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Causation (law)

Causation (law)

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Encyclopedia
Causation is the "causal relationship between conduct and result". That is to say that causation provides a means of connecting conduct with a resulting effect, typically an injury. In criminal law, it is defined as the actus reus (an action) from which the specific injury or other effect arose and is combined with mens rea (a state of mind) to comprise the elements of guilt. Causation is only applicable where a result has been achieved and therefore is immaterial with regard to inchoate offense
Inchoate offense
An inchoate offense, inchoate offence, or inchoate crime is the crime of preparing for or seeking to commit another crime. The most common example of an inchoate offense is conspiracy...

s.

Background concepts


Most legal systems are to a greater or lesser extent concerned with the notions of fairness and justice
Justice
Justice is a concept of moral rightness based on ethics, rationality, law, natural law, religion, or equity, along with the punishment of the breach of said ethics; justice is the act of being just and/or fair.-Concept of justice:...

. If a state
State (polity)
A state is an organized political community, living under a government. States may be sovereign and may enjoy a monopoly on the legal initiation of force and are not dependent on, or subject to any other power or state. Many states are federated states which participate in a federal union...

 is going to penalise a person or require that person to pay compensation to another for losses incurred, this imposition of liability will be derived from the idea that those who injure others should take responsibility for their actions. Although some parts of any legal system will have qualities of strict liability
Strict liability
In law, strict liability is a standard for liability which may exist in either a criminal or civil context. A rule specifying strict liability makes a person legally responsible for the damage and loss caused by his or her acts and omissions regardless of culpability...

, in which the mens rea is immaterial to the result and subsequent liability of the actor, most look to establish liability by showing that the defendant was the cause (applying various legal tests in order to establish this) of the particular injury or loss.

Even the youngest children quickly learn that, with varying degrees of probability, consequences flow from physical acts and omissions. The more predictable the outcome, the greater the likelihood that the actor caused the injury or loss intentionally. There are many ways in which the law might capture this simple rule of practical experience: that there is a natural flow to events, that a reasonable man in the same situation would have foreseen this consequence as likely to occur, that the loss flowed naturally from the breach of contractual or tortious duty, etc. However it is phrased, the essence of the degree of fault attributed will lie in the fact that reasonable people try to avoid injuring others so, if harm was foreseeable, there should be liability to the extent that the extent of the harm actually resulting was foreseeable.

The relationship between causation and liability


Causation of an event by itself is not sufficient to create legal liability.

Sometimes causation is one part of a multi-stage test for legal liability. For example for the defendant to be held liable for the tort of negligence, the defendant must have (1) owed the plaintiff a duty of care
Duty of care
In tort law, a duty of care is a legal obligation imposed on an individual requiring that they adhere to a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first element that must be established to proceed with an action in negligence. The claimant...

; (2) breached that duty; (3) by so doing caused damage
Property damage
Property damage is damage to or the destruction of public or private property, caused either by a person who is not its owner or by natural phenomena. Property damage caused by persons is generally categorized by its cause: neglect , and intentional damage...

 to the plaintiff; and (4) that damage must not have been too remote. Causation is but one component of the tort.

On other occasions causation is the only requirement for legal liability (other than the fact that the outcome is proscribed). For example in the law of product liability
Product liability
Product liability is the area of law in which manufacturers, distributors, suppliers, retailers, and others who make products available to the public are held responsible for the injuries those products cause...

, the fact that the defendant's product caused the plaintiff harm is the only thing that matters. The defendant need not also have been negligent.

On still other occasions, causation is irrelevant to legal liability altogether. For example, under a contract of indemnity insurance
Indemnity
An indemnity is a sum paid by A to B by way of compensation for a particular loss suffered by B. The indemnitor may or may not be responsible for the loss suffered by the indemnitee...

