Tutorial 4: Causation

Key Cases: R v White [1910] 2 KB 124; Kennedy [2007] UKHL 38; Williams and Davies
(1991) 95 Cr App R 1; Cheshire [1991] 3 All ER 670, Jordan (1956) 40 Cr App R 152, Blaue
[1975] 1 WLR 1411, W [2018] EWCA Crim 690
Presentation: R v Cheshire [1991] 3 All ER 670
Questions
1. Why do we need law relating to questions of causation? Should consequences
matter? (pg115-128)
- With causation, criminal law can define for which of the consequences of his or her
actions an accused is responsible (Honore)
- Responsibility for their act – held accountable for their action
- Cases have possible causes – narrow down to who is responsible for the result
- Necessary for result crime – show who causes the result crime

Arguments against holding people responsible for the consequences of actions

- Consequences are beyond one’s control and a matter of luck – penalise acts and
ignore the consequences of those acts; punish acts which endangered others; whether
any harm actually resulted being a matter of chance
- Even if the consequence doesn’t occur, harm not occurred, accused has done some
sort of act that shouldn’t have been done – still can be held liable
Arguments that consequences matter
- Reactions of actor and bystanders
- Action reason and outcome reasons – action reason is an argument for not performing
a certain kind of action whatever the consequences – outcome reason sees the reason
for not performing the action as the bad consequences that flow from that direction –
consequences matter in that they provide another reason for acting in a particular way
- Criminal law also has a role in recognising the wrong done to victims
- Same blame but different wrong – Edwards and Simester – no difference in
blameworthiness between those who try and fail to commit a harm and those who
succeed. However, they believe the two are different wrongs and so should be
convicted of different crimes.
- Not considering the whole picture of what has happened? If consider consequence to
be out of control, our actions are also out of control – problematic in criminal law

2. Distinguish factual from legal causation. Why is factual causation both necessary
and insufficient?
- Factual causation: ‘but for’ test – the result would not have occurred but for the
defendant’s conduct
- Dyson
 - White: D put poison into victim’s drink, victim suffered heart attack having taken a
few sips. Medical evidence suggested that the poison was unrelated to the heart attack
– would have died in exactly the same way and at the same time had the defendant
not pit the poison in the drink – could not be said that the poison was a factual case of
death
- Legal causation: an ‘operating and substantial cause’. Wallace seemingly shifted
from ‘operational and substantial cause’ to ‘a significant cause’ moral connection
between conduct and result
- Significant cause (Wallace), operating and substantial (Smith)
- Factual too broad
- Necessary: distinguish between conduct which sets the stage for an occurrence and
conduct which on a common sense view is regarded as instrumental in bringing about
the occurrence. Useful – tells us who cannot be regarded as a cause of death. If the
victim would have died in the same way and at the same time had the defendant not
been there, then the defendant cannot be said to have caused the death in the eyes of
the law.
- Insufficient: too wide? Exp, in a murder case, defendant’s parents could be said to
have caused a victim’s death: but for the defendant’s parents bringing him into the
world, the victim would not have died. Need legal causation to determine whether the
cause is a substantial contribution to a result.

3. What is a novus actus interveniens? What sort of acts or events might this entail?
- Novus actus interveniens – a free, voluntary and informed act of a third party which
renders the original act no longer a significant cause of the result
- Interventions – events (act of God), victims, third parties
Events
- Natural events can break the chain of causation, only if they are extraordinary or
unforeseeable
- Hart – D injures the victim and leaves the body on the seashore and the sea comes in
and drowns victim; sea coming in does not break the chain of causation.
- Bush v Commonwealth – D injured victim, MO attended the victim and inadvertently
infected with scarlet fever and victim died of that. Held: novus actus interveniens,
couldn’t be foreseen that completely unrelated disease would be contracted by MO to
victim, not within the realm of D
Victims
- Subsequent acts by victim can break the chain (if free, voluntary and informed act)
Kennedy (heroine – novus actus interveniens found)
- Victims’ acts can break the chain if they are not ‘reasonably foreseeable’ (Re v
Wallace – acid thrown at victim’s face – disfigured, paralysis and constant physical
and psychological pain – decided to end his life via voluntary euthanasia; no NAI –
reasonably foreseeable that D would commit suicide as a result of his injuries
- Acting in order to preserve his or her own life (reasonably foreseeable) (Roberts –
jumped out of car after driver attempted to rape)
 - Victims’ contribution to the results via contributory negligence will not break the
chain (R v Holland – refused amputation of finger)
- Unusual vulnerability will not sever chain of causation (Eggshell Skull rule) (R v
Hayward, R v Blaue)
- Omissions by victim/TP will not sever
TP
- TP reacting to D’s conduct will not break the chain unless it is reasonable (Pagett – D
said to have caused his girlfriend’s death after he kidnapped her and she was killed by
police marksmen trying to secure her release. D caused the police to act in this way
and police were acting lawfully and thus their actions did not break the chain of
causation)
- TP medical interventions will rarely break the chain of causation even if negligent (R
v Cheshire, R v Jordan)
- TP contributing to the result will not break the chain if D’s act is still a substantial
and operative cause (Benge, People v Clark)
- Free, voluntary and informed act

