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 for it in criminal law because it was shown that the death was not due to his negligence. Negligence did not break the chain of causation in this instance.
Proving factual or “but for” causation does not prove legal causation. Legal causation is concerned with whether criminal responsibility can fairly be attributed to the accused. Another issue, which arises, is whether D’s action was a substantial cause of death. The term ‘substantial’ in this case means only the cause must be more than di minimis. The trial judge in Kimsey translated this as meaning “slight or trifling”. Also D’s act need not be the sole or main cause of death. It is sufficient that his act contributed significantly to the victims demise. “Significantly” meaning “more than negligibly”. Therefore, there is no requirement to show that the defendant’s act was the dominant or even substantial cause of death. This was the case in Cheshire.
The chain of causation may be broken by the act of another, intervening between that of D and the result he is alleged to have caused. This is known as novus actus interveniens. As Robert Goff LJ said in Pagett: -
“[The intervening] act was so independent of the act of the accused that it should be regarded in law as the cause of the victims death to the exclusion of the act of the accused.”
The intervening act must also be ‘free, deliberate and informed’ to break the chain of causation. The problem is illustrated in Pagett. In this case D was using a girl as a shield when he shot at the police. The police fired back and killed the girl. It was held that D was liable for her death. The chain of causation was not broken by the police’s shooting of the victim. Their actions were found to be instinctive and, therefore, not free, deliberate and informed.
If their actions had broken the chain of causation it would have been an example of novus actus interveniens. D’s conduct would no longer be the operating cause of death, but merely part of the history. This case demonstrates how there can be more than one cause. The police were the immediate cause of death, but the defendant was held to have been the legal cause. The basic rule is that D can only escape liability if the supervening event was unforeseeable. As Lord Parker CJ said in Smith: -
“Only if the second cause is so overwhelming as to make the original wound part of the history, can it be said that the death does not flow from the wound.”
The jury is not asked to choose which was the dominant cause. It only has to determine whether or not D’s act contributed significantly to the victim’s death.
One of the main areas where the question of whether the chain of causation has been broken is in cases involving medical treatment.
As previously discussed, the criminal law insists on D’s act being both a “factual” and a “legal” cause of V’s death for the defendant to be held liable for it. In the medical treatment cases currently under discussion the issue of factual causation is very unlikely to arise since medical treatment will almost never prove to be necessary in the absence of the original injury inflicted by D. Legal causation, on the other hand, is more problematic. The basic rule is that D will be held criminally responsible for P’s death providing that any one of the three criteria to be discussed below are satisfied and of course, that his acts are factual causes of P’s death.
The first principle derived from cases concerning medical negligence is known as the “operative cause” principle. This means that even if the victim would not have died but for the negligence of their doctor, D is still liable for their death providing that the wounds the defendant inflicted were still an “operating cause” at the time of the victims death. An example of this principle can be seen in Holland. In this case D attacked V and seriously injured V’s finger. V was advised by doctors to have his finger amputated, but refused. He subsequently contracted tetanus and died. D was held liable for the death despite his defence that the wound he inflicted on V only became life threatening because of V’s neglect of it. As J.C. Smith says: -
“Maule J’s direction to the jury reflected the common laws answer to the problem. He who inflicted an injury which resulted in death could not excuse himself by pleading that his victim could have avoided death by taking greater care of himself.”
Another example comes from Smith. The victim was stabbed by D in a brawl. On the way to the dressing station the V was dropped several times and received “thoroughly bad” medical treatment once he got there. V subsequently died. Giving his judgment on the case lord Parker CJ said: -
“If at the time of death the original wound is still an operating and substantial cause, then the death can properly be said to be the result of the wound, albeit that some other cause of death is also operating.”
The wound inflicted by D was held to be an operating and substantial cause of V’s death so his conviction for murder was upheld. This is a clear case of medical negligence failing to break the chain of causation.
