Causation - the 'but for' test.

GCSE Religious Studies (Philosophy & Ethics)

CAUSATION

It must be proved by the court that the defendant caused the victims death even if he may not be the sole/main cause of death.

It must be stressed that a death must be caused by the unlawful act of the assailant. However, in some cases, the defendant might not have been directly responsible for the final act which caused death but will still be liable for the homicide because he set in motion the chain of events which led to it. Causation is applicable to many offences but I will concentrate particularly on those cases involving fatal offences against the person, in the form of murder and manslaughter.

Establishing the chain of causation

There are no rules laid down by statute to govern the concerns of causation; but principles have been established by case law, as each problem rose before the courts. In few cases it is difficult to distinguish whether the defendants conduct caused the death in question, but the jury must be convinced beyond reasonable doubt. In some trials the defendant may argue that someone/something else caused the death, or at least contributed to it, or it was the victims own fault that would need further exploration. Prior to fixing liability to the defendant the court will consider the following:

-did the conduct of the accused cause the resulting harm and, if so

- can he be held to have caused death in LAW?

The judge’s task is to explain the legal principles to the jurors and they must then decide whether the prosecution has established the guilt of the accused beyond reasonable doubt (through application of the principles to the facts).

Factual cause of death

The “But For” test established in R v White (1910) must be applied in order to establish causation in fact. This is where it must be proved that, but for the defendant’s acts, ...

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-did the conduct of the accused cause the resulting harm and, if so

- can he be held to have caused death in LAW?

Factual cause of death

The “But For” test established in R v White (1910) must be applied in order to establish causation in fact. This is where it must be proved that, but for the defendant’s acts, the death of the victim would not have occurred:

Def placed poison in a glass containing his mothers drink-she drank the contents of the glass, but died of a heart failure before the poison could take effect.

White was convicted of attempted murder. Bearing causation in fact, the defendants act in placing poison in the drink did not in anyway cause her death. “But for the defendants act would his mother have died?” the answer is yes; she would have died anyway, thus disproving causation in fact.

The legal cause of death

After satisfying the test for factual causation, therefore it still needs to be shown that the def’s act was a substantial cause of the death and that no intervening act had broken the chain of causation. If the death is caused by a combination of two causes, and the def’s act remains “an operating and a substantial cause” then the def is still liable.

R v Malcharek (1981) the assailant attacked a woman causing such injuries that she was put on a life support machine. In no hope of recovery the doctors decided to switch the life support machine off while she was “brain dead”. Half an hour later she was pronounced dead – the def was convicted of murder and appealed on the grounds that the doctors had broken the chain of causation between the attack and the death of the victim by switching off the life machine – the court of appeal dismissed this.

The substantial cause of death was due to the original wounds inflicted by the def not the “mere effect of the life support machine”; as soon as the machine had been switched off, the wounds continued to cause the death.

Natural consequences of the def’s act – victim dies as result of some act/event which would not have occurred but for the act done by the def and which is a natural consequence of the def act – it was FORESEEABLE as likely to occur in the normal course of events; the def will still be held to have caused the death e.g. If a victim is attacked and left lying in the gutter and run over/dies from loss of blood/infection/exposure the attacker will be responsible. However the def wouldn’t be liable if the victim was struck by lightening/killed via another assailant.

R v Pagett (1983) where the def’s conviction for manslaughter was upheld , even though the shot that killed his pregnant girlfriend was not fired by him, but by the police seeking to detain him.

A characteristic of the victim - if the intervening act is a characteristic of the victim then it does not have to be foreseeable and will not break the chain of causation. The “thin skull” Rule, that provides that a def must take his victim as he finds him, will apply.

If D hits V with a degree of force that would usually cause nothing more than slight bruising, but because V is delicate and suffers considerably, D cannot rely on evidence of V’s physical shortcomings to show the chain of causation has been broken.

R v Hayward (1908) a man chased his wife into the street shouting threats and kicked her. She collapsed and died from a thyroid condition which made her peculiarly susceptible to physical; exertion and fear. He was convicted of manslaughter.

Death caused by medical treatment – causation can cause complications in those cases concerning negligent medical treatment of the original injury in homicide cases. The courts have concluded that in whatever circumstances the medical treatment received by a victim, following an attack by the def, will relieve f liability for homicide if the V subsequently dies.

R v Jordan(1956) def stabbed V who was admitted to hospital and died 8 days later – in C/A, ‘fresh evidence’ of two doctors was allowed to the effect that (a) in their opinion death had not been caused by the stab wound, which was mainly healed at time of death, but by the medical treatment; (b) the victim had been given anti-biotic to which he was allergic to, and and large amounts of introvenous liquid; and (c) according to evidence the treatment was “palpably wrong”, and the direct and immediate cause of death (pneumonia).

To relieve the def of liability, the medical treatment must (a) be independant of the def’s act and, (b) be potent in causing death, thus (c) reducing the def’s act to insignificance.

Where the victim has tried to escape and caused himself harm –

Mackie (1973) a manslaughter conviction was upheld when a father frightened his 3 yr old son so severely that the boy fell down the stairs and was killed.

It is necessary in some cases to give a jury further guidance on the issue of causation, particularly where it is possible that the victims reaction was out of all proportion to the def’s threat.

SHAHNOOR BHUIYA