Causation

Most of the time, it’s straightforward to establish that someone is criminally responsible for harm caused to another:

Shane punches Vince in the face, intending to hurt him.

Shane is liable to be prosecuted for assaulting Vince.

Sometimes, however, it’s not so easy. University exam writers – in my experience – are fond of scenarios like this:

Shane decides that it would be really funny to play a practical joke at his friend Vince’s shop. He goes there wearing a balaclava and concealing a toy gun in his pocket.

When he enters the shop, he heads straight to the till, where Vince is standing. He takes the toy gun out of his pocket, points it at Vince, and says “Give me the fucking money!”

Vince is initially alarmed, throwing his hands up in the air when he sees the gun. However, he quickly realises that the gun is not a proper firearm.

Shane, barely able to control his laughter, shouts, “I said give me the fucking money man!” Vince recognises Shane’s voice, and suddenly understands that he is just joking around. He starts to laugh, and visibly relaxes.

Linda, an elderly customer in the shop, witnesses the whole event. She does not know who Shane is, and her eyesight is so poor that she thinks the gun is real. She is so shocked that she faints. She falls backwards, onto a pallet holding loaves of sliced bread, which softens her landing. Unfortunately for Linda, this nonetheless triggers an acute episode of boneitis, which kills her immediately and messily.

Hunter, a member of the public who is unaware of what has just happened, enters the shop a few seconds later. He sees Linda lying on the floor in a pool of blood. He has a phobia of blood, and runs screaming from the shop. In his panic, he decides to climb a nearby tree to escape. The tree is hit by lightning, injuring Hunter badly. He is taken to hospital, where a doctor accidentally gives him a fatal overdose of morphine.

Discuss the criminal liability (if any) of Shane.

I don’t know how university exam writers sleep at night. We’ll come back to this more complex situation in a minute.

The question is, at what point do the accused’s actions become too distant from the harm suffered by the victim? In other, more pretentious words, if there is a novus actus interveniens (a “new, intervening act“) that breaks the chain of causation, then the accused should not be liable for the harm that the victim suffers. Remember, though, that the accused is still responsible for things that happen up to the point at which the novus actus interveniens happens.

“But for…”

Most crimes have a clear result. In the first example above, the result of Shane’s punch is that Vince has suffered harm, and it would be easy for the prosecutor to prove that. Similarly, in a fraud case, it’s normally quite straightforward to show that a misrepresentation on the part of the accused led to the victim losing out in some way.

A fairly straightforward question to consider in “result” crimes is: “But for the accused’s actions, would the result have occurred?” If you like your Latin (and who doesn’t, to be fair), you can also call this the sine qua non (“without which, not”) test. It’s a good starting point, but you need to be careful to distinguish between conditions (e.g. “but for the presence of the victim crossing the road, his car wouldn’t have hit anyone”) and causes (e.g. “but for the accused driving without paying attention, he would have noticed the victim crossing the road, and easily avoided hitting her”).

The question of causation can be quite difficult, because you can get bogged down in complicating factors quite quickly. Here are a couple of cases that illustrate how tricky this area can be:

Hendry v HMA (1987 JC 63)

Hendry had been convicted of culpable homicide (killing).

He had inflicted a relatively minor assault on a 67-year old man.

The deceased had suffered a heart attack a short while later, and died.

There were various other factors that could have caused the deceased’s fatal heart attack (e.g. angina, heavy drinking).

Two medical experts were called as witnesses. Only one of them was of the opinion that it was more likely than not that the assault had caused the heart attack.

Hendry’s conviction was upheld on appeal. The jury was entitled to accept one expert’s opinion, and reject the other’s.

Lourie v HMA (1988 SCCR 634)

Lourie (and alleged accomplice) had been convicted of culpable homicide (killing) of an elderly woman.

The Crown’s case was that they had entered her home uninvinted, and had stolen her property in front of her. The alarm that she experienced caused her to suffer a fatal heart attack.