The operative cause principle also applies in Malcherek. In this case D wounded V to the extent that she required surgery. V underwent the surgery and seemed to be recovering, when she suffered a relapse and was placed on a life support machine. Doctors then found her to be “brain dead” and turned off the machine. D argued that the doctors should not have turned the machine off, but it was D who was on trial, not the doctors and evidence from other doctors who might not have turned the machine off could not be admitted. The wounds inflicted by the D were still the operative cause of the death, therefore he as liable for it.
This principle can have far reaching consequences when applied to medical treatment. It seems very harsh that D be liable for the V’s death if, for example, V is hospitalized by D and could be saved by a simple dressing, but is left to bleed to death on the hospital floor because a negligent doctor choose to watch Casualty instead of treating them. However this is the law. It is evident that it is only the actions of D that put you in a position to receive this negligent treatment in the first place. Therefore D is always liable, providing the wound he inflicted is still operative at the time of death.
However, the boundaries of this principle are shown in Jordan. In this case D’s conviction for murder was quashed by the Court of Appeal. The facts of this case are: - D and the victim got into a fight in a café in Hull, which resulted in D stabbing V. V was taken to hospital where his wound was stitched up, but he nevertheless died a few days later. It was held that the V’s death was not caused by the stab wound inflicted by D but by the negligent treatment received in hospital. V had been given a drug, terramycin, which he was intolerant to. This was noticed and stopped by one doctor but recommenced by a second doctor the following day. This was described by Hallet J in his judgement as “palpably wrong” and as the “direct and immediate cause of death”. This is a distinct case of negligence breaking the chain of causation. However this is very much an exception, Hallet J calling it an “exceedingly unusual case.” In Jordan the wound inflicted by D was found to no longer be operative at the time of the victims death, not only because of the incredibly incompetent medical treatment, but also because the wound had almost healed. Jordan has been critisised for placing emphasis on the actions of the doctors when it was not they who were on trial.
It is evident from looking at these cases that the chain of causation will virtually never be broken by medical negligence and that the law will follow this rule as set down in Smith and as applied recently in Cheshire and Mellor. This rule will only be broken when the original wound has almost healed or where the medical treatment received is so bad it was “the direct and immediate cause” of death, if the doctor were to shoot an injured patient in the head, in the name of medicine, for example.
The second principle this essay will look at is known as the “foreseeable result” principle. This can be explained by saying that if D causes something to happen to V that is reasonably foreseeable to cause his death then D is liable for the death, even if the injury inflicted is not an operating cause of it. A good example of this was illustrated in Pagett. Here it was obvious that the police would return fire after the defendant fired at them. Their actions were a foreseeable result of D’s behaviour and so D is still liable for V’s death even though it was the police’s bullets that killed her.
It is clear that in cases involving medical treatment it will be extremely hard for D to escape liability for his actions and to break the chain of causation because it is foreseeable that V will seek medical treatment for their injuries
This is shown in the case of Forrest where D wounded and hospitalized V who ultimately died of blood poisoning due to bad ventilation in the hospital ward in which he was being treated. The fact that the wounds would not have caused V to die but for the blood poisoning was of no comfort to D as he was convicted of manslaughter.
An excellent example of the “foreseeable result” principle as applied to medical negligence can be seen in the case of Cheshire. In this case the victim was shot in the leg and stomach by D and was taken to hospital where he developed breathing difficulties and a tracheotomy was performed. V died two months later due to problems arising from the removal of the tube from his throat. The medical staff treating V failing to diagnose the problem. It is clear that the wounds inflicted by D were not the cause of V’s death. However, the Court of Appeal upheld D’s conviction for murder. As evidence a consultant surgeon, Mr. Eadie, said: -
“The cause of his death was the failure to recognize the reason for his sudden onset and continued breathlessness after the 8th February.”
In his view the cause of V’s death was the negligence of the doctors. Although the medical treatment V received was negligent, it was not reckless or bad enough to be considered “abnormal” and so break the chain of causation.
