Seminar 7 Causation

7/30/2019 Seminar 7 Causation

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CausationSeminar 7


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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


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Factual causation

Equal and multiple causes?

YMC - prevailing positionyes still fulfill

factual causation


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Imputable causation

Different tests have been designed

Direct result

Proximate and efficient cause Causa causans - immediate cause

Substantial cause

Foreseeability


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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)


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Substantial cause test

Ng Keng Yongalso seemed to adopt anadditional test

substantial cause (para. 66)

If the A contributedsignificantly orsubstantiallyto the result

Are the words significantly andsubstantially to carry different meanings?

Which indicates more contribution?


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Substantial cause test

Problems with this test:

Retrospective in naturewhat is wrong with

this if it is a factual inquiry?

Not a clear standard


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Foresight test

Indian courts: when A acted could he have

reasonably foreseen consequence of

conduct?

YMC argues for this testobjective 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 frompressure 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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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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Unexpected act of V who is a responsible actor :negligent act of V

Nga Moe

V had low power of resistance, unreasonably dischargedhimself 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 interventionwas this foreseeable? Non-responsible 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 treatmentreasonably 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 causativechain


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Should the test for causation differ

between the criminal law and civil law?

Yong Pung How CJ inNg Keng Yong v PPsaid:-

1. Yes at least in relation to s 304A offence but gave

no real reasons.2. The but for test and doctrine ofnovus actus

interveniens of civil negligence law should not beintroduced into s 304A.

3. The test for causation under the criminal law isstricter.

Critically evaluate these rulings.


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Reforming Causation

YMC: Add the following provision in the

Penal Code which is applicable to allresult

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 tocomplicated 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) & literalreading s. 299, exp 2 vsNga Moe (noted didnt exercise common prudence)

Existing condition: R v. Hayward (heart condition) & literal reading of s.299, exp 1vs.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)

THIRD PARTY intervention If free, deliberate, informed vs. forced (Pagett) vs. non-responsible agent

(Suryanarayanamoorty; want of discretion & reasonable foresight)

Vs death was NATURAL consequence (expose V to elements, V develops othercomplications) --- broad approach

Chetty (leave in field, pneumonia, probable consequence test); Yohannan (spinal cordinjury, died from bedsores and cystisis, consequence necessarily and naturally)

MEDICAL INTERVENTION (policy concerns) --- unless grossly negligent 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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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 shewas 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)

Seminar 7 Causation

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