Discover whether, in the criminal law, negligence ever breaks the chain of causation and to determine the circumstances if this is ever so

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The object of this essay is to attempt to discover whether, in the criminal law, negligence ever breaks the chain of causation and to determine the circumstances if this is ever so. In order to do this it is necessary to first identify what causation is.

In basic terms, causation is simply a question of who or what caused a specific event to happen. For example, in a result crime, it must be proved that the defendant’s conduct caused the forbidden consequence.  If this cannot be proved, D is not guilty of the crime. Obviously then, causation is an important issue. It is not, however, always a contentious one, as in many cases the cause is obvious and not disputed.

Questions on causation usually arise in cases of murder. In order to be guilty of murder you must have caused an acceleration of death. It makes no difference if the victim was already sick, injured or dying, as it can be said that since we will all die someday, we are all dying anyway. As Lord Alverstone CJ said in Dyson: -

 “The proper question to have been submitted to the jury was whether the prisoner accelerated the child’s death by the injuries which he inflicted in December, 1907.  For if he did, the fact that the child was already suffering from meningitis, from which it would in any event have died before long, would afford no answer to the charge of causing its death.”

Causation is in some sense a difficult area of the law. As The Criminal Law and Penal Reform Committee in south Australia stated: -

 “There is no more intractable problem in the law, than causation.”

Causation can be split into two parts, factual causation and legal causation. The issue of factual causation is generally one for jury to decide.  However, when answering the question, they must apply the legal principles that the judge has explained to them.  As Lord Salmon said in Alphacell Ltd v Woodward in a passage approved by the House of Lords in Environment Agency v Empress Car Co (Abertillery) Ltd.: -

 “What or who has caused a certain event to occur is essentially a practical question of fact which can best be answered by ordinary common sense rather than by abstract metaphysical theory.”

An example of this is doctors giving evidence. They may say what they consider to be the cause of death, but it is up to the jury to make the final decision.

Another principle the courts look for is what is known as the “but for” principle (sometimes known as “causation - in – fact”). This can be explained by saying that something would not have happened “but for” D’s actions. For example, the victim would not have died but for D’s strangling him. It is apparent that any act D performs cannot be the cause of an event if the event would have happened, in exactly the same way, whether D had committed the act or not. Even this very simple rule may have exceptions, but only in very rare circumstances e.g. if A and B, independently of each other, shot at P and hit him, simultaneously, in the head and the heart, they would both be held to have caused P’s death. The rule that the act must be a sine qua non of the event is only a starting point. If this rule were used alone too many innocent people would be accused. Many acts are sine qua non of an event but are not the cause of it, e.g. If I leave my house to go for a walk and am shot by a maniac it is not my failure to stay at home which caused me to be shot. Common sense must be used in the jury’s decision.  In most crimes it is obvious that D caused the crime by, for example, pulling the trigger. In some situations it is not so simple to determine who caused death. For example, if a Jehovahs Witness, stabbed by D, refused a blood transfusion and died, the judge will give directions that D so injured the victim that they had to choose between transfusion and death.  There can be more than one cause of a consequence and these may come from the deceased themselves. In Swindall and Osbourne, where an old man was run over and killed, Pollock CB directed the jury that it did not matter that the man was drunk or deaf or negligent and contributed to his own death.

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A very important case in the “but for” test is Dalloway. It is shown here that the accused must have been able to prevent the crime. In this case D was driving a cart recklessly when a child ran out in front of him and was killed. It was held that D was not liable for the girl’s death because even if he had been driving properly he could not have avoided her.  D did “cause” her death in the literal sense because she wouldn’t have died if he hadn’t been driving the cart but he was not responsible ...

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