Causation is the causal relationship between conduct and result. In criminal law, a person can be held criminally responsible only if the event is considered to have resulted from their actions.[1] The determination of an individual’s responsibility for harm involves two key causation tests: factual and legal causation.[2]
However, if a subsequent event or action by a third party, victim, or natural occurrence becomes more directly responsible for the harm, than it can break the original chain of causation. These interventions are described as “novus actus interveniens” which results in a break in the chain of causation.[3] It is broadly divided into three categories: intervention by third parties, intervention by natural events, and intervention by the victim.[4] In the realm of criminal law, the “novus actus” principle often comes into play when medical negligence enters the picture as a potential turning point in a case.[5]
The paper will provide a comprehensive analysis of causation in cases involving the issue of medical intervention, exploring key legal tests and principles used by courts to determine causal responsibility. It will firstly examine the various judicial approaches to assessing medical interventions as potential interruptions in the causal chain between an initial harmful action and its ultimate consequences. Secondly, it will investigate the development and application of the “take your victim as you find him” principle. Lastly, the paper will critically analyse the limitations and challenges inherent in these legal tests for establishing medical causation.
THEORETICAL FRAMEWORK OF CAUSATION IN CRIMINAL LAW
The function of the law of causation is to identify the conditions under which the result may nevertheless be attributed to the accused.[6] For instance, if a person’s unlawful act contributes to the occurrence of a prohibited result, the doctrine of causation determines whether the person can be held liable for causing the illegal act. Causation is comprised of two key components: factual causation and legal connection.
CAUSAL CONNECTION
The starting point of any causal inquiry is the factual or “but for test”.[7] The legal principle of “but for test” states that a person’s unlawful conduct is considered the cause of harm only if the harmful result would not have occurred without that specific conduct. In other words, causation is established by demonstrating that the harm would not have happened but for the person’s actions. The “but for” test is a fundamental principle in establishing causation, particularly in legal and medical contexts. In medical settings, this test becomes crucial when determining whether a healthcare provider’s action or inaction directly led to a patient’s harm or adverse outcome.
LEGAL CAUSATION
In legal contexts, establishing liability requires proving that the defendant’s wrongful actions were the direct cause of the harm, meaning the harmful outcome would not have happened otherwise. This is called Factual causation. Once factual causation has been established, the next step is to examine the issue of legal causation.[8] Legal causation requires demonstrating that the harm would not have been caused by independent factors such as the claimant’s own actions, third-party interventions, or natural events that could potentially absolve the defendant of responsibility.[9] Legal causation is particularly significant in cases involving medical intervention, as it examines whether the defendant’s actions can still be considered a proximate cause of the harm, even after the action of medical professionals or the victim’s subsequent medical treatment.
NOVUS ACTUS INTERVENIENS
When a defendant’s actions are considered a substantial cause of harm (more than a trivial contribution), the legal analysis typically focuses on how “intervening acts” between the defendant’s conduct and the final harmful outcome might affect the defendant’s legal responsibility.[10] In complex legal scenarios, standard causal rules often fail to definitively establish liability when unexpected events intervene after initial unlawful conduct. These events—such as unusual victim responses or medical negligence—introduce additional causal factors. Courts should then conduct a clear evaluation by carefully examining both the original defendant’s actions and subsequent third-party conduct to fairly allocate responsibility for the ultimate harm.[11] In some cases involving the issue of causation, a third party’s or victim’s subsequent actions might become more direct cause of harm following the defendant’s initial harmful conduct. Under some specific circumstances, these interventions can potentially absolve the original defendant of legal responsibility.[12]
MEDICAL INTERVENTION AS A CAUSAL COMPLICATION
