to hospital. At the time of death his wounds were starting to
heal.
Held: The
victim died of the medical treatment and not the stab wound. The defendant was
not liable for his death.
R v Smith [1959] 2 QB 35 The
defendant, a soldier, got in a fight at an army barracks and stabbed another
soldier. The injured soldier was taken to the medics but was dropped twice on
route. Once there the treatment given was described as palpably wrong. They
failed to diagnose that his lung had been punctured. The soldier died. The
defendant was convicted of murder and appealed contending that if the victim
had received the correct medical treatment he would not have died.
Held: The
stab wound was an operating cause of death and therefore the conviction was
upheld.
R v Cheshire [1991] 1 WLR 844. The
defendant shot a man in the stomach and thigh. The man was taken to hospital
where he was operated on and developed breathing difficulties. The hospital
gave him a tracheotomy (a tube inserted into the windpipe connected to a
ventilator). Several weeks later his wounds were healing and no longer life
threatening, however, he continued to have breathing difficulty and died from
complications arising from the tracheotomy. The defendant was convicted of
murder and appealed.
Held: His
conviction was upheld despite the fact that the wounds were not the operative
cause of death. Intervening medical treatment could only be regarded as
excluding the responsibility of the defendant if it was so independent of the
defendant's act and so potent in causing the death, that the jury regard the
defendant's acts as insignificant. Since the defendant had shot the victim this
could not be regarded as insignificant.
4.
Thin skull rule (egg shell skull rule)
Under the thin skull rule, the defendant must
take his victim as he finds him. This means if he has a particularly vulnerable
victim he is fully liable for the consequences to them even if an ordinary
person would not have suffered such severe consequences. For example if D
commits a minor assault on V who has a heart condition and V suffers a heart
attack and dies. D is liable for the death of V even though such an attack
would result in no physical harm to someone without a heart condition.
This rule applies irrespective of whether the
defendant was aware of the condition.
R v Hayward (1908) 21 Cox 692. The
defendant chased his wife out of the house shouting threats at her. She
collapsed and died. He did not physically touch her. She was suffering from a
rare thyroid condition which could lead to death where physical exertion was
accompanied by fright and panic. Both the defendant and his wife were unaware
she had this condition.
Held: The
defendant was liable for constructive manslaughter as his unlawful act
(assault) caused death. The egg shell (thin) skull rule applied. He was
therefore fully liable despite the fact an ordinary person of reasonable
fortitude would not have died in such circumstances.
R v Holland (1841) 2 Mood. & R. 351 The
defendant was involved in a fight in which he inflicted a deep cut on the
victim's finger. The victim failed to take care of the wound or get medical
assistance and the wound became infected. Eventually gangrene set in and the
victim was advised to have his arm amputated. The victim refused and died.
The
defendant was liable for his death despite the victim's actions in contributing
to his own death
R v Blaue [1975] 1 WLR 1411 Court of
Appeal. The defendant stabbed an 18 year old girl four times when
she refused to have sexual intercourse with him. She was a practising Jehovah's
witness and refused to have a blood transfusion which would have saved her
life. The defendant was convicted of manslaughter on the grounds of diminished
responsibility and appealed arguing that the girl's refusal to accept the blood
transfusion was a novus actus interveniens breaking the chain of causation,
alternatively that Holland was no longer good law.
Held: The
defendant's conviction was upheld. The wound was still an operative cause of
death (following R v Smith & R v Jordan) so no novus actus interveniens and
Holland was still good law.
The
thin skull rule
This
is sometimes known as the eggshell skull rule.
In
addition to the factual cause of death it must be shown that the accused's act
caused the death of the victim. This amounts to the legal cause of death and
there are two tests which can be used to establish legal Causation. One test is
the thin skull test and the other test is whether the original injury was still
operating and whether it was a significant cause of death.
In the
event that there is some pre-existing condition of the victim the question
raised is to what extent, if any, is this condition taken into account? The thin skull test is applied and the result
is that the defendant must take the victim as he or she finds him. As a
consequence, for example, if the defendant produces a gun and aims and points
it at the victim who has a heart condition which is made worse by the
defendant's violent conduct and the victim has a heart attack and dies the
defendant will be responsible in law for the victim's death. It makes no
difference that the victim may have a pre-existing condition or be especially
vulnerable making it more probable that they will suffer greater injury than
someone without that condition or who is less vulnerable. The defendant will be
responsible for the full extent of the injury.
In R v Blaue (1975) a member of the Jehovah's
Witness religious group was stabbed and was hospitalised. Members of Jehovah's
Witness do not believe it is right to have a blood transfusion on religious grounds.
The victim refused to have a transfusion and as a result died. The matter
reached the Court of Appeal who rejected the defendant's argument that the
victim's refusal effectively broke the Chain Of Causation and introduced a New
Intervening Act (novus actus interveniens). The reasoning being that one had to
take their victim as they find them and that 'the question for decision is what
caused her death. The answer is the stab wound. The fact that the victim
refused to stop this end coming about did not break the causal connection
between the act and death'.
Novus
actus interveniens/new intervening act
A
break in the chain of causation arises where there is a new intervening act or
‘novus actus interveniens’.
Novus
actus interveniens is a term that is used in the context of causation. It means 'a new intervening act'. The word 'new' is used in the sense that it
was not the accused's act - so the original perpetrator may not be responsible.
A
chain of causation is sometimes referred to when the defendant triggers a
series of events involving others who may also contribute to the harm or injury
of the victim. The question then arises
whether the original perpetrator should be responsible for the eventual
outcome.
A
break in the chain of causation means that when this occurs the courts
interpret this to mean that the accused’s conduct was not the cause of the harm
or injury. This is unusual but when it
does occur it will result in the accused being acquitted. A break in the chain
of causation arises where there is a new intervening act or ‘novus actus
interveniens’. In these circumstances it may not be appropriate to find the
defendant responsible for the eventual outcome as others have played an
important part in bringing this about.
The law may still want to blame the accused for the way in which he or
she did act but the law will also want to hold responsible the others, for the
part they played, if they were the main
contributor to the outcome.
There
are two cases which probably best illustrate the principles of causation. These are the cases of R v Jordan (1956) and R v Smith (1959).
In R v
Jordan (1956) the defendant stabbed the victim who was admitted to hospital
where he died 8 days later. In hospital the victim had been given anti-biotics
to which he was allergic and he had also been given large
amounts of intraveneous liquid. At the time of his death the stab wounds were
starting to heal.
In the
Court of Appeal it was stated that the direct and immediate cause of death was
pneumonia. Two doctors expressed the opinion that death had not been caused by
the stab wound, which was mainly healed at the time of the death, but by the
medical treatment the victim received. The court held that the defendant was
not liable for the death.
In R v
Smith the defendant had been involved in a fight with another soldier at their
army barracks. During the fight the
defendant stabbed the other soldier twice with his bayonet, medics were called
and took the injured man to the medical station. On the way there the man was
dropped two times and on arrival at the medical centre he did not receive the
appropriate treatment and the medical officer did not diagnose the seriousness
of his injuries and that his lung had been punctured in the attack. The soldier
died and the defendant was convicted of murder.
He appealed claiming that if the victim had received the appropriate
medical treatment he would have survived. The conviction was upheld as the stab
wound was the "operating and substantial cause" of death.
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