The conviction was quashed on appeal. It was held that, in the circumstances of the case, there was insufficient evidence to show that Lourie had entered the deceased’s home uninvited, and insufficient evidence to show that she had witnessed the theft.

The success of the appeal was due to the particular evidence in the case. The point to take from it is that the Crown were initially successful in prosecuting Lourie for causing death, despite (assuming the Crown’s case was true) what could be described as an indirect causal link.

You’ll have noticed from the two examples above that the deceased could be said to share a certain vulnerability. Is it fair to hold an accused responsible for results that have a lot to do with the victim’s particular physical or mental characteristics? Generally, the law says – yes.

“The Thin Skull Rule” (or, “Take your victim as you find them”)

The general principle here is that it doesn’t matter if your victim is unusually fragile, either physically or mentally; you are still responsible for harm caused to them.

There are two cases that elaborate on this principle quite well:

Bird v HMA (1952) JC 23

A woman was suspected of stealing. A man followed her and grabbed her. She had a pre-existing heart condition, and the shock of being grabbed subsequently led to her death.

“[it is not a] defence that the victim was an old person, an infirm person, or a person that suffered from a bad heart, and that if he had been young and healthy the consequences would not have happened.”

R v Blaue (1975 1 WLR 1411)

This is an English case, in which a man had stabbed a woman several times after she had knocked back his sexual advances. She was a Jehovah’s Witness, and refused an emergency blood transfusion at the hospital for religious reasons. She died from her wounds. Blaue argued that he should not be held responsible for her refusal to accept life-saving treatment.

“[T]hose who use violence on other people must take their victims as they find them…[This] means the whole man, not just the physical man. It does not lie in the mouth of the assailant to say that his victim’s religious beliefs…were unreasonable. The question for decision is what caused her death. The answer is the stab wound. The fact that the victim refused to stop this end coming about did not break the causal connection between the act and the death.”

There are plenty of high-profile examples of “single punch” killings (recently, the sad case of Shaun Woodburn’s death in Edinburgh on Hogmanay 2017 comes to mind). A victim might have an unusually thin skull, fall and hit their head in a particularly damaging way, refuse to seek medical treatment, etc. Whether the accused knew these things in advance or not, they were foreseeable.

The point is that the accused is still generally held to be liable for unintended consequences of their actions. There is no duty on the complainer to mitigate harm caused to them.

Acts of the victim

Blaue above, being an English case, isn’t binding on the Scottish courts (although it may well be persuasive). Bearing that in mind, how unreasonable can a victim’s acts be before it can properly be argued that the accused should not be liable for the eventual harm suffered?

Harm suffered during the victim’s escape attempt is generally the fault of the accused. In other words, it does not “break the chain of causation”. Here are two examples:

HMA v Patrick Slaven and Others (1885 5 Couper 694)

A woman had been assaulted by the accused. She ran away, and the accused pursued her.

In the course of her escape attempt, the victim fell over a cliff and died.

The trial judge, Lord Young, held that “if the woman met her death in endeavouring to escape from the assault of these men, then her death was the consequence of their unlawful and violent conduct towards her.“

McDonald v HMA (2007 SCCR 10)

Two accused had assaulted the victim in a third-floor flat. They had then left, locking the door and taking the key.

The victim, in an attempt to escape the flat, had climbed out of the window, fallen, and died.

The jury found that the necessary causal link had been established. This conviction was upheld on appeal.

Both of the above cases are referred to in the 2009 case of MacAngus v HMA. Paragraphs 38 to 48 are worth a read in particular. The whole case is a fairly complex discussion of causation as it relates to death after the supply and/or administration of drugs, but there’s a good discussion of how Scots criminal law should approach the question of causation:

mac1

…

mac2

On that last part, about “a deliberate decision by the victim of the reckless conduct to ingest the drug”, see:

Khaliq v HMA (1984 JC 23)

Ulhaq v HMA 1991 SLT 614

Both of these cases involved the “culpable and reckless” supply of solvents for ingestion.

