Causation,thin skull rule Flashcards
Two key tests for causation what are they?
Factual causation explain it.
Legal causation explain it.
Please define NOVUS Actus Interveniens:
Factual causation
involves the butt for test, this says that D’s conduct must be the factual cause of the prohibited result. The test for factual causation requires the jury to consider whether but for the defendants unlawful actions would the prohibited result have come about?
Stephen Shute has said”the law tends to regard causation in terms of broad generalisations based on common sense principles, rather…than to mimic…philosophers”.
Case of Dyson
V was dying of meningitis, when D inflicted injuries upon V. Medical evidence shows that V died from the injuries D inflicted upon V. Butt for D inflicting injury upon V, V would not have died in those circumstances and in that place, at that time. D was the factual cause of V’s death. If you put D’s actions to the side V wouldn’t have died in the same circumstances and in the same place.
Case of White- D put poison in V’s drink, after taking a few sips of the drink. v died of a heart attack. Crucially medical evidence showed that the heart attacked was unrelated to the poison. So v would have died exactly the same way, exactly the same time. Butt for D’s actions would V have still died at the same time and in the same place?! Yes. Therefore, D cannot be the factual cause. Factual causation is more of an analysis and there can be more than a single factual causation.
Legal causation
with legal causation we go on to ask was D a substantial and operating cause?
Case of Mellor stressed that there may be several substantial and operating causes.
Substantial basically means was D’s contribution more than minimal (Hennigan De minimus). There is however no litmus test for finding what substantial means.
Case of Cato establishes that it must be more than substantial and insignificant.
Case of Crown v L: More than negligible.
Case of Chesur: Must contribute to the outcome to a significant extent.
Case of Kimsey: The contribution must not be slight or trifling.
Case of Hennigan: More than De minimis, it is also not meant in a mathematical sense. Judge misdirected the jury in this case my stating he was not guilty if he was less than 1/5 to blame.
Operating
The defendants act must be an operating cause of the result. Most commonly the D will try to argue there has been a break in the chain of causation or a NOVUS Actus interveniens. The act of someone else taking responsibility for the chain of events.
Case: Rafferty-D and his friends attacked V, D then withdrew and ran away. His friends then drowned V in the sea. The friends (Taylor and thomas) were found to be the NOVUS Actus interveniens, so D was not guilty of murder however he was of battery.
Example: The Dr who takes a blood sample from a patient who is dying from a gun shot wound, the patient then dies. Legal causation? None because it’s not more than minimal, factual maybe.
NOVUS ACTUS INTERVENIENS
A free voluntary act of a third party which renders the original act no longer a substantial and operating cause of the result.
There are two types of crimes in causation what are they?
Result crimes-These are offences which require proof of prohibited consequences e.g. Murder is a result crime, here it is necessary to demonstrate that D’s conduct caused a prohibited consequence. In some instances you have complex/unusual facts at hand and so you are required to think about causation. It is impossible to distil the test if causation to a straightforward analysis.
Conduct crimes- e.g. Rape; with these causation is not such an issue. We are less bothered about consequences, more with situation/circumstances when v is not consenting. In most result crimes, causation will be straightforward/not a big deal.
How about concurrent causes, please provide an example.
Sometimes there can be concurrent causes. D may still be the legal cause along with other peoples acts. Take D1 and D2, they simultaneously shoot V at the same time. V dies of blood loss from both bullet wounds. In this situation both are equal causes, and have both made more than a minimal causation. Both wounds are operating at the same time of death. So it is therefore possible to have multiple causes.
Case of hains: It is enough that the defendants conduct is a cause, it doesn’t need to be the sole cause.
If the contribution of D was substantial, but not operating on V at the time of death. Then here D may not be liable, because we said the original contribution needs to be operating.
Sometimes the original act may no longer be operating due to an intervening act. Please provide an example of an intervening act.