, the insurer
Insurance
In law and economics, insurance is a form of risk management primarily used to hedge against the risk of a contingent, uncertain loss. Insurance is defined as the equitable transfer of the risk of a loss, from one entity to another, in exchange for payment. An insurer is a company selling the...

 agrees to indemnify the victim
Victimology
Victimology is the scientific study of victimization, including the relationships between victims and offenders, the interactions between victims and the criminal justice system — that is, the police and courts, and corrections officials — and the connections between victims and other social groups...

 for harm not caused by the insurer, but by other parties.

Because of the difficulty in establishing causation, it is one area of the law where the case law overlaps significantly with general doctrines of analytic philosophy to do with causation. The two subjects have long been somewhat intermingled.

Establishing causation


Where establishing causation is required to establish legal liability, it is usually said that it involves a two-stage inquiry.

The first stage involves establishing ‘factual’ causation. Did the defendant act in the plaintiff’s loss? This must be established before inquiring into legal causation.

The second stage involves establishing ‘legal’ causation. This is often a question of public policy: is this the sort of situation in which, despite the outcome of the factual enquiry, we might nevertheless release the defendant from liability, or impose liability?

Establishing factual causation


The usual method of establishing factual causation is the but-for test. The but for test inquires ‘But for the defendant’s act, would the harm have occurred?’ A shoots and wounds B. We ask ‘But for A's act, would B have been wounded?’ The answer is ‘No.’ So we conclude that A caused the harm to B. The but for test is a test of necessity. It asks was it ‘necessary’ for the defendant’s act to have occurred for the harm to have occurred.

The courts have generally accepted the but for test notwithstanding these weaknesses, qualifying it by saying that causation is to be understood “as the man in the street” would: Yorkshire Dale Steamship Co v Minister of War Transport , or by supplementing it with “common sense”: (March v Stramare (1991) 171 CLR 506 (High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...

).

This dilemma was handled in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...

 in State v. Tally, , where the court ruled that: “The assistance given ... need not contribute to criminal result in the sense that but for it the result would not have ensued. It is quite sufficient if it facilitated a result that would have transpired without it.” Using this logic, A and B are liable in that no matter who was responsible for the fatal shot, the other "facilitated" the criminal act even though his shot was not necessary to deliver the fatal blow.

However, legal scholars have attempted to make further inroads into what explains these difficult cases. Some scholars have proposed a test of sufficiency instead of a test of necessity. H. L. A. Hart
H. L. A. Hart
Herbert Lionel Adolphus Hart was an influential legal philosopher of the 20th century. He was Professor of Jurisprudence at Oxford University and the Principal of Brasenose College, Oxford. He authored The Concept of Law....

 and Tony Honoré
Tony Honoré
Anthony Maurice Honoré is a British lawyer and jurist, known for his work on ownership, causation and Roman law.Honoré was born in London but was brought up in South Africa. He served in the army during the Second World War and was severely wounded in the Battle of Alamein...

, and later Richard Wright, have said that something is a cause if it is a ‘necessary element of a set of conditions jointly sufficient for the result’. This is known as the NESS test. In the case of the two hunters, the set of conditions required to bring about the result of the victim's injury would include a gunshot to the eye, the victim being in the right place at the right time, gravity, etc. In such a set, either of the hunters' shots would be a member, and hence a cause. This arguably gives us a more theoretically satisfying reason to conclude that something was a cause of something else than by appealing to notions of intuition or common sense.

Hart and Honore, in their famous work Causation in the Law, also tackle the problem of 'too many causes'. For them, there are degrees of causal contribution. A member of the NESS set is a "causally relevant condition". This is elevated into a "cause" where it is a deliberate human intervention, or an abnormal act in the context. So, returning to our hunter
Hunting
Hunting is the practice of pursuing any living thing, usually wildlife, for food, recreation, or trade. In present-day use, the term refers to lawful hunting, as distinguished from poaching, which is the killing, trapping or capture of the hunted species contrary to applicable law...