The most complex legal and philosophical debates regarding causation often emerges in the context of murder and manslaughter cases. In such cases, a challenge emerges when the victim receives medical treatment that is flawed or potentially improper after the defendant’s initial harmful act. The issue arising from those cases is, under what circumstances will the medical intervention break the chain of causation? The issue arising out of such circumstances is, whether the defendant is liable for the victim’s death or whether there is a break in the chain of causation. Criminal law addresses the complexities of causation by requiring defendants to establish both factual and legal causation in a victim’s death.[13] The prosecution must prove that the defendant’s actions were not merely incidental but played a significant role in causing the victim’s death.[14] Once the defendant’s actions are established as a factual cause of the victim’s death, criminal responsibility can be established if any of the following three legal principles are met, however in cases involving medical interventions that blur the lines of criminal responsibility. The three principles are (a) the ‘operative cause’ principle, (b) the ‘foreseeable result’ principle, and (c) the ‘take your victim as you find him’ principle.[15]
- Operating Cause
Criminal liability becomes complex when medical intervention disrupts or obscures the causal link between the defendant’s original act and the eventual outcome. Central to this legal complexity is the concept of “operating cause” – a principle that seeks to determine responsibility when a victim’s death results from a combination of the defendant’s initial act and later medical treatment. The first principle, drawn from medical treatment cases, establishes that a defendant remains liable for a victim’s death even if medical negligence intervened, provided that the defendant’s original injuries were still operating at the time of the victim’s death.[16] In other words, if the defendant’s initial wounds or injuries continued to be an operating cause in the victim’s condition, the defendant can be held responsible for the fatal outcome, regardless of subsequent medical complications or errors.
This principle can be seen in R v Smith,[17] where the defendant stabbed the deceased in a barrack room brawl, after which when he was taken to the hospital, he was dropped twice at the same time the medical treatment administered to him was also significantly negligent and the deceased died subsequently as a result of the injuries. The court held that at the time of the death of the deceased, the wounds inflicted by the defendant were still an ‘operating’ and ‘substantial cause’.
The decision of the court seems to stretch the concept of causation too far by holding the defendant responsible for a death that was substantially influenced by medical negligence. This could be seen as unfairly placing the entire blame on the initial aggressor(defendant). In this case, the doctors believed that if proper medical treatment had been provided to the deceased, the chances of his survival were as high as 75%. If the medical evidence is believed, the original wound might not have been inherently fatal.
However, the timing and nature of the medical mistreatment created uncertainty about the wound’s potential lethality and effectively ensured that the initial injury remained a contributing factor to the victim’s death.[18] The ruling appears to minimize the significance of the medical staff’s critical errors. By essentially ignoring the substantial medical mistakes that contributed to the death, the judgment potentially reduces medical professionals’ accountability.
In the case of R v Jordan,[19] the defendant stabbed the victim with a knife over some issue that arose between the two, soon after that the victim was admitted to the hospital where his wounds had healed and to prevent him from infection the doctors administered him Terramycin to which the victim was intolerant at the same time the dose of the antibiotic administered to the victim was substantially more than the normal dose which ultimately led to the death of the victim. The court quashed the conviction of the defendant because the negligent medical treatment that led to the death of the victim was the proximate cause at the time of the death and the wounds inflicted by the defendant at the time of the death were almost healed so it was no more the operating cause.
Technically the case of Jordan should have been the precedent for the courts to follow but in Smith’s case, the court deviated from the principle that the case of Jordan has given rise to.[20] The court’s assessment suggested that the medical treatment was considered appropriate given in the context of Smith’s case. Still, this case stands out because it involved medical circumstances and situational pressures that deviated from typical expectations, unlike the Jordan case which appeared more standard.
Similarly in the case of R v Evans and Gardiner,[21] the deceased was stabbed by the applicants however after undergoing an operation the victim resumed a normal life but nearly a year later, after suffering from abdominal pain and further undergoing medical treatment he died. The cause of the death was a stricture of the small bowel, which the doctors during the operation where ought to have diagnosed which they negligently could not do which led to the death of the victim. The court held that even if negligent treatment is the immediate cause of death, the responsibility of the accused is not excused unless the negligent treatment was so independent of the act and so potent in causing death that the original act was made insignificant.