Hint: free voluntary and informed
The case of Rafferty- D and his mates attacked V. D then ran away from the scuffle, he withdrew. D’s friends remain and subsequently drown V in the ocean. There actions where found to be a NOVUS ACTUS INTERVENIENS. Even though D’s attack was substantial at the time, D did not actually contribute to the death. The courts usually ask was the intervening act of a person free voluntary and informed?
Case of Kennedy- D had prepared a syringe of heroine for V, V injected himself with they drug, dying shortly after. D was charged with manslaughter. On the basis of causing V’s death.
HoL- quashed the conviction on application of the legal causation test. D’s act wasn’t operating the act of giving V the injection was a: NOVUS Actus interveniens. In Kennedy D had commited an offence in the sense that D had supplied the drug but you couldn’t draw a casual link between that and V’s death. As V was a free autonomous agent capable of making the decision.
The principle therefore is:
If A does an act after which B does an act, then if B’s act is:
1) a free, voluntary, and informed act; and
2) it renders A’s act no longer a substantial and operating cause
A will not have caused the results. B’s act will be a novus actus intervenins.
Only a free, voluntary and informed act of a this party will break the chain of causation.
If D is not acting voluntarily his or her actions will not be the NOVUS actus interveniens.
Case: Wise v Dunning
A religious preacher gave an anti-catholic speech. He realised there were Catholics in the audience, and was aware they would react violently. The court took the view that the violence was an instinctive reaction of the listeners, and so was not truly voluntary. ‘Academics think this has stretched voluntary too far.
D is not acting freely if the facts are like Scott v Shepard- D threw a Firework into a crowded area. It hit person A who instinctively threw it away. It then hit B who did the same hitting C, and finally C threw it hitting D where it exploded. D was liable because none of the people in between the action where free voluntary and informed.
Case of Paggett: Defendant kidnapped his girlfriend she was killed by a police marksmen when trying to secure her release. Found he had caused the police to act how they did, therefore he was responsible.
Charles posts a bomb Tina delivers it, it kills 2 people. Tina not guilty because wasn’t informed.
Also the case of Manley: D tells child to take money from till, child didn’t know it’s wrong(not informed). D found to be liable.
Rendering the defendants actions no longer an operating and substantial cause
To amount to a NOVUS Actus interveniens the act of the third party must have rendered D’s Initial act no longer substantial or operating cause. The courts are highly reluctant to find dr’s a NOVUS Actus interveniens even if the treatment is highly negligent. D attempts to argue that the chain of causation has been broken by the hospital however it’s very hard to argue that the hospitals medical standards fall below that of the required for the wounds D has necessitated. Furthermore bad medical treatment cannot be described as abnormal now considering in a A&E environment treatment in emergencies cannot always be of the highest standard.
One case where the chain of events was actually broken
Case if Jordon- D stabbed V, when V got to hospital the wound had virtually healed at the time of death. The a Doctor administered an anti-biotic which V was allergic too, killing V. The treatment provided was ‘abnormal, Palpally wrong or grossly negligent. The Dr should have known he was allergic. Jordan was still guilty of he battery.
A more representative case would be Cheshire-even thought the treatment was poor it still didn’t break the chain of causation (it was an omission not an act).
Case of Malcherek-D inflicted wounds on V which put V on a life support machine. Later the machine was switched off by doctors. The initial injuries were operating and substantial cause of death, because if it was not them then when the machine was switched off what did he victim die of?
William Wilson has suggested it needs to be distinguished between two cases:
1)death resulting from bad treatment attempting to save life from injuries attained. If so it must be palpably wrong to beak the chain.
2)death of V must be caused by things done in the hospital unconnected to injuries–>food poisoning etc.
Lord Parker CJ in smith [1959]- said only if the second cause is so overwhelming as to make the original wound merely part of the history can it be said that the death does not flow from the wound.
What if the person intervening was not free voluntary and informed?
In this situation you may go on to ask whether or not it was reasonable foreseeable?