 example, hunter A's grandmother's birth is a causally relevant condition, but not a "cause". On the other hand, hunter A's gunshot, being a deliberate human intervention in the ordinary state of affairs, is elevated to the status of "cause". An intermediate position can be occupied by those who "occasion" harm, such as accomplices. Imagine an accomplice to a murder who drives the principal to the scene of the crime. Clearly the principal's act in committing the murder is a "cause" (on the but for or NESS test). So is the accomplice's act in driving the principal to the scene of the crime. However the causal contribution is not of the same level (and, incidentally, this provides some basis for treating principals and accomplices differently under criminal law). Leon Green and Jane Stapleton are two scholars who take the opposite view. They consider that once something is a "but for" (Green) or NESS (Stapleton) condition, that ends the factual inquiry altogether, and anything further is a question of policy.

Establishing legal causation


Notwithstanding the fact that causation may be established in the above situations, the law often intervenes and says that it will nevertheless not hold the defendant liable because in the circumstances the defendant is not to be understood, in a legal sense, as having caused the loss. In the United States, this is known as the doctrine of proximate cause
Proximate cause
In the law, a proximate cause is an event sufficiently related to a legally recognizable injury to be held the cause of that injury. There are two types of causation in the law, cause-in-fact and proximate cause. Cause-in-fact is determined by the "but-for" test: but for the action, the result...

. The most important doctrine is that of novus actus interveniens, which means a ‘new intervening act’ which may ‘cut the chain of causation’.

Proximate cause


The but-for test often gives us the right answer to causal problems, but sometimes not. Two difficulties are immediately obvious. The first is that under the but-for test, almost anything is a cause. But for a tortfeasor's grandmother's birth, the relevant tortious conduct would not have occurred. But for the victim of a crime missing the bus
Bus
A bus is a road vehicle designed to carry passengers. Buses can have a capacity as high as 300 passengers. The most common type of bus is the single-decker bus, with larger loads carried by double-decker buses and articulated buses, and smaller loads carried by midibuses and minibuses; coaches are...

, he or she would not have been at the site of the crime and hence the crime would not have occurred. Yet in these two cases, the grandmother's birth or the victim's missing the bus are not intuitively causes of the resulting harm. This often does not matter in the case where cause is only one element of liability, as the remote actor will most likely not have committed the other elements of the test. The legally liable cause is the one closest to or most proximate to the injury. This is known as the Proximate Cause rule. However, this situation can arise in strict liability situations.

Intervening cause


Imagine the following. A critically injures B. As B is wheeled to an ambulance, she is struck by lightning. She would not have been struck if she had not been injured in the first place. Clearly then, A caused B's whole injury on the ‘but for’ or NESS test. However, at law, the intervention of a supervening event renders the defendant not liable for the injury caused by the lightning.

The effect of the principle may be stated simply:
if the new event, whether through human agency or natural causes, does not break the chain, the original actor is liable for all the consequences flowing naturally from the initial circumstances. But if the new act breaks the chain, the liability of the initial actor stops at that point, and the new actor, if human, will be liable for all that flows from his or her contribution.


Note, however, that this does not apply if the Eggshell skull
Eggshell skull
The eggshell skull rule is a well established legal doctrine used in some tort law systems, with a similar doctrine applicable to criminal law.-The law:...

 rule is used. For details, see the article on the Eggshell Skull doctrine.

Independent sufficient causes


When two or more negligent parties, where the consequence of their negligence joins together to cause damages, in a circumstance where either one of them alone would have caused it anyway, each is deemed to be an "Independent Sufficient Cause," because each could be deemed a "substantial factor," and both are held legally responsible for the damages. For example, where negligent firestarter A's fire joins with negligent firestarter B's fire to burn down House C, both A and B are held responsible. (e.g., Anderson v. Minneapolis, St: P. & S. St. R.R. Co., 146 Minn. 430, 179 N.W. 45 (1920).) This is an element of Legal Cause.

