7/30/2019 Seminar 7 Causation
1/23
1
CausationSeminar 7
7/30/2019 Seminar 7 Causation
2/23
2
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?
7/30/2019 Seminar 7 Causation
3/23
3
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
7/30/2019 Seminar 7 Causation
4/23
4
Factual causation
Equal and multiple causes?
YMC - prevailing positionyes still fulfill
factual causation
7/30/2019 Seminar 7 Causation
5/23
5
Imputable causation
Different tests have been designed
Direct result
Proximate and efficient cause Causa causans - immediate cause
Substantial cause
Foreseeability
7/30/2019 Seminar 7 Causation
6/23
6
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)
7/30/2019 Seminar 7 Causation
7/23
7
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?
7/30/2019 Seminar 7 Causation
8/23
8
Substantial cause test
Problems with this test:
Retrospective in naturewhat is wrong with
this if it is a factual inquiry?
Not a clear standard
7/30/2019 Seminar 7 Causation
9/23
9
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)
7/30/2019 Seminar 7 Causation
10/23
10
Intervening causes
What is an intervening cause?
Two acts committed by same actor in
succession
Intervening cause? Or treated as continuous,
combined act?
7/30/2019 Seminar 7 Causation
11/23
11
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
7/30/2019 Seminar 7 Causation
12/23
12
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
7/30/2019 Seminar 7 Causation
13/23
13
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 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
7/30/2019 Seminar 7 Causation
14/23
14
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
7/30/2019 Seminar 7 Causation
15/23
15
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
7/30/2019 Seminar 7 Causation
16/23
16
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
7/30/2019 Seminar 7 Causation
17/23
17
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
7/30/2019 Seminar 7 Causation
18/23
18
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.
7/30/2019 Seminar 7 Causation
19/23
19
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.
7/30/2019 Seminar 7 Causation
20/23
20
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
7/30/2019 Seminar 7 Causation
21/23
21
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)
7/30/2019 Seminar 7 Causation
22/23
22
Approaches to causation
Appear to be driven by unarticulated
policy/moral feelings towards certain case
scenarios rather than the legal tests employed?
7/30/2019 Seminar 7 Causation
23/23
23
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)