Causation And Remoteness Essay Definition
Explain the meaning of the term 'causation'.
Factual Causation is based on the rule of the ‘but for’ test and legal causation is where the court has to decide if the defendant’s actions were the main cause of death.
Grade: A-C | £0.00.
The concept of causation is based upon the elements which go to make up criminal offences. Namely that there must be an actus reus or guilty act and the necessary state of mind or mens rea.
To say that actus reus means the guilty act is probably an over simplification. It is not enough that the defendant has committed an act, the term is wider in its application. It includes all the circumstances surrounding the commission of the offence including particular conduct, results or consequences or states of affairs. In some situations it also includes omissions but these are restricted to special circumstances. In the case of murder, for example, there must be an unlawful killing of a human being under the Queen’s peace with malice aforethought. If the victim does not die then there may be an alternative charge of one of the more serious assaults.
The prosecution must establish a causal link between the victim and the defendant. This is a matter of evidence which should be brought out at the trial. It is a matter for the jury at the end of the day. It is their decision i.e. whether to convict or to acquit. In this regard the jury is usually asked to consider two questions:
Did the acts of the accused bring about the resulting harm or, in other words was the defendant responsible for the factual cause of death?
Secondly, was the accused also responsible for the legal cause of death?
The law accepts that there needs to be some conduct which leads to a significant contribution otherwise it would not be fair to place responsibility upon the shoulders of the accused. In the case of R v White (1910) this issue was a turning point at the trial. The defendant had intended to kill his mother. He planned to poison her and poisoned her night time drink but she died of a heart attack and not from drinking the poisoned drink. As the defendant had not factually caused her death, he could not be found guilty of her murder but he was held responsible for attempted murder.
The 'but for' test is used to help the courts decide on the matter of factual cause. In effect the courts ask themselves the question 'but for the the conduct of the accused would the harm complained of occurred?' If the answer is yes then the defendant should properly be considered responsible. In addition to establishing whether the defendant was responsible for the factual cause of death ('the but for' rule) it must be shown that the defendant's act was a significant cause of the resulting harm i.e. the legal cause.
In R v Pagett (1983), Pagett had used his ex-girlfriend as a human shield in a stand off with police when he was holding the girlfriend hostage. During an exchange of gunfire with the police the girl was shot by the police and died. “The act of firing at the police, and the act of holding Gail Kinchen as a shield in front of him when the police might well fire shots in his direction in self-defence” were said to “constitute the actus reus of the manslaughter”. Pagett was found guilty of her unlawful death even though she was not killed by one of his bullets. He had not been the main cause of her death but she would not have been in that position 'but for' his actions. He was found guilty of manslaughter.
A chain of causation is sometimes referred to when the defendant triggers a series of events involving others who may also contribute to the harm or injury of the victim. The question then arises whether the original perpetrator should be responsible for the eventual outcome.
A break in the chain of causation means that, when this occurs, the courts interpret this to mean that the accused’s conduct was not the cause of the harm or injury. This is unusual but when it does occur it will result in the accused being acquitted. A break in the chain of causation arises where there is a new intervening act or ‘novus actus interveniens’. In these circumstances it may not be appropriate to find the defendant responsible for the eventual outcome as others have played an important part in bringing this about. The law may still want to blame the accused for the way in which he or she did act but the law will also want to hold others responsible for the part they played if they were the main contributor to the outcome.
The concept of a break in the chain of causation is important to both the jury and the victim. It is important that the jury has all the facts and understands what part others may have played in order to be fair in their decision. The victim’s family will also want to know who caused the outcome, to help them feel that society has correctly identified the wrongdoer and that they have been appropriately punished. This will enable the victim's families to move on with their lives.
In some cases the defendant may seek to blame others who may have been involved but this does not in itself relieve the defendant of responsibility. As in the case of R v Benge (1865) where a foreman was charged with manslaughter when railway tracks were not relaid in time and a train crashed as a result, killing many people. It was no defence to say that others had not acted as they should, Benge argued that, although he was negligent, the flagman had not gone far enough up the track and the train driver had not been paying close enough attention, what was material was that the accused's acts were a significant factor in causing the resulting deaths.
It is also important to society generally, as part of the criminal process, to enable society to identify behaviour which is wrong and unacceptable and to punish those who are ‘blameworthy’.
Two cases that probably best illustrate the principles of causation are the cases of R v Smith(1959)and R v Jordan (1956).
In R v Smiththe defendant stabbed the victim who had to be hospitalised. On the way to the medics the victim was dropped twice and in addition received an incorrect diagnosis which resulted in poor medical treatment. The accused claimed that he was not responsible for the victim’s death. However the defendant’s arguments were not accepted and he was convicted of murder on the basis that his actions were the main cause of the victim’s death.