Summers v. Tice Rule


The other problem is that of overdetermination. Imagine two hunters, A and B, who each negligently fire a shot that takes out C's eye. Each shot on its own would have been sufficient to cause the damage. But for A's shot, would C's eye have been taken out? Yes. The same answer follows in relation to B's shot. But on the but-for test, this leads us to the counterintuitive position that neither shot caused the injury. However, courts have held that in order for each of the defendants to avoid liability for lack of actual cause, it is necessary to hold both of them responsible, See Summers v. Tice
Summers v. Tice
Summers v. Tice, , is a seminal California Supreme Court tort law decision relating to the issue of liability where a plaintiff cannot identify with specificity which among multiple defendants caused his harm. The case has had its greatest influence in the area of product liability in American...

, 33 Cal.2d 80, 199 P.2d 1 (1948). This is known, simply, as the Summers v. Tice Rule.

Concurrent actual causes


Suppose that two actors' negligent acts combine to produce one set of damages, where but for either of their negligent acts, no damage would have occurred at all. This is two negligences contributing to a single cause, as distinguished from two separate negligences contributing to two successive or separate causes. These are "concurrent actual causes". In such cases, courts have held both defendants liable for their negligent acts. Example: A leaves truck parked in the middle of the road at night with its lights off. B fails to notice it in time and plows into it, where it could have been avoided, except for want of negligence, causing damage to both vehicles. Both parties were negligent. (Hill v. Edmonds, 26 A.D.2d 554, 270 N.Y.S.2d 1020 (1966).)

Foreseeability


This is usually expressed as a question of 'foreseeability'. An actor is liable for the foreseeable, but not the unforeseeable, consequences of his or her act. For example it is foreseeable that if I shoot someone on a beach and they are immobilized, they may drown in a rising tide rather than from the trauma of the gunshot wound or from loss of blood. However it is not (generally speaking) foreseeable that they will be struck by lightning and killed by that event.

This type of causal foreseeability is to be distinguished from foreseeability of extent or kind of injury, which is a question of remoteness of damage, not causation. For example, if I conduct welding work on a dock that lights an oil slick that destroys a ship a long way down the river, it would be hard to construe my negligence as anything other than causal of the ship's damage. There is no novus actus interveniens. However, I may not be held liable if that damage is not of a type foreseeable as arising from my negligence: The Wagon Mound (No 1) [1961] AC 388 (Privy Council). That is a question of public policy, and not one of causation.

Another example of how foreseeability does not apply to the extent of an injury is the eggshell skull rule. If I punch someone in the jaw, it is foreseeable that he will suffer a bodily injury that he will need to go to the hospital for. However, if his jaw is very weak, and his jaw comes completely off from my punch, then the doctor bills, which would have been about $5,000 for wiring his jaw shut had now become $100,000 for a full-blown jaw re-attachment. I would still be liable for the entire $100,000, even though $95,000 of those damages were not reasonably foreseeable.

Other relevant considerations


Because causation in the law is a complex amalgam of fact and policy, other doctrines are also important, such as foreseeability and risk. Particularly in the United States, where the doctrine of 'proximate cause' effectively amalgamates the two stage factual then legal causation inquiry favoured in the English system, one must always be alert to these considerations in assessing the postulated relationship between two events.

Foreseeability tests


Some aspects of the physical world are so inevitable that it is always reasonable to impute
Imputation (law)
In law, the principle of imputation or attribution underpins the concept that ignorantia juris non excusat—ignorance of the law does not excuse. All laws are published and available for study in all developed states...

 knowledge of their incidence. So if A abandons B on a beach, A must be taken to foresee that the tide comes in and goes out. But the mere fact that B subsequently drowns is not enough. A court would have to consider where the body was left and what level of injury A believed that B had suffered. If B was left in a position that any reasonable person
Reasonable person
The reasonable person is a legal fiction of the common law that represents an objective standard against which any individual's conduct can be measured...

 would consider safe but a storm surge
Storm surge
A storm surge is an offshore rise of water associated with a low pressure weather system, typically tropical cyclones and strong extratropical cyclones. Storm surges are caused primarily by high winds pushing on the ocean's surface. The wind causes the water to pile up higher than the ordinary sea...

