To What Extent is the Law Relating to Causation - Case Study Example

Causation is an element of law which connects an act to a prohibited result. It enables the law to establish whether a person is liable, via his act(s), for the damage or loss caused to another, and is a vital element of both criminal and tort law. The law consists in this area of an array of requirements that must be fulfilled to a certain degree before causation can be found to link the act to the outcome. This causes the law to become rather result-oriented; an act need not be illegal in itself provided the outcome is some form of prohibited and thus illegal result, and the liability incurred depends on the outcome caused. The fact that the act need not be illegal to find criminal liability requires stringent certainty that the act can be connected to the outcome and indeed the law is based on certain tests to ascertain whether or not a defendant can be found liable. But are these tests consistent? Can the principles of these tests be defined clearly? The outcome of an assessment of causation is either positive or negative; the defendant can be found liable or not; ‘there is no room for a compromise verdict’.1 In order to establish whether the aspect of causation is based on clear principles, it is necessary to explain and assess the existing law. It is important to note that the law is based on both factual and legal causation – the former providing the first step to assessing the more complex legal causation of the circumstances. Factual causation is otherwise known as the ‘but for’ test. Established in the case of R v White2, it simply asks: but for the defendant’s act, would the outcome have occurred? If it can be decided that the result would not have occurred if the defendant had not committed the act, then the first stage of causation is fulfilled. It creates a chain from the act to the outcome. Of course, the factual stage serves as a preliminary stage, for such a broad test as this requires limits and additional criteria of assessment; under this test it would be possible, albeit far-reaching, to attribute A’s killing of B to the fact that his mother gave birth to him – had she not, he would not be able to kill the victim. Of course, this is an extreme example and is extremely unlikely to happen, yet it does provide evidence that this test is far too open to exaggeration, which is why the courts have established further stages in finding causation. Legal causation provides a much more detailed test which serves to further connect (or not) the act to the consequence. It connects the act to the illegal, prohibited result – the damage or loss caused to the victim so that the defendant becomes punishable. Indeed, the law is never as simple as one would hope, and simple tests when finding liability are rarely sufficient to apply to every circumstance in a consistent manner. For example, B punches C in the stomach and C is rushed to hospital with a non-fatal injury. This is a simple scenario, but what if D, who is driving under the influence of alcohol, crashes into the ambulance causing fatal injuries to C? What if the doctors at the hospital treat the patient wrongly? In such a situation, factual ‘but for’ assessments of causation could find B, D and the doctors liable – it is clear that this preliminary test is not sufficient alone to establish liability. This is why legal causative tests have been developed to make any connections between the act and the result less remote. The concept of legal causation brings many more factors into the assessment of causation, namely responsibility, culpability and foreseeability. When multiple potential causes exist, these factors serve to assess on a closer proximity the actual causative act as distinct from other intervening acts. The more foreseeable the result as arising from the act, the more likely causation is to be found. In the case of R v Cheshire3 it was held that, despite negligent medical care, the defendant should have foreseen the victim’s death as a result of his act. Only subsequent medical treatment which is palpably wrong will serve to break the chain of causation.4 Thus, as one can see, a foreseeable consequence of an act will serve to establish causation, even if the act may not be the immediate cause of death. But how is foreseeability to be measured? It is easier to say in hindsight that a result was foreseeable once it has occurred, when it may not necessarily have been so before the act. The courts have tried to limit the application of foreseeability by the use of reasonability; therefore in the case of R v Pagett5 a man who used a girl as a shield while shooting at police should have foreseen the police shooting back at him as a reasonable reaction, therefore he was responsible for the girl’s death even though the policeman shot the girl. But what are the specific criteria? Does it stretch as far as the harm caused? It seems that ‘the notion of foreseeability seems to represent a wider principle of responsibility than that of……causing harm’.6 So what other aspects can serve to further define this potentially broad concept of causation? Does the level of foreseeability reflect the level of culpability, and if so, how far should this concept be able to reach? In the instance where multiple causes of the harm can be found, the test is one of ‘significant contribution’. In R v Pagett7 the defendant’s act, it was held, need not be the sole or even main cause of the result. It is enough that the act ‘contributed significantly to that result’.8 This test tries to ascertain