Khaliq had sold “glue-sniffing kits” to children. Ulhaq had supplied the solvents, on their own, to adults.

In both cases, it was held that the voluntary ingestion of the solvents by the purchasers did not amount to a novus actus interveniens. Khaliq and Ulhaq knew what the purchasers were going to do with the solvents that they had sold them, and therefore the supply was a culpable and reckless act.

In Ulhaq’s appeal, Lord Justice General Hope said (at p615) that “the Sheriff was right to…leave it to the jury to decide whether, on the evidence, the supply was conducted in this case in the knowledge that the substances would be abused, and was therefore not merely to be the occasion of the abuse but its cause“

Medical Intervention

What about a situation where the harm caused to a victim is multiplied by medical complications?

Infections that develop as the result of the original wound(s) are not regarded as breaking the chain of causation.

HMA v Anderson (2007 HCJAC 13)

Crown appeal against an “unduly lenient” sentence.

Anderson had assaulted the victim by kicking and punching her, causing her to suffer broken ribs and a punctured lung.

She subsequently developed pneumonia, and a surgical wound became infected.

Anderson was charged with assault, with the aggravation that it was “to the danger of life”.

The Lord Justice General observed, “The treating surgeon advised that the complainer’s life was not in danger as a result of the rib injuries but that the subsequent pneumonia, which was a direct result of those injuries, could have been life threatening. That last comment justifies the aggravation of danger to life which was referred to in the charge to which the plea of guilty was tendered.”

The sentence of community service and a £1500 compensation order was quashed, and substituted with 30 months’ imprisonment.

A completely unrelated infection (like a hospital “superbug”, potentially) may well break the chain, and so the accused would not be liable for the harm caused beyond the original attack. As usual, it’s a question of proximity.

Medical negligence would need to approach me-playing-Theme-Hospital levels of outrageously poor treatment in order to constitute a novus actus interveniens. Minor errors are generally regarded as foreseeable.

Case of James Williamson (1866 5 Irv 326)

“If a wound calculated to prove mortal in itself is afterwards followed by death, [it is unacceptable] to say that every criticism that can be made of the treatment…is to furnish a ground for acquitting the person who inflicted the wound of either murder or culpable homicide.”

Switching off life-support machines is not regarded as a novus actus interveniens. In other words, you would not be able to argue that you are not liable for murder/culpable homicide on the basis that your victim would have remained alive if a doctor had not pulled the plug, so to speak, and ended their life.

Conclusion

So, hopefully you can see by now that there is very little in the way of hard and fast rules when it comes to causation. That can be a good thing when it comes to exam questions / representing people in court, because – as long as you can back up your argument with basic principles and reasonable analysis of the evidence – you shouldn’t have to worry about getting the whole thing wrong.

Those basic principles (which I’m expressing in questions) are:

Is the accused’s conduct proximate to the harm caused?
How foreseeable were the consequences?
Has anything happened that is unexpected and significant enough to constitute a novus actus interveniens, breaking the chain of causation?
Was the victim particularly vulnerable in some way?
How reasonable were the victim’s actions?

Now, I’ll do my best to give you my answer to that example involving Shane at the top. Let’s go through it in stages.

Shane decides that it would be really funny to play a practical joke at his friend Vince’s shop. He goes there wearing a balaclava and concealing a toy gun in his pocket.

“It’s just a prank bro” isn’t a good defence to what’s about to happen.

When he enters the shop, he heads straight to the till, where Vince is standing. He takes the toy gun out of his pocket, points it at Vince, and says “Give me the fucking money!”

Vince is initially alarmed, throwing his hands up in the air when he sees the gun. However, he quickly realises that the gun is not a proper firearm.

Regardless of whether Vince eventually realises that it’s a joke, Shane has committed either an assault by brandishing an imitation firearm at Vince, a “section 38” (contravention of s38 of the Criminal Justice and Licensing (Scotland) Act 2010) due to his recklessness, or a common-law breach of the peace. Each of those offences could apply.