The case of R v Jordan is distinguishable on the material facts of the case. In this case the victim was also stabbed and had to be treated in hospital. This resulted in the victim experiencing an allergic reaction to medication. The administration of the medication resumed on the instructions of one of the doctors despite the adverse reaction being noted. The victim subsequently died some days later by which time the stab wounds were healing. The Court of Appeal upheld the defendant’s appeal against his conviction and distinguished this from the case of R v Smith. Summing up the medical evidence Hallett J stated “a reasonable jury would not be satisfied that the defendant's acts had been the material cause of the victim's death.
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R v Pagett (BAILII:  EWCA Crim 1 ) (1983)
In this essay the concept of causation is discussed and the term actus reus is explained.
The case of R v White (1910) is examined with regard to the 'but for' rule.
It looks at:
Cases discussed include:
R v Benge (1865)
R v Smith (1959)and
R v Jordan (1956).
- For "Remoteness of vesting" see instead Rule against perpetuities.
In English law, remoteness is a set of rules in both tort and contract, which limits the amount of compensatory damages for a wrong.
In negligence, the test of causation not only requires that the defendant was the cause in fact, but also requires that the loss or damage sustained by the claimant was not too remote. As with the policy issues in establishing that there was a duty of care and that that duty was breached, remoteness is designed as a further limit on a cause of action to ensure that the liability to pay damages is fairly placed on the defendant.
See also: English tort law
The traditional approach was that once a breach in the duty of care had been established, a defendant was liable for all the consequent damage no matter how unusual or unpredictable that damage might be. In Re Polemis while docked, workers employed to unload the ship negligently dropped a plank into the hold, which struck something, causing a spark that ignited petrol vapour lying in the hold. The fire destroyed the whole ship. The Lords held that although the fire was not a reasonably foreseeable consequence of the plank falling, there had been a breach of the duty of care and all damage representing a direct consequence of the negligent act was recoverable. It was determined that once some harm was foreseeable, the defendant would be liable for the full extent of the harm. That particular consequences are possible does not make them reasonably foreseeable. This will particularly be the case when there are a significant number of links constituting the chain. The more links, the less likely that consequence may be considered reasonably foreseeable.
However, in The Wagon Mound (No 1) a large quantity of oil was spilt into Sydney Harbour from the Wagon Mound and it drifted under the wharf where the claimants were oxyacetylene welding. The resulting fire caused extensive damage to the wharf and to vessels moored nearby. The Privy Council replaced the direct consequence test with the requirement that, in order to be recoverable, damage must be foreseeable in all the circumstances, thus, although pollution was a foreseeable consequence of the spillage, an outbreak of fire was not. Viscount Simonds held at pp 422–423:
|“||A man must be considered to be responsible for the probable consequences of his act. To demand more of him is too harsh a rule, to demand less is to ignore that civilised order requires the observance of a minimum standard of behaviour.||”|
He went on to say at p 423, that a man should be responsible for the necessary or probable consequences of his act (or any other similar description of them), "not because they are natural or necessary or probable, but because, since they have this quality, it is judged by the standard of the reasonable man that he ought to have foreseen them."
In Hughes v Lord Advocate a child climbed down a manhole left uncovered and protected only by a tent and paraffin lamp. When he came out he kicked over one of the lamps, which fell into the hole and caused an explosion. The child was burned. Lord Reid said at 845,
|“||So we have (first) a duty owned by the workmen, (secondly) the fact that if they had done as they ought to have done there would have been no accident, and (thirdly) the fact that the injuries suffered by the appellant, though perhaps different in degree, did not differ in kind from injuries that might have resulted from an accident of a foreseeable nature. The ground on which this case has been decided against the appellant is that the accident was of an unforeseeable type. Of course, the pursuer has to prove that the defender's fault caused the accident and there could be a case where the intrusion of a new and unexpected factor could be regarded as the cause of the accident rather than the fault of the defender. But that is not this case. The cause of this accident was a known source of danger, the lamp, but it behaved in an unpredictable way...||”|
The Wagon Mound (No 1) test is less generous to claimants than the direct consequence test because it may impose an artificial limit on the extent of damages that can be claimed. To mitigate some of the potential unfairness of the rule, the courts have been inclined to take a relatively liberal view of whether damage is of a foreseeable type. In Lamb v. London Borough of Camden a water main maintained by the Council broke, which caused extensive damage to the claimant's house. Because of the damage, the claimant moved out and squatters moved in, causing further damage to the house. The court held that the secondary damage caused by the squatters was too remote. The council was liable for the damage caused by the broken water main, but the land owner is responsible for keeping trespassers at bay. Lord Denning said at p636 that remoteness of damages is just a question of policy with the element of foreseeability being determined by what is perceived to be instinctively just. This means that the reasonable foreseeability test is not always appropriate for cases where the acts of the claimant may demonstrate some fault. Nevertheless, the courts can award damages based on foreseeability where public policy requires it, e.g. in the egg-shell skull cases such as Smith v Leech Brain & Co.