Case of Roberts tells us that it is an objective test. In Roberts D gave V a lift in his car, D was touching her skirt, and V jumped out the car nd then sustained injuries. D argued that her jumping out the car was a NOVUS Actus interveniens. It was held that it was reasonable foreseeable to the reasonable person she might have jumped out the car. Note it’s not if her jumping out the car is reasonable, but is it reasonable foreseeable.
It was applied in Williams and Davis-the jury should bear in mind any particular characteristic of the victim and the fact that in the agony of the moment he may act without thought or deliberation.
Then in the case of Marjoram-foreseeable to the ordinary person.
This is hard to square with the case of blaue- D stabbed V piercing her lung. V was taken to hospital needing a blood transfusion. v was a Jehovah witness and refused, she died the next day. D tried to claim that the Intervening act of V was a NAI. The courts ignored this and invented a new policy of you must take the victim as you find them.
You are liable, and you are liable because you must take the victim as you find them ‘thin skull rule’. Even if the intervening act was not reasonable foreseeable, you must still check whether D’s original contributions were still substantial. Only if the intervening act was not foreseeable, not operating and substantial. D’s original cause is still considerable.
What if v’s act was not reasonable foreseeable, and D’d original conduct was not ongoing substantial and operating cause of the prohibited result? Usually this will suffice to break the casual chain. But what if we were to ask whether D’s conduct nevertheless provided a reason for V’s conduct? It must be noted that this is anomalous as it contradicts the authorities of Roberts, marjoram, blaue. Because his acts are not reasonable foreseeable.
R v Dear-D’s daughter accused a man of sexually abusing her. D then went after the man and slashed him repeatedly with a Stanley knife. V recieved medical treatment but late re-opened the wounds in what was thought to be a suicide and died two days later after the initial attack. D argued the mans actions in opening the wounds amounted to a NAI.
HELD: D’s conviction was upheld. The wound eas still a operating and substantial cause of death.
Thin skull rule examples
The defendant chased his wife out of the house shouting threats at her. She collapsed and died. He didn’t physically touch her she was suffering from a rare condition which could lead to death where physical excretion was accompanied by fright and panic.
It was held D was liable for constructive manslaughter as his unlawful act of assault caused death. The thin skull rule was applied as he had to take V as he found her.
Case of Mckechnie: Where owing to the injuries recieved by D, V was unable to receive medical treatment that was needed for an ulcer, and died from the ulcer. It was held D caused the victims death.
Blaue: the defendant must take he Victims as a whole person. This includes not just their physical characteristics but also there religious beliefs. D must also take them with their emotional and phycological condition. It’s still unclear whether D is liable for V making their condition worse. E.g. Dear.
A natural event breaking the chain of causation?
A natural event will not normally break the chain of causation. However where there is a Freak of nature this may break the chain of causation. Needs to be a extraordinary even according to herring.
Case of Gowans: D attacked V putting him in a coma. D then caught a serious infection and died. Because the coma out the victim in such a vulnerable state it was held that D’s act was an operating and substantial cause of the death.
Can omissions be intervening acts?
Omissions generally cannot be intervening acts as shown in blaue.
Contemporaneity of the Actus Reus and Mens Rea
How do the courts answer these? Can there be multiple Actus rei?
The Actus Reus and mens rea of a given crime must coincide together at the same point in time. There are a range of exceptions however where the mens rea is present first; the Actus Reus occurs later without the mens rea.
The courts state that although occurring at different temporal points they are infact all one transaction. One period of activity. Sometimes the act may occur first then the mens rea later cases of Miller and FAGEN.
There may be multiple Actus rei e.g. Attorney generals reference No.4 1980. D slapped his girlfriend V then pushes her down the stairs, then put a rope around her neck, brings her back up the stairs, cuts her throat and then cuts her up. Unclear which act caused death at the time, the court said that as long as D had the Mens Rea at the time of each possibles act this was enough for liability.
