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Sine qua non - Factual causation
- It must be proved that but for the D’s act or omission the victim’s death would not have occurred
- D’s act cannnot be the cause of an event if the event would have occurred in precisely the same way had the act never been done.
- White (1910)
- Easy to satisfy – Very Broad – This is why we needlegal causation
- D must be a more than minimal cause of harm - de minimis principle - a 'more than slight or trifling link'
- …an operating cause and substantial cause….
- The injury inflicted by D is an operating cause and substantial cause of V’s death
- The word ‘substantial’ probably only means that Ds contribution must not be so minute that it will be ignored under the de minimus rule
- R v Malcharek and Steel (1981)
- People v Lewis (1899)
Death caused by medical treatment of an injury
- If a wound was an operating and substantial cause of death, the D is guilty of homicide,however badly the wound was treated
- Medical treatment rarely breaks the chain of causation, unless so independent of the D's conduct and making it insignificant in causing the death
- If a wound was not an operating and substantial cause of death, but V was killed by the mistaken administration of a deadly poison by a nurse, or negligent surgery,the D may or may not be guilty if homicide
- The jury should not regard it as excluding the responsibility of the accused unless thenegligent treatment was so independent of his acts, and in itself so potent in causing death
- What does so independent and so potent mean?
Factual Causation - De minimis non curat lex
The acceleration of death caused by D’ conduct must be more than merely trivial.
The intervening act is a natural consequence of D’s act
- This means that the intervening act was foreseeable by the jury as likely to occur in the normal course of events
- So even if the jury which the D may have inflicted is not an operating cause of death the D is still held to have caused the death
- The intervening act may also be a human intervention – either by D or a third party
In murder and manslaughter it must be
proved beyond reasonable doubt that D caused the death of V
- An act or omission done with intent to cause death may be an attempt to commit murder but it will not be the full offence unless it actually causes death
- It makes no difference that the event desired by D happens if it does not happen as a result of his conduct
- Whether the Ds conduct caused the death is a question which must be left to th e jury
- D can only be said to have caused a death where his conduct is both a cause in fact and a cause in law of the death.
D must take his victim as he finds him – ‘Thin skull test’
- D cannot complain if the V is particularly susceptible to a physical injury
- Mamote- Kulang (1964)
- ‘the whole man, not just the physical man’
- If D’s act causes V to act or to fail to act and this causes Vs death, D will be held liable for Vs death even although Vs intervening conduct was not foreseeable as likely to occur in the normal course of events
- Ds mother found dead with a glass of cyanide found next to her. However her death was due to heart failure caused independently –She hadn’t drunk the cyanide.
- D not liable for her death
- Liable for her attempted murder- Sine qua non is not satisfied here
R v Malcherek and Steel (1981)
- D's victim on life-support machine and machine turn on
- On appeal it was argued the doctors caused death by switching off the machine. Appeal dismissed. The original injuries were still an operating cause of death although not necessarily the only cause of death.
- CA said 'bizarre' that turning off the machine could break the chain
People v Lewis (1899)
- D shot V in stomach inflicting a mortal wound. Within a few minutes when no-one else was present except a boy of 9, the victim produced a knife and cut his own throat, dying almost immediately.
- Held gun shot was the operating cause of death
R v Jordan (1956)
- D stabbed man who almost recovered but doctor gave antibiotic without checking and victim died.
- D was not liable as doctors conduct 'palpably wrong'
- Held the original wound was no longer an operative cause of death
R v Smith (1959)
- D stabbed C twice.
- Medical officer didn’t treat case as urgent and did not realise that one of the wounds had pierced a lung and was causing serious internal bleeding.
- Medical negligence did not break the chain of causation
- Said by court the D act must have been an 'operating cause and a substantial cause' for the death of victim
R V Chesire (1991)
- D shot man who needed surgery and tracheotomy. Two moths later victim died of a tracheotomy complications.
- CA upheld conviction for murder. The test proposed by the court in cases where the wound was not an operating cause of death is as follows (Chesire test)
- The negligence must be 'so independent' and 'so potent' to regard the D act insignificant
R V Pagett (1983)
- D was attempting to scape being captured by armed police and used his GF as a human shield. He shot at the police and his GF was killed by shots fired at him in self-defence by the policeman.
- The police negligence in this case was deemed to be reasonably foreseeable that they would return fire.
- D lost control in high speed car chase, killing other driver
- D's act sufficient cause, although not sole cause as other drive was also speeding.
- De minimis
R v Roberts (1972)
- V, a women, agreed to travel with the D in his car to a party. She jumped out her car think D was going to grab her.
- D satisfied the 'but for' test as he caused the injuries and was convicted.
- The court stated that the matter would have been different if the girl had done something ‘so daft’ or unexpected…that no reasonable man could be expected to foresee it’
- D in group shouting abuse and kicking hostel door. As door kicked open, V fell/jumped out of window and was badly hurt.
- On appeal the D argued that Vs response was daft. The CA upheld the conviction.
