Causation

Seminar 7

Central question of causation

What does it mean to say that someone caused a prohibited consequence? Your AR must have led to the prohibited consequence But what if someone else or something else also contributed to the prohibited consequence?
I have factually contributed to the prohibited consequence But should I be morally held responsible? Should the criminal law hold me criminally responsible?
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Two levels

Factual causation Vs death would not have occurred without As conduct Vs death would have occurred regardless of what A did Legal causation/imputable causation

Factual causation

Equal and multiple causes? YMC - prevailing position yes still fulfill factual causation

Imputable causation

Different tests have been designed Direct result Proximate and efficient cause Causa causans - immediate cause Substantial cause Foreseeability

Direct cause test

Ng Keng Yong Adopted Omkar Ram Pratap (direct result, proximate and efficient cause, casa causans) Has to be the immediate cause of death and not just a remote cause (para. 62)

Substantial cause test

Ng Keng Yong also seemed to adopt an additional test

substantial cause (para. 66) If the A contributed significantly or substantially to the result

Are the words significantly and substantially to carry different meanings?

Which indicates more contribution?
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Substantial cause test

Problems with this test: Retrospective in nature what is wrong with this if it is a factual inquiry? Not a clear standard

Foresight test

Indian courts: when A acted could he have reasonably foreseen consequence of conduct? YMC argues for this test objective but takes into account circumstances
Focuses on persons culpability Excludes unforeseen/unpredictable events (e.g. non-responsible intervening factor and responsible intervening actor with free and independent will)
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Intervening causes

What is an intervening cause? Two acts committed by same actor in succession

Intervening cause? Or treated as continuous, combined act?

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Victim causes own death

Vs own intervening action:Vs action result from pressure from A Basappa (jumping from roof to escape As)
Held: jumping was a direct result YMC: foresight test would have been better

R v Roberts (sexual advances, jumped out of car)

reasonably foreseen

R v Pitts
doesnt need to be only means, but one that reasonable person would take
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Victim causes own death

Unexpected act of V who is a responsible actor Escape cases: V takes an unexpected route R v Storey
If voluntary and not forced If act was not reasonable and natural

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Victim causes own death

Unexpected act of V who is a responsible actor : negligent act of V Nga Moe

V had low power of resistance, unreasonably discharged himself from hospital

Problem of s. 299, explanation 1

How does YMC interpret this

Cf. R v Blaue (Jehovah Witness)

Must take victims as you find them Applied substantial cause test
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Victims sensitivity contributes to death

thin skull principle

S 299, explanation 1

YMC
Unduly harsh Interpret explanation 1, s. 299 to apply only to obvious and operating infirmity Not dormant infirmities

Kamayya (fatty heart)

Would have considered if injuries not likely to cause death
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Third party or event cause

Third-party intervention was this foreseeable? Nonresponsible agents decisions more predictable R v Michael (5 year old feeds medicine to baby)
want of discretion of intervening child A taken to know

Ng Keng Yong (ANL Indonesia)

Substantial test applied YMC argues could have applied 3rd party test

Cf. R v Pagett (police open fire)

Reasonable reaction for self-preservation purposes
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Third party or event

Medical treatment reasonably foreseeable event

Improper but good faith treatment: foreseeable that may receive imperfect medical treatment Grossly negligent treatment: breaks causation chain

Nga Ba Min
Unskillful treatment by itself led to death
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Natural event

If extraordinary: breaks causative chain Nandkumar (develops complications resulting from original wound)
Complications practically inevitable sequence wont break causative chain Complications that are a remove and a rather improbable consequence will break the causative chain
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Should the test for causation differ between the criminal law and civil law?

Yong Pung How CJ in Ng Keng Yong v PP said:Yes at least in relation to s 304A offence but gave no real reasons. The but for test and doctrine of novus actus interveniens of civil negligence law should not be introduced into s 304A. The test for causation under the criminal law is stricter.

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2.

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Critically evaluate these rulings.

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Reforming Causation

YMC: Add the following provision in the Penal Code which is applicable to all result crimes: Everyone causes a result when his or her conduct substantially contributes to its occurrence and no other reasonably unforeseen and unforeseeable cause supersedes it.

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Re-cap: approaches

Factual causation Tests:

Direct, proximate Substantial, operating Reasonable foresight

Are any of these sufficiently clear and certain to provide us with clear results when applied to complicated situations?
Multiple cause situations
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Approaches to causation

Vs own LATER decision or reaction: tend towards forcing A to take V as found

Vs decision: Blaue (Focused on cause, refuse to consider reasonableness) & Holland (Refuse amputation, no inquiry into reasonableness, just focused on cause) & literal reading s. 299, exp 2 vs Nga Moe (noted didnt exercise common prudence) Existing condition: R v. Hayward (heart condition) & literal reading of s.299, exp 1 vs. Indian positions (Nga Moe, chronic malaria) & YMC position (dormant condition) --depend on whether condition can be expected in ordinary man?

Vs IMMEDIATE response to A: if based on well-grounded fear, broad approach taken to hold A responsible
R v Pitts (jump into river), Basappa (jump from roof; direct test), Roberts (jump from car; foresight test) If free, deliberate, informed vs. forced (Pagett) vs. non-responsible agent (Suryanarayanamoorty; want of discretion & reasonable foresight)

THIRD PARTY intervention

Vs death was NATURAL consequence (expose V to elements, V develops other complications) --- broad approach
Chetty (leave in field, pneumonia, probable consequence test); Yohannan (spinal cord injury, died from bedsores and cystisis, consequence necessarily and naturally) Smith (Drops V twice, gave wrong treatment, still substantial operating cause) vs Jordan (allergic reaction, test was given, no longer operating cause)
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MEDICAL INTERVENTION (policy concerns) --- unless grossly negligent

Approaches to causation

Appear to be driven by unarticulated policy/moral feelings towards certain case scenarios rather than the legal tests employed?

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Shaiful Edham

Pathologist report
certified the cause of death as "multiple incised wounds on neck and drowning" (para. 6) The fluid discovered in her chest cavity showed that she was alive when she was submerged in water and that she had inhaled water into her lungs which seeped out into her chest cavity (para. 13) was firm that the wounds on the neck alone could have caused death from the loss of blood, albeit slowly. The deceased would have died without being placed in water because she was already on the brink of death (para. 14)
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