FUNDAMENTALS OF CRIMINAL LAW: CAUSATION

FUNDAMENTALS OF CRIMINAL LAW 

Causation

 Refers to the enquiry as to whether the defendant's conduct (or omission) caused the harm or damage. Causation must be established in all result crimes. Causation in criminal liability is divided into factual causation and legal causation. Factual causation is the starting point and consists of applying the 'but for' test. In most instances, where there exist no complicating factors, factual causation on its own will suffice to establish causation. However, in some circumstances it will also be necessary to consider legal causation. Under legal causation the result must be caused by a culpable act, there is no requirement that the act of the defendant was the only cause, there must be no novus actus interveniens and the defendant must take his victim as he finds him (thin skull rule).

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 273The 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 anyway 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 thetime 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.
1. 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 504Benge (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 novusactusinterveniens.

A novusactusinterveniens 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 prosecutionalleged 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 novusactusinterveniens 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 novusactusinterveniens 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 152The 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'sacts 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 novusactusinterveniens 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 novusactusinterveniens 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 ‘novusactusinterveniens’.

Novus actu sinterveniens 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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