Theories of Causation Essay Example

similar in cases like Jordan and Cheshire where the court held that the defendants’ actions did not cause the death of the victims because their actions were no longer the operative and substantial cause of the victim’s death. The substantial cause test can in fact be more sensitive to the facts in establishing causation than the foresight test. The court in the US case of People v. Lewis stated that defendant’s mortal gunshot wound killed the victim although the victim cut his own throat after receiving the gunshot hus hastening his death. The court held that although the victim intervened, it did not absolve the defendant of blame. When he cut his own throat, the victim was not only languishing from a mortal wound but actually dying and the victim’s own action was merely another cause of death. The court held that the defendant’s actions were still a substantial cause. The result of the foresight test in this case would have differed because it was not reasonably foreseeable that the victim would in fact hasten his own death.

This would mean the victim’s actions would absolve the defendant of criminal responsibility even though he inflicted a mortal wound. A similar example can also be seen in Ng Keng Yong v. PP where the court held that the defendant naval officers caused the death of the victims despite the negligence of a third party vessel colliding with their vessel. Their actions were deemed a substantial cause thereby establishing causation. Yeo, Morgan & Chan contends that the foresight test would have imputed causation to the defendants’ actions because the other vessel’s negligence was reasonably foreseeable.

However, negligence is the

unreasonable failure of a party to take due care. The defendants could not reasonably foresee that the oncoming vessel would unreasonably fail to take evasive action. Therefore, employing only the foresight test would not establish causation between the defendants’ actions and the victims’ deaths. This would be grave injustice especially given that their actions were a substantial and operative cause. The foresight test is not better than the substantial cause test; it is another test in process of establishing causation.

An alternative manner to analyse causation would be to use factual causation before using the substantial cause test. Where the results of the substantial cause test are inconclusive because of intervening acts, the foresight test should then be used to determine if the intervening was reasonably foreseeable. While Yeo, Morgan & Chan appears to subscribe to this view in saying that both tests should be satisfied before causation is established, it is referring to how the cause must not be negligible and any intervening causes reasonably foreseeable.

This does not take into account situations where an unforeseeable action intervenes but is merely a concurrent cause not vitiating the defendant’s actions which are still a substantial and operative cause. More than one cause The substantial cause test is portrayed as rudimentary, determining whether an intervening cause absolves the defendant’s criminal responsibility on the weight of the cause. However, the substantial cause test merely determines whether an action can be determined to have contributed to the death.

It does not determine whether an intervening cause vitiates the defendant’s responsibility. In fact, it provides for the possibility that there are concurrent causes whereas the foresight test does not appear to take

into account that possibility. The substantial cause test used in conjunction with concepts of voluntariness, foreseeability and reasonableness can effectively determine if an intervening cause is a novus actus interveniens absolving the defendant. Reasonable vs reasonably foreseeable

For cases involving the intervention of the victim in his own death, Yeo, Morgan & Chan appears to conflate the natural consequence test and the reasonably foreseeable test. It is asserted that Basappa v. State was decided by the courts using the foresight test because the victim’s actions were a normal and necessary consequence of the defendant’s acts. The authors also cite R. v. Butcher where the jury was directed by the judge to decide if the defendant might have reasonably foreseen the victim’s actions as a consequence of his actions as further approval of the foresight test.

However, the court in Royall v. R. viewed the natural consequence or reasonable test and the reasonably foreseeable test as two distinct tests. While there is little difference between the two tests, the difference lies in the perspective from which reasonableness is established. The natural consequence test examines whether the victim’s actions were reasonable whereas reasonable foreseeability examines if the defendant could have foreseen the victim’s actions. The two tests can produce very different results. Yeo, Morgan & Chan argues that the case of Nga Moe v.

The King was correctly decided by applying the foresight test. The test applied here is in fact the reasonably foreseeable test which stated that the defendant could not reasonably foresee that the victim would decline medical treatment therefore his action was a novus actus interveniens. If the court applied the natural consequence test, which is subsumed

under the foresight test, the court could hold that the victim’s declining to stay in hospital because of a fever was a reasonable act therefore the victim’s actions are not a novus actus interveniens.

The foresight test cannot possibly hold both the natural consequence and reasonably foreseeable test because they could quite possibly produce two different results when applied to the same facts. This was the situation in Royall v. R. where the court was divided over whether causation could be imputed to the defendant’s actions or did the victim’s act absolve him of criminal responsibility. Conclusion Yeo, Morgan & Chan is inaccurate in criticising the substantial cause test as a lesser cousin of the foresight test and incapable of establishing causation in cases with intervening causes.

The substantial cause test in isolation cannot determine if an intervening cause vitiates the original cause but does so in combination with other concepts of causation. The test is also capable for taking into account concurrent causes and cases where the intervening cause is not foreseeable but the original cause is still a substantial and operative cause. By trying to incorporate the natural consequences and reasonably foreseeable tests within the foresight test, Yeo, Morgan & Chan may have tried to include too many tests leaving it internally inconsistent and flawed.

If applied to a particular fact pattern the two tests could give diametrically opposed results. Bibliography CASES 1. R. v. Smith, [1959] 2 Q. B. 35 at 42-43 2. R. v. Jordan, (1956) 40 Cr App Rep 152, CCA 3. R. v. Cheshire, [1991] All ER 670 4. People v. Lewis, 124 Cal. 551 (Sup. Ct. 1899) 5. Ng Keng Yong

v. PP, [2004] SGHC 171 6. Basappa v. State, AIR 1960 Mysore 228 7. R. v. Butcher, [1986] VR 43 8. Royall v. R. , (1991) 172 C. L. R. 378 9. Nga Moe v.

The King, AIR 1941 Rangoon 141 SECONDARY MATERIALS: MONOGRAPHS 1. Stanley Yeo, Neil Morgan & Chan Wing Cheong, Criminal Law in Malaysia and Singapore (Singapore: Lexis Nexis, 2007) 2. JC Smith, Smith & Hogan Criminal Law, 10th ed. (N. p. : Butterworths, 2002), p. 47 3. William Wilson, Criminal Law Doctrine and Theory, 2d ed. (N. p. : Longman, 2003) SECONDARY MATERIALS: ARTICLES 1. Stephen Shute, “Causation: Foreseeability v Natural Consequences” (1992) 55 Mod. L. Rev. 584