whether intervening acts are enough to break the chain of causation and thus alienate the result from the initial act of the defendant. Case law does suggest that it is rather difficult to break the chain of causation, and the law seems to progress on a case by case basis. It appears that the initial act must be a cause rather than a condition, and make a positive contribution to the result.9 Thus in R v Dear,10 the court asked whether the injuries caused by the defendant were a significant cause of or contribution to death, despite the potential suicide of the victim. Similarly, the defendants in both R v Smith11 and R v Malchereck12 were found liable, despite intervening events; both acts were described as the operating and substantial cause of death. It appears that the chain of events is observed from the point of death to the initial act, and the most culpable act is attributed liability. Intervening acts are thus unlikely to break the chain of causation, for they must be entirely unforeseeable and totally overwhelming of the initial act. Thus, the intervention must be totally segregated from an expected chain of events arising from the initial act –whether the acts be by the victim, by a third party, or a naturally arising occurrence. R v Roberts13 instilled this principle, stating that only extreme intervening acts can serve to break the chain of causation. The function of the law here is to apply blame to somebody for harm caused, and if the defendant’s acts were the first, it is most likely that he is to blame. This is also applies, and should be considered in conjunction with victims who suffer from a condition that the defendant was not aware of, but which makes them more vulnerable than others. This an exception to the foreseeability test – if a victim suffers more harm due to a condition that the defendant was unaware of, the defendant will still be found guilty for the full extent of the injuries. It is arguable that ‘the legal rule permitting the jury to place the burden of bad luck on the wrongdoer rather than the victim is intelligible’.14 For example, to place a victim in the position in which she must choose whether to accept life saving treatment which is against her religion should rather be attributed to the defendant’s blame for causing her to have to make such a choice in the first instance.15 But just how far this concept should progress is also debatable; it has also been held that the thin skull concept is not limited to the physical condition of the victim and can also include psychological issues and beliefs of the victim; the broad ambit of this principle could cause some defendants to be liable for damage caused way beyond what they could possibly foresee or intend in the ‘heat of the moment’.16 Suffice it to say that this area seems to be the most controversial. Of course, a defendant will only be liable to the extent to which he has worsened the pre-existing condition, but in cases where death occurs, this limitation is not very helpful. Causation in respect of omission is not applied very differently to that of positive acts; though the defendant must be required to act, as in a contract of employment, the breach of which causes injury to another.17 A requirement to act also arises from a relationship such as parent-child or doctor-patient; where one depends on the other, a responsibility arises. This is a simple concept which is easy to apply provided such a relationship has been established.18 A defendant who acts lawfully though creates a dangerous situation is automatically assigned a duty of care to act upon the dangerous situation and thus diffuse it – he is presumed to have ascertained the duty to act.19 Of course, any omission does not create liability; for anyone could be assigned liability for not acting – there are strict limits on this aspect of causation, and rightly so. The courts have recognised the broad possibility of abuse of this concept, and have thus established the requirement to act created by some pre-existing relationship or other act. The aim of the law here is not to directly contribute harm caused to the defendant’s act or omission – it is to assign responsibility for the harm caused, for his pre-existing duty to act or not which was breached assigns him liability. It seems that the law of causation covered so far appears to be based on some specific principles, at least in theory. Whether they apply sufficiently in practice is another aspect. Each aspect of causation appears to co-exist with the other in order to limit their potentially broad application and keep the concept of causation as close to the relevant act as possible. It appears to be rather coherent and concise, yet case law does seem to overlap and exceptions exist. Of course, in case law generally, exceptions will always exist, for the law cannot predict each and every set of circumstances that may arise. A more in depth approach also concerns the concept of ‘foreseeability’ and how it is measured. It could be argued that the assessment of this concept can be deeply subjective, for there appears to be no specific criteria by which to judge it. How can one say with certainty the probability of an outcome arising from a certain act? For example, A has an argument with his wife and tells her to sleep on the sofa in the living room. During the night a lorry crashes into the living room after the driver has a heart attack caused by medication wrongly prescribed to him by his doctor and A’s wife is killed. Who is to blame in this case? It could not be said that A could not foresee such a