 caused extensive flooding throughout the area, this might be a novus actus. That B was further injured by an event within a foreseen class does not of itself require a court to hold that every incident falling within that class is a natural link in the chain. Only those causes that are reasonably foreseeable fit naturally into the chain. So if A had heard a weather forecast predicting a storm, the drowning will be a natural outcome. But if this was an event like a flash flood
Flash flood
A flash flood is a rapid flooding of geomorphic low-lying areas—washes, rivers, dry lakes and basins. It may be caused by heavy rain associated with a storm, hurricane, or tropical storm or meltwater from ice or snow flowing over ice sheets or snowfields...

, an entirely unpredictable event, it will be a novus actus.

The question of A's beliefs is no different. If A honestly believes that B is only slightly injured and so could move himself out of danger without difficulty, how fair is it to say that he ought to have foreseen? The test is what the reasonable person would have known and foreseen, given what A had done. It is the function of any court to evaluate behaviour. A defendant cannot evade responsibility through a form of wilful blindness. Fault lies not only in what a person actually believes, but also in failing to understand what the vast majority of other people would have understood. Hence, the test is hybrid, looking both at what the defendant actually knew and foresaw (i.e. subjective), and at what the reasonable person would have known (i.e. objective) and then combining the conclusions into a general evaluation of the degree of fault or blameworthiness.

Similarly, in the quantification of damages generally and/or the partitioning of damages between two or more defendants, the extent of the liability to compensate the plaintiff(s) will be determined by what was reasonably foreseeable. So if, for example, the plaintiff unexpectedly contributed to the extent of the loss suffered, that additional element would not be included in the damages award even though the plaintiff would not have had the opportunity to make this mistake had it not been for the defendant's breach. In cases involving the partitioning of damages between multiple defendants, each will be liable to the extent that their contribution foreseeably produced the loss.

Risk


Sometimes the reverse situation to a novus actus occurs, i.e. factual causation cannot be proved but the court nevertheless does want to hold the defendant liable. In Sindell v. Abbott Laboratories, the plaintiff's mother consumed diethylstilbestrol
Diethylstilbestrol
Diethylstilbestrol is a synthetic nonsteroidal estrogen that was first synthesized in 1938. Human exposure to DES occurred through diverse sources, such as dietary ingestion from supplemented cattle feed and medical treatment for certain conditions, including breast and prostate cancers...

 as a miscarriage preventative. The medicine, later re-called from the market, caused the defendant to develop a malignant bladder tumor due to its negligent manufacture. However, there were many manufacturers of that drug in the market. The manufacturer of the particular medication that caused the injury could not be ascertained for certain. The court held that the defendant was liable in proportion to its market share. They departed from traditional notions of pure cause and adopted a ‘risk based’ approach to liability. The defendant was held liable because of the amount of risk it contributed to the occasioning of the harm. Note that a risk theory is not strictly a theory built on notions of cause at all, as, by definition, the person who caused the injury could not be ascertained for certain. However, it does show that legal notions of causation are a complex mixture of factual causes and ideas of public policy relating to the availability of legal remedies. In R v Miller , the House of Lords said that a person who puts a person in a dangerous position, in that case a fire, will be criminally liable if he does not adequately rectify the situation.

Evidence proving causation


To be acceptable, any rule of law must be capable of being applied consistently so a definition of the criteria for this qualitative analysis must be supplied. Let us assume a purely factual analysis as a starting point. A injures B and leaves him lying in the road. C is a driver who fails to see B on the road and by running over him, contributes to the cause of his death. It would be possible to ask for a detailed medical evaluation at a post mortem
Autopsy
An autopsy—also known as a post-mortem examination, necropsy , autopsia cadaverum, or obduction—is a highly specialized surgical procedure that consists of a thorough examination of a corpse to determine the cause and manner of death and to evaluate any disease or injury that may be present...

 to determine the initial degree of injury and the extent to which B's life was threatened, followed by a second set of injuries from the collision and their contribution. If the first incident merely damaged B's leg so that he could not move, it is tempting to assert that C's driving must have been the more substantial cause and so represents a novus actus breaking the chain. Equally, if B was bleeding to death and the only contribution that the driving made was to break B's arm, the driving is not a novus actus and does not break the chain. But this approach ignores the issue of A's foresight.