4. Why do subsequent omissions by third parties not sever the chain of causation?
- An omission cannot render the defendant’s act no longer an operating and substantial
cause
- If D stabbed the victim, who was taken to hospital but died because no medical
treatment was offered, then D would be said to have caused the death

5. What is the “eggshell skull” rule? Do you agree with this principle? Reflect on both
arguments in favour and against.
- Eggshell skull rule – defendants must take their victims as they find them – no
defence for a defendant to say that injuries or death were caused by physical
condition of the victim (Blaue – take the victim as the ‘whole person’ – not only their
physical characteristics but also religious beliefs, emotional and psychological
condition)
- R v Hayward – argument between D and wife, D chased wife out of his house and she
collapsed and died, medical evidence suggested that wife had an abnormal medical
condition which meant that if she suffered fright or physical exertion she might die.
Held: D caused the wife’s death, medical condition irrelevant
- Against: not clear whether the eggshell rule can be extended to apply to cases where
as a result of injury inflicted by D the victim acts in a way which causes further harm
– extension would take the rule too far – restrict it to cases where victim does not do
anything to make condition worse? Another point against – portray a nature of
blame?
- Agree: if stab someone, shouldn’t have less responsibility if the person is sick or
unhealthy – same responsibility
 - Disagree: death could be prevented if took the transfusion? Reluctant to deal with
religious beliefs (Blaue); too remote?

6. Critically evaluate the case of R v Blaue in light of the various possible approaches
to legal causation. How would the case be decided in light of the following
principles:
R v Blaue – D stabbed victim, piercing her lung. Victim taken to hospital and was told that a
blood transfusion was necessary. Victim refused to consent to the operation as it was against
her religious beliefs despite being told that she would die without the transfusion. Victim
died eventually. Held: D’s appeal arguing that the victim’s refusal to have a blood
transfusion broke the chain of causation between stabbing and death dismissed.
a) The 'eggshell skull’ rule
- Under the eggshell skull rule, defendants must take their victims as they find them,
whatever their peculiarities (take the victim as a ‘whole person’). (Lawton LJ –
cannot deny that the victim’s religious beliefs which inhibited her from accepting the
transfusion were unreasonable, but the question for the decision is what caused her
death and the answer is stab wound. The victim’s refusal does not break the
connection between the act and death).

b) Whether the victim’s response was reasonably foreseeable or ‘daft’

- Applying Roberts test, might be decided that it was not reasonably foreseeable that
the victim would refuse blood transfusion due to religious belief when her life is at
stake.
- Williams and Davies – reasonably foreseeable given the victim’s characteristic?
Would not break if unreasonable – In this case however there was not enough
evidence that the defendant’s acts had led to the victim’s reaction being within the
range of reasonable responses available to him.

c) Whether the victim’s response was free, informed, and voluntary

- Voluntary act – refusing the transfusion, involuntary because of her religion?
- Not free – restricted by religious belief
- Since her action is justified by her reason of religious belief, not free, voluntary and
informed – A would still have caused the result
- Not a voluntary act to receive euthanasia in Wallace; due to acid effect?

d) The fact that the victim’s response was an omission

- Omission – failure to consent to blood transfusion.
- Would not conflict with Roberts principle (whether the reaction was reasonably
foreseeable) – consistent with the criminal law’s approach of not attaching casual
significance to omissions
- Omission cannot break the chain of causation
Which do you think is most appropriate? Why was it decided the way it was?

7. Compare the cases of Cheshire and Jordan. Are they reconcilable? Why are courts
reluctant to find that faulty medical treatment severs the chain of causation?