consequence, and the doctor is most likely to blame. What if the doctor had advised the driver not to work that night? Yet if the doctor had not prescribed the drugs, could it be proven that he would not have a heart attack regardless? It is such remote cases that cause problems in the law of causation. Can there really exist objective criteria? Medical negligence cases appear to reduce the clarity of the law in this area. Is it assessed by the ‘but for’ test or some other aspect of the law in this area? As has already been stated, the negligent medical care must be extremely so in order to break the chain. In Bailey v Ministry of Defence and Another,20 the court assessed the concept of ‘material contribution to harm’, stating that it was a departure from the ‘but for’ test, but a departure on valid grounds. This suggests that a distinct approach to medical negligence cases has been adopted, which represents a whole new category of causation. Is this a plausible diversion? Indeed, Waller LJ stated that ‘one cannot draw a distinction between medical negligence cases and others’21 and it is indeed arguable that this case did not approach the circumstances on an unusual branch of concepts. It seems to represent that if the negligent care made a material contribution to the victims harm, then the ‘but for’ test is irrelevant. In any case, it seems that the law in this area does need some clarity, and if the courts are to adopt a different form of test for medical negligence cases, then they should openly do so with a clearly stated test. George Fletcher suggests that the ‘but for’ test of causation is insufficient and suggests that the courts ‘develop a view of causation that permits us consequences to particular actors’.22 It again highlights the remoteness of the ‘but for’ test, and questions whether it really does help to establish causation in any circumstance on a clear and precise level. Indeed, if the ‘but for’ test is so important, the ambit of responsibility is intensely broadened, and as Posner suggests, the person who becomes ill by breathing polluted air is able to sue the factory that emits polluted air – limits become blurred and extremely difficult to restrict.23 Should the law really be permitted to stretch so far its boundaries in the interests of finding a person to blame? If one is to stretch the boundaries, why not, as Fletcher suggests, blame the person breathing in the air who omits to move? The law appears to focus on blaming the initial actor, when intervening events are often uncontrollable, and cannot be said with certainty on a practical level that they are foreseeable. How are we to define the moment when one act is a cause and another is a mere condition? Of course, one must appreciate that, when the situation is so complex and unclear, then it would be extremely difficult to develop the law in any other manner. In many areas of the law such as this, the courts seem to favour a more flexible approach. Perhaps the clarity of the law has been sacrificed here in favour of flexibility. The courts seem to have laid a basis of tests and criteria, and then moulded them to fit each set of circumstances, particularly the complex ones. While some clarity is lost, one may ask; is clarity desirable? The issue is vast and circumstances that can arise are indefinite in number and combination, so it could be argued that a specific set of inadaptable tests could provide unfair results both for the defendant and the victim. One could argue that the courts have developed the law in this manner in order to aid its functioning. Indeed, the law is often not an area where strict clarity brings more advantages than blurred flexibility. Bibliography Ashworth, A. Principles of Criminal Law. 2nd edition, 1995 (New York: Oxford University Press) Becht, A. and Millar, F. The Test of factual Causation in Negligence and Strict Liability. 1961 (St. Louis: Committee on Publications, Washington University) Calabresi, G. Concerning Cause and the Law of Torts. 1975 University of Chicago Law Review 43 Coase, Ronald. The Problem of Social Cost. 1960 (3 J Law and Economics Review 1) Colvin, Eric. Causation in Criminal Law. 1989 (Bond Law Review 1.2) available at: http://works.bepress.com/eric_colvin/23 Davidson, Donaold. Causal Relations in Essays on Actions and Events. 1980 (Oxford: Clarendon Press) Feinberg, J. Harm To Others: The Moral Limits of The Criminal Law. 1984 (New York: Oxford University Press) Fletcher, George P. Rethinking Criminal Law. 2000 (New York: Oxford University Press) Goldberg, John C.P. Comment: Rethinking Injury and Proximate Cause. 2003 (San Diego Law Review, Vol. 40) Hall, Jerome. General Principles of Criminal Law. 2nd edition, 2005 (New Jersey: The Lawbook Exchange) Hart, Herbert L. and Honore, Tony. Causation in The Law. 2nd edition, 1985 (New York: Oxford University Press) Kadish, S. Causation and Complicity: A Study in the Interpretation of Doctrine. 1985 (California Law Review 73:323-410) Lucy, W. Conduct and Causation in Principles of Private Law. 2006 (Oxford: Clarendon Press) Ormerod, D. Smith and Hogan Criminal Law. 12th edition, (London: Oxford University Press) Posner, Richard. The Economic Analysis of Law. 2nd edition, 1977 (Boston: Little, Brown & Co.) Stapleton, J. Law, Causation and Common Sense. 1988 (Oxford Journal of Legal Studies 8:111-131) Turton, G. A Case For Clarity in Causation? 2009 Medical Law Review 17 (Oxford University Press) Waldron, J. Moments of Carelessness and Massive Loss in Philosophical Foundations of Tort Law, D. G. Owen (ed.) 1995 (Oxford: Clarendon Press) Read More