Roads are, by their nature, used by vehicles and it is clearly foreseeable that a person left lying on the road is at risk of being further injured by an inattentive driver. Hence, if A leaves B on the road with knowledge of that risk and the foreseen event occurs, A remains the more proximate cause. This leaves whether the test of foresight should be subjective, objective or hybrid (i.e. both subjective and objective). Obviously, there is no difficulty in holding A liable if A had actual knowledge of the likelihood that B would be further injured by a driver. The fault which caused the initial injury is compounded by the omission to move B to a safer place or call for assistance. But let us assume that A never adverts to the possibility of further injury. The issue is now the extent to which knowledge may be imputed
Imputation (law)
In law, the principle of imputation or attribution underpins the concept that ignorantia juris non excusat—ignorance of the law does not excuse. All laws are published and available for study in all developed states...

 objectively.

The future?


A difficult issue that has arisen recently is the case where the defendant neither factually causes the harm, nor increases the risk of its occurrence. In Chester v Afshar , a doctor negligently failed to warn a patient of risks inherent in an operation, specifically cauda equina syndrome
Cauda equina syndrome
Cauda equina syndrome ' is a serious neurologic condition in which there is acute loss of function of the lumbar plexus, neurologic elements of the spinal canal below the termination of the spinal cord.-Causes:...

. The patient had the operation and a risk materialized causing injury. It was found that even if the patient had been warned, the patient would still have undergone the operation, simply at a different time. The risk of the injury would be the same at both times. Accordingly, the doctor neither caused the injury (because but for the failure to warn, the patient would still have gone ahead with the operation), nor increased the risk of its occurrence (because the risk was the same either way). Yet the House of Lords, embracing a more normative approach to causation, still held the doctor liable. Lawyers and philosophers continue to debate whether and how this changes the state of the law.

Novus actus interveniens

  • Victim's contribution R v Dear (1996) CLR 595. Believing that the victim had sexually interfered with his 12 year old daughter, the defendant attacked the victim with a Stanley knife. The defendant argued that the chain of causation had been broken because, two days later, the victim had committed suicide either by reopening his wounds or because he had failed to take steps to staunch the blood flow after the wounds had reopened spontaneously (i.e. the potential suicide constituted a novus actus interveniens). It was held that the real question was whether the injuries inflicted by the defendant were an operating and significant cause of or contribution to the death. Distinctions between the victim's mere self-neglect (no break in the chain) and the victim's gross self-neglect (break in the chain) were not helpful. The victim's death resulted from bleeding from the artery severed by the defendant. Whether the resumption or continuation of that bleeding was deliberately caused by the victim, the defendant's conduct remained the operative and significant cause of the victim's death.
  • Third party's inadvertent contribution R v Smith (1959) 2 QB 35 the defendant stabbed his victim twice in a barrack room brawl. Another soldier carried him to the medical centre but dropped him twice. The medical captain was very busy and failed to recognise the extent of the injuries. If the soldier had received proper treatment, he would have had a good chance of a complete recovery. Smith was convicted of manslaughter
    Manslaughter in English law
    In the English law of homicide, manslaughter is a less serious offence than murder, the differential being between levels of fault based on the mens rea . In England and Wales, the usual practice is to prefer a charge of murder, with the judge or defence able to introduce manslaughter as an option...

     because the wound was the "operating and substantial cause of death". In R v Cheshire (1991) 3 AER 670, the victim was shot in the leg and stomach. In hospital, he suffered pneumonia and respiratory problems in intensive care so had a tracheotomy. After two months, he died. There was some medical negligence because the tracheotomy had caused a thickening of tissue ultimately causing suffocation. In upholding the conviction for murder
    Murder in English law
    Murder is an offence under the common law of England and Wales. It is considered the most serious form of homicide, in which one person kills another either intending to cause death or intending to cause serious injury .-Actus reus:The definition of the actus reus Murder is an offence under the...