As illustrated again in the above cases it is extremely difficult for medical negligence to break the chain of causation. In order to exclude D from liability in medical treatment cases, the treatment given must be so harmful that it itself causes V’s death and render the original act by D insignificant. It should be noted again that in Jordan the chain is broken despite it being foreseeable that the victim would undergo medical treatment after being stabbed. Nevertheless, this is very much an exception.
The third principle to be discussed is that ‘you take your victim as you find him’. This comes from Lawton LJ’s judgement in Blaue: -
“It has long been the policy of the law that those who use violence on other people must take their victims as they find them.”
In this case V, a Jehovahs witness, was stabbed four times by D, causing her to require a blood transfusion. V refused this as it was contrary to her religious beliefs and subsequently died. D’s defence that V caused her own death by refusing the blood and therefore not acting in a foreseeable way was dismissed and his conviction upheld by the Court of Appeal. Lawton LJ saying that you must take “the whole man, not just the physical man”, as you find them, meaning that V’s religious beliefs were no defence for D.
However, what would have been D’s liability if V had been refusing treatment out of spite? Following the principle set out in Blaue, D would still be liable for V’s death. This is reaffirmed by the case of Dear. In this case D slashed V with a Stanley knife after allegations that V had sexually abused D’s 12 yr old daughter. V died of his injuries 2 days later, but there was evidence that V had intentionally caused his own death by reaggrevating his wounds. The Court of Appeal upheld D’s murder conviction and suggested that it didn’t matter that V’s actions were unforeseeable.
This decision seems to disagree with previous cases in which it has been said that the chain of causation is broken when the victim does something which could not reasonably be foreseen to be a “natural consequence’ of D’s actions. Or to put it another way, when V does something “daft”. An example can be found in Roberts, where V was traveling in a car with D who made sexual advances towards her. V then jumped out of the moving vehicle and sustained injuries. D was held liable. It is because of this confusion that it has been said that the rule of “you take your victim as you find him” should be left to the law of tort.
Nonetheless, we can see from the Blaue case that a persons refusal of medical treatment for whatever reason will not break the chain of causation. This is clear since the wounds inflicted by D to require the medical treatment will be the operating cause of V’s death.
This essay has sought to identify if and when negligence can break the chain of causation in criminal law. It has attempted to do this by concentrating on medical treatment cases and by examining the way the chain can be broken and the criteria that the prosecution must satisfy to prove a defendant criminally responsible for a victim’s death.
In conclusion it is extremely difficult to break the chain of causation, especially in cases where negligent medical treatment is involved. For the chain to be broken in this way, the negligence must not only be so terrible as to be enough to cause the death in itself, but must also occur at a time when the original injuries inflicted by D are no longer seen to be an operating cause of V’s death. This is virtually nonexistent. The law works in this way, as the courts are extremely reluctant to place the blame for patient’s deaths on doctors who are trying to save peoples lives.
It is apparent that the Judiciary, through the development of case law, have reached the conclusion, that with few exceptions. The chain of causation will not be broken by medical negligence.
Bibliography.
Smith and Hogan, Criminal Law Cases and Materials, 7th Ed. (1999), J.C. Smith.
Smith and Hogan, Criminal Law, 9th Ed. (1999), J.C. Smith.
Medical Treatment and the Chain of Causation, John E. Stannard.
Criminal Law, Michael Jefferson.
Causation in Criminal Law: A New Look at Jordan, Smith, Blaue and Cheshire, Solomon E. Salako.
Regina v. Malcherek, The Weekly Law Reports, May 22, 1981.
Regina v. Smith, 2 Queens Bench Division 1959.
R v. Cheshire, All England Law Reports, 1991.
Court of Criminal Appeal, James Clinton Jordan.
Criminal Law and Penal Methods Reform Committee, South Australia, 4th Report
Smith & Hogan, Criminal Law Cases and Materials, 7th Edition (1999), P54
[1959] 2 All ER 193 at 198
Michael Jefferson, Criminal Law, P41
(1886) 20 South Australia LR 78
From Evans, [1992] Crim LR 659