Although some courts have on occasion adopted a more restrictive approach, the decision of the Lords in Jolley v Sutton London Borough Council, suggests that the liberal approach is to be preferred. The council allowed an abandoned boat to remain on its land and, over a period of time, two boys began to paint and repair it. Unfortunately, the boat fell on one of the boys, seriously injuring him. The claimant's case was that the boat represented a trap or allurement. The council accepted that it had been negligent in not removing the boat but that it had not been foreseeable that two boys would try to jack up the boat and so move it from the cradle upon which it lay. Lords Steyn and Hoffman stated that it is not necessary to foresee the precise injury that occurred, but injury of a given description. "The foreseeability is not as to the particulars but the genus. And the description is formulated by reference to the nature of the risk that ought to have been foreseen." (at para 37) So, in Hughes it was foreseeable that a child might be injured by falling in the hole or being burned by a lamp or by a combination of both. Although the injuries were not actually sustained in a foreseeable way, the injuries that actually materialised fell within the predictable range. Thus, the Wagon Mound No.2 and Hughes are compatible. The former alleged that damage by burning was not damage of a description that could reasonably have been foreseen, while the latter asserted that the injury was not reasonably foreseeable. In both cases, the claimants could recover damages.
Novus actus interveniens
Main article: Novus actus interveniens
See also: English contract law
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- Hadley v Baxendale (1854) 9 Exch 341
- Fletcher v Tayleur (1855) 17 CB 21, a defendant who agrees to supply or repair a chattel obviously being used for profit making is liable for loss of ordinary profits as a result of failing to be on time.
- British Columbia and Vancouver Island Spa, Lumber and Saw Mill Co Ltd v Nettleship (1868) LR 3 CP 499
- Horne v Midland Railway Co (1873) LR 6 CP 131, stands for the proposition that the defendant assumed liability for the exceptional loss.
- Simpson v London and North Western Railway Co (1876) 1 QBD 274, the defendant must at least know of the special circumstances; also Seven Seas Properties Ltd v Al-Essa (No.2)  1 WLR 1083
- Hydraulic Engineering Co Ltd v McHaffie, Goslett & Co (1878) 4 QBD 670, McHaffie contracted to make a gun, known to form a part of a gunpowder pile driver, to be built for Justice. It was delivered late, and Justice refused to take it. Bramwell LJ held that Hydraulic could recover the expenditure in making other parts of the machine, ‘useless except as old iron’ because it was built specially, the cost of painting it to preserve and a reasonable net profit that they would have made on the contract with Justice. Brett LJ and Cotton LJ concurred.
- Balfour Beatty v Scottish Power plc (1994) SLT 807, one supplying a commodity for complicated construction projects will not be assumed to be aware of all little details.
- Victoria Laundry (Windsor) Ltd v Newman Industries Ltd  2 KB 528
- Koufos v Czarnikow Ltd or The Heron II  1 AC 350
- H Parsons (Livestock) Ltd v Uttley Ingham & Co Ltd  1 QB 791
- The Pegase or Satef-Huttenes Albertus SpA v Paloma Tercera Shipping Co SA  1 Lloyd’s LR 175
- Commonwealth of Australia v Amann Aviation Pty Ltd (1991) 174 CLR 64; noted by Treitel, 108 LQR 226
- South Australia Asset Management Co v York Montague  3 All ER 365
- Jackson v Royal Bank of Scotland  UKHL 3, Lord Walker says [46-9] the two limbs of Hadley are not ‘mutually exclusive’.
- The Achilleas  UKHL 48
Contract and tort
- Henderson v Merrett Syndicates Ltd  2 AC 145, Lord Goff, 185, ‘the rules as to remoteness of damage… are less restricted in tort than they are in contract’.
- Brown v KMR Services Ltd  4 All ER 598, kind of loss must be foreseeable, not the extent of loss; Stuart Smith LJ, 620–1 and Hobhouse LJ, 640–3 distinguish Victoria Laundry, and criticise saying that the distinction between super profits and normal ones is just one of degree.
This section needs expansion. You can help by adding to it.(March 2011)