    , Beldam LJ. laid down the following test:
Even though negligence in the treatment of the victim was the immediate cause of his death, the jury should not regard it as excluding the responsibility of the accused unless the negligent treatment was so independent of his acts, and in itself so potent in causing death, that they regard the contribution made by his acts as insignificant.
  • Third party's deliberate intervention R v Malcherek (1981) 73 Cr. App. R. 173. The victim was placed on a life support machine and, after determining that she was brain dead, the doctors turned off the machine. The defendant appealed the conviction of murder arguing that the doctors had broken the chain of causation by deliberately switching off the life support machine. It was held that the original wounds were the operating and substantial cause of death, and that a life support machine does no more than hold the effect of the injuries in suspension and when the machine is switched off, the original wounds continue to cause the death no matter how long the victim survives after the machine's disconnection. In R v Pagett (1983) 76 Cr. App. R. 279, to resist lawful arrest, the defendant held a girl in front of him as a shield and shot at armed policemen. The police instinctively fired back and killed the girl. The Court of Appeal held that the defendant's act caused the death and that the reasonable actions of a third party acting in self-defence
    Self-defence in English law
    Self-defence is part of private defence, the doctrine in English law that one can act to prevent injury to oneself or others or to prevent crime more generally – one has the same right to act to protect others as to protect oneself. This defence arises both from common law and the Criminal Law Act...

     could not be regarded as a novus actus interveniens because self-defence is a foreseeable consequence of his action and had not broken the chain of causation.

Foreseeability

  • Victim's conscious actions R v. Blaue
    R v. Blaue
    R v Blaue [1976] 61 Cr App R 271 is an English criminal law case in which the Court of Appeal decided that the refusal of a Jehovah's Witness to accept a blood transfusion after being stabbed did not constitute a novus actus interveniens for the purposes of legal causation.-Facts:The defendant...

     (1975) 61 Cr. App. R. 271 is a criminal law application of the "thin skull rule" in criminal law
    Criminal law
    Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...

    . The defendant visited the home of a Jehovah's Witness and demanded sex. When she refused, he stabbed her four times. At hospital, she refused a blood transfusion which would have saved her life. There was no suggestion that the doctors had acted improperly. Blaue was convicted of manslaughter by an unlawful act, namely wounding with intent
    Grievous bodily harm
    Grievous bodily harm is a term of art used in English criminal law which has become synonymous with the offences that are created by sections 18 and 20 of the Offences against the Person Act 1861....

    . "But for" his actions, she would not have been faced with the choice about treatment and those who use violence on others must take their victims as they find them (albeit that he had known her religion and so her refusal was foreseeable).

Causation: law and science compared


Science and law have different functions but share striking similarities. Both purport to provide rational, reasoned, independent, unbiased processes concerned with the objective assessment of evidence. There are also striking differences. Scientific assertions compared with determinations of legal causation have the following characteristics:
  • they are population-based, not individual; general not particular;
  • they are probabilistic, not deterministic;
  • they are generally expressed as the refutation of the hypothesis and not a finding of fact or proof of an allegation;
  • the evidence is not exhaustive, whereas an adjudication is determined according to the evidence available.
  • science is not as concerned with finality as is law. There is no res judicata or collateral estoppel in science. Continuing scrutiny is always available and the jury can be brought back in at any time when new data becomes available.

The major distinction between legal determinations and scientific assertions lies in the concept of certainty. The legal concept of causation is deterministic: it is an expression of the fiction of certainty, an absolute concept. The scientific concept of causation is probabilistic: it is an expression of the uncertainty of truth, an asymptotic concept.