Shane, barely able to control his laughter, shouts, “I said give me the fucking money man!” Vince recognises Shane’s voice, and suddenly understands that he is just joking around. He starts to laugh, and visibly relaxes.

As above – this would be decent mitigation in respect of the offence(s) above, but it doesn’t make Shane any less liable for his initial actions.

Linda, an elderly customer in the shop, witnesses the whole event. She does not know who Shane is, and her eyesight is so poor that she thinks the gun is real. She is so shocked that she faints. She falls backwards, onto a pallet holding loaves of sliced bread, which softens her landing. Unfortunately for Linda, this nonetheless triggers an acute episode of boneitis, which kills her immediately and messily.

As with Vince above, the assault / s38 / breach of the peace charge would, in context, reflect the alarm caused to Linda.

As we know, Shane has to take his victim as he finds them (according to the thin-skull rule). In this case, Linda’s rare bone disorder may be completely unknown to Shane, but we can establish a chain of causation that goes:

Alarming conduct → Linda fainting → Linda falling → fall triggers Linda’s boneitis → Linda’s death

In my view, there is no evidence to break this chain. While another person may well have been totally fine after a relatively soft landing, it’s unlucky for Shane that Linda wasn’t. He is liable for her death. In the circumstances, he clearly did not intend to kill her, nor is there evidence of the sort of wicked recklessness required to prove murder. In this case, he could be charged with culpable homicide.

Shane’s only regret was that Linda had…boneitis.

Hunter, a member of the public who is unaware of what has just happened, enters the shop a few seconds later. He sees Linda lying on the floor in a pool of blood. He has a phobia of blood, and runs screaming from the shop.

Using the principles of the thin-skull rule and proximity, you can make a strong case for Shane being liable for the alarm caused to Hunter. If we accept that his conduct led to Linda’s death, the fact that another member of the public is alarmed by blood is foreseeable. In practice, this would probably not lead to a separate offence being libelled against Shane – rather, his responsibility re. Hunter would be reflected in the Crown’s narrative of events (i.e. that his conduct led to A, B and C, which caused alarm to X, Y and Z) when you consider the public order offences above.

In his panic, he decides to climb a nearby tree to escape. The tree is hit by lightning, injuring Hunter badly.

This is where we get into the realm of novus actus (novi acti, I think?).

You could argue that Hunter’s decision to climb a tree was either reasonable or unreasonable. On one hand, if somebody has a phobia, then the level of fear that implies could cause people to act in an otherwise irrational manner. On the other hand, he’s not being pursued by anyone, and climbing a tree can only take you so far when it comes to escape attempts.

In my view, on balance, I don’t think his conduct is so unforeseeable and unreasonable that it breaks the chain of causation on its own at this point. That said, I’m sure you could make very persuasive arguments for both positions.

Either way, how foreseeable is the lightning strike (and subsequent injuries caused to Hunter)? Given the facts that we have, it seems quite unforeseeable. We’ve come a long way: from Shane’s initial alarming act, to an Act of God.

If Hunter had been hit by a car immediately after escaping the shop in a panic, that would potentially be a proximate result of Shane’s actions, but it doesn’t seem fair to hold Shane liable for Hunter’s particular reaction leading him to decide to climb a tree, and climbing a particular tree that just happens to then be hit by lightning.

I would consider the chain of causation broken at this point, and as such Shane would not be liable for Hunter’s injuries from the lightning strike onwards.

He is taken to hospital, where a doctor accidentally gives him a fatal overdose of morphine.

As the chain of causation broke before this point, Shane would not be criminally liable for harm caused to Hunter by maltreatment at the hospital. For the sake of argument, though (i.e. assuming the chain had not been broken), I think it is a reasonable answer on this particular point to say: we need more information. What were the circumstances of the accident? Was it a case of simply picking up the wrong bottle from a cabinet, or had the doctor been drinking heavily before their shift, and was subsequently unable to read Hunter’s medical notes properly? Based on the particular facts and circumstances, this accident may constitute a novus actus interveniens, or may not.