- D deliberately cut man's finger. Cut became infected and man told amputation necessary but he delayed and died of blood poisoning
- D held liable for man's death even though victim's behaviour is extreme
- D stabbed Jehovah's Witness, who refused life-saving blood transfusion and died
- D must take V as he finds him – This case shows that it includes their religious beliefs
Mamote- Kulang (1964)
- D punched his wife with considerable force on her side. Such a blow would not normally be fatal.
- However his wife died soon afterwards. The blow ruptured her spleen which was at the time ‘large, soft and mushy’.
- The High Court upheld the conviction for manslaughter The punch was the sole cause of death and the D must take the V as he finds him
- D gave syringe of heroin to man who self-injected and died
- Convictions quashed based on free-will to inject
Problems in the law on causation
- Sine qua non - is very easy to satisfy so it is a very broad test
- De mini mis – More than trivial is vague and hard to define. This could lead to juries applying different standards in different cases
- Taking your victim as you find them – Where V has a medical condition which makes the injury more serious, should D be liable for the more serious injury? It can be seen as unjust where D dos not know about the medical condition. Does D be liable when the V refuses treatment?
- Language of causation can be complex and may be hard for the jury to understand
- Thin skull test means not just the physical person but the ‘whole man’ is potentially very wide and could make it too easy to find someone guilty
- Characteristics of D aren’t taken into account by any of the test
- Cheshire test- Unclear as to when chain of causation is broken
- Too lenient on D?
- Jordan to Cheshire became harsher
- What does independent and so potent mean?
- Why are intervening acts treated differently compared to medical negligence?- Would be treated the same if a reasonable person compared to the D would have foreseen the acts. Medical negligence may not have been foreseen
- Inconsistent jury verdicts- the jury are responsible for findings of fact- The daftness test- different juries may have different views about what is daft
- Requirement 1: D's act must be a more than minimal cause of V ‘s(victim’s) death.
- Requirement 2: D’s act must have been an operative cause at the time of the death
- Requirement 3: D’s act must have accelerated V’s death (by more than a matter of minutes).
- Requirement 4: There must be no intervening act which breaks the chain of causation which flows from the D’s illegal act.
- In the past it was thought that the Ds act had to be a substantial and operating cause (Smith)
- Then Pagett said it had to be a significant cause,
- Then Kimsey which is current law said that it had to be a more than minimal cause and that this meant more than trivial or trifling.
- ***D’s act doesn’t have to be the only/sole cause of V’s death (Pagett (1983)
Malcherek and Steel - The injuries must still be an operating cause of death
- When considering legal causation consideration has to be given to the “chain of causation” which flows from Def’s illegal conduct to the illegal consequence.
- For criminal liability (a conviction) to follow the chain must not be broken.
- The only new acts which break the chain of causation (novus actus interveniens) are those which the defendant could not have reasonably foreseen would flow from his/her original act (i.e they are completely unexpected/unforeseen/out of the ordinary)
- The courts are keen to leave criminal liability with the perpetrator of the original (first)criminal act.
Things that break the chain
- Unexpected natural events
- Intervening acts of a 3rd party
- Actions of the Victim
Unexpected natural events
- An earthquake or a flash of lightening would break the chain but punching someone and leaving them on the beach with an incoming tide would not (reasonably foreseeable consequence)
- Hallet - D knocked V unconscious by the sea when he made a homosexual advance to him, he then drowned. D was held liable as it was deemed reasonably forseeable.
Intervening acts of a 3rd party
- The defendant will only escape liability if the intervening act by a third part was not reasonably foreseeable.
- The courts have persistently been unwilling to allow intervening medical treatment (administered/given because of the original injury) to break the chain of causation.
- Many argue that this is for public policy reasons and the cost to the public purse if the victim/their family were able to claim compensation from the NHS.
- Current law on medical negligence is Cheshire (1991) - medical negliance will only break the chain if the treatment is so independent of the original act and is so potent in causing death.
Actions of the Victim
- The victim could break the chain of causation if they do something unexpected/unpredictable (not reasonably foreseeable).
- Roberts (1971) set out the daftness test
- The chain will not be broken if the victim chooses not to seek medical treatment/delays seeking medical treatment.
What the victim does
- Acting in a foreseeable way does not break the chain - 'daftness' test - Roberts 1972
- Acting in an unforeseeable way may break the chain - Williams 1992
- Defendant must take their victim as they find them -'thin skull test' - Mamote-Kulang 1964
- Self-neglect does not break the chain even if a refusal to be treated is extreme - Holland 1841
- Deliberate voluntary acts of the victim can break the chain - Kennedy 2007
- Causation in fact is simple and effective
- It is justifiable as a natural basis for liability
- It fits the concept of personal responsibility
- It always goes back to the original actor which may be unjust
- Causation in law if often hard to prove and policy consideration can override legal principles
- Other factors such as 'thin skull' can cloud the issue; is conviction fair when something is completely invisible or unpredictably severe?
- That a chain of causation exists is often hard to define and may be stretched to facilitate conviction
- Policy factors with regard to the police and doctors are essential so they can do their job but can appear to be generous and not provide justice for victims and their families.
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