R v Cheshire – D shot the victim during an argument in a fish and chip shop. Victim was
taken to the hospital and placed in intensive care. Due to the victim’s breathing
difficulties, a tracheotomy tube was inserted in his windpipe. The victim died two months
after the shooting because the windpipe had narrowed where the tracheotomy had been
performed. Held: D’s appeal that the negligent medical treatment could broke the chain
of causation between the shooting and the death was dismissed. [Beldam LJ – it will only
be in the most extraordinary and unusual case that such treatment can be said to be so
independent of the acts of D that it could be regarded in law as the cause of the victim’s
death to the exclusion of D’s acts…even though negligence in the treatment of the victim
was the immediate cause of his death, the jury should not regard it as excluding the
responsibility of the defendant unless negligent treatment was so independent of his acts,
and in itself so potent in causing death, that they regard the contribution made by his acts
as insignificant] [D’s acts made significant contribution to victim’s death – made a more
substance contribution than negligence of medical treatment]

R v Jordan – D stabbed victim, taken to hospital where the wound had almost healed
when a doctor administered a drug to which the victim was allergic to. The drug killed
the victim. Held: CA – medical treatment caused the death of the victim, not D. Original
wound had virtually healed at the time of death. in medical terms, the wound inflicted by
D had not contributed to the death of victim. Treatment provided by the hospital was
abnormal, palpably wrong or grossly negligent. Should have been known by the doctor
that the victim was intolerant to the antibiotic.

Court’s reluctance: persuaded by the response that victim would not have required
medical treatment had D not injured him or her – prevent undue pressure on doctors –
doctors have restricted actions
Death was from allergic reaction – D not responsible for the allergic reaction;
treatment so extraordinarily negligent – reconcilable

8. See the following sample essay question. How would you structure your answer? What
points would you cover?

“[T]he meaning of causation is heavily context-specific and…different legal rules of

causation [may apply] in different situations. Accordingly, it is not always safe to
suppose that there is a settled or ‘stable’ concept of causation which can be applied
in every case.” – Supreme Court in Hughes [2013]
 Discuss in light of the principles of legal causation.

- Define causation
- Why do we need causation?
- Factual and legal causation, novus actus interveniens
- Adv and disadvantage of causation

- Intro – what the question is about, what you are going to write
- Background on causation, why we need (link to result crime)
- Attempts to create a general principle (Honore) normal and abnormal causes?
- [link back to question: not always safe to…] adv and disadv? If outcomes are
inconsistent, need some form of certainty – pro general principle. Support way things
are now: diff principles – flexibility – apply according to facts of cases
- Conclusion

9. Jerry and George have an argument. Jerry punches George, who falls over cutting
his elbow. As George is attempting to get up, he bumps into Elaine who had just
turned the corner and was walking with due care. He falls over, cuts his other elbow
and hits his head, knocking him unconscious. Elaine does not notice and keeps on
walking. Kramer, a bystander who happens to be an expert in preventing blood loss,
sees the whole episode unravel but does nothing to help. Unknown to all, George is a
severe hemophiliac and he dies of loss of blood before medical assistance can arrive.
Who is the legal cause of George’s death? Jerry, Elaine, or both?

Factual causation: the ‘but for’ test – had Jerry not punched George, Jerry would not have
died. (R v Morby [smallpox, prayer – would’ve still died], R v White [son tried to poison
mother, mother died of heart attack – no causation]

Legal causation: ‘substantial and operative cause’ test

- Eggshell rule: defendants must take their victims as they find them – no defence for a
defendant to say that injuries or death were caused by physical condition of the victim
(Blaue – take the victim as the ‘whole person’ – not only their physical characteristics
but also religious beliefs, emotional and psychological condition)
- R v Hayward – argument between D and wife, D chased wife out of his house and she
collapsed and died, medical evidence suggested that wife had an abnormal medical
condition which meant that if she suffered fright or physical exertion she might die.
Held: D caused the wife’s death, medical condition irrelevant
- Using Hayward as precedent, Jerry would be the legal cause as the fact that George is
a sever haemophiliac is irrelevant.
Omission by TP (Elaine, Kramer)
- An omission cannot render the defendant’s act no longer an operating and substantial
cause
Issue: Whether Jerry, George, or both are the legal cause?
P: factual (but for test) and legal (subs and operating)
A:
But for test – R v White – but for Jerry punched George, G wouldn’t have bleed.
Legal causation: operating and substantial cause – Smith / Wallace (significant cause)
Novus actus interveniens – see if the chain is broken
When G bumps into E, E (omission – no positive act, neither involuntary nor free)
K – bystander – third party omission – no broken chain
G – severe haemophilia – eggshell skull rule – Hayward, Blaue
J is the legal cause