Comparing the facts of Jordan and Evans and Gardiner, one can deduce that in both cases the original wound was no longer an operating cause as held in Smith’s case at the same the proximate cause of death was the medical intervention but still the court refused to apply the principle held in Jordan’s case, one can’t argue that the negligent act of doctors in not identifying the stricture was not potent to cause the death of the victim, if this reasoning is applied that doctors will be absolved from almost all the medical negligence cases. The court’s decision seemingly downplays the gravity of the medical professionals’ errors. By seemingly overlooking the critical medical missteps that played a significant role in the patient’s death, the ruling may potentially weaken the standard of accountability for healthcare providers.
- The foreseeable result principle
In determining legal responsibility for harm caused by negligence, it is crucial to examine whether the specific negligent aspect of the defendant’s actions directly led to the harm. However, this causation analysis alone is insufficient. If we simply hold a defendant responsible for all harm they could have potentially prevented through alternative actions, the standard for culpability becomes overly broad.
To address this limitation, a reasonable foreseeability test must be applied.[22] This criterion narrows the scope of legal responsibility by requiring that the harm be a reasonably predictable consequence of the defendant’s negligent conduct. Even if the defendant’s original injury is no longer directly causing the victim’s death, the defendant can still be held legally responsible if the fatal outcome was a reasonably foreseeable consequence of the initial harm inflicted.[23] In other words, if a reasonable person would have anticipated that the injury could lead to death in the manner that occurred, the defendant remains criminally liable, regardless of the specific causal pathway.
A striking example of the ‘foreseeability’ principle in the context of medical treatment is the decision of the Court of Appeal in R v Cheshire.[24] In this case, the defendant shot the victim in the thigh and stomach, resulting in the victim being hospitalized and placed in intensive care. During treatment, a tracheotomy was performed, with a tube remaining in the victim’s windpipe for approximately four weeks. As the victim’s condition improved, the tube was removed. However, this removal triggered a rare but recognized medical complication – an obstruction in the windpipe. Medical staff failed to recognize this serious condition, mistakenly attributing the victim’s breathing difficulties to anxiety. Ultimately, the victim died due to an inability to breathe, stemming from this undetected windpipe obstruction. The court of appeals convicted the defendant for the murder of the deceased. The decision of the court, in this case, seems to be arbitrary as, By the time of the victim’s death, significant time had elapsed since the original shooting. The victim’s injuries had substantially healed and were no longer life-threatening. Moreover, there appeared to be clear preliminary evidence of medical negligence. It seemed highly probable that the victim would have fully recovered had the medical staff not failed to detect the windpipe obstruction – an obstruction that, ironically, was a direct consequence of their medical intervention.[25]
If one has to follow the precedent led down in R v Smith, the wound was no longer the operating or substantial cause instead the negligent medical treatment was the cause of the fatality, yet, the court ruled against the defendant in this case. This ruling which made the defendant fully responsible for a death significantly complicated by subsequent medical interventions could be viewed as arbitrary and contrary to principles of proportionate responsibility.
- Eggshell skull rule
“The legal maxim ‘take your victim as you find him’ appeared in the case of R v Blaue”.[26] In this case, the defendant stabbed the victim, who was a Jehovah’s Witness, after which she was taken to the hospital where she refused to take a blood transfusion as it goes against her religion and thus succumbed to death due to the injury caused by the stab wounds and her refusal to take blood transfusion. The court held that the defendant had no defence to argue that the victim’s decision was unreasonable and reiterated the principle that those who use violence on others must take their victims as they find them.
However, the legal principle can be interpreted so broadly that it potentially permits a conviction even when the victim’s death is neither directly caused by the defendant’s actions nor a reasonably predictable consequence of those actions. This expansive interpretation of causation stretches the traditional boundaries of criminal liability beyond what might be considered logically or legally sound.[27]
In a hypothetical scenario, a defendant merely slaps a victim, and then, in an entirely unexpected manner—perhaps due to an underlying nervous condition or out of pure malevolence—the victim subsequently commits suicide. Under the legal principle of “taking the victim as you find him,” a court would be compelled to convict the defendant of manslaughter. Such a conviction appears excessively severe, considering that the victim’s death was neither a direct nor a foreseeable consequence of the initial assault, and the defendant likely neither intended nor anticipated such a tragic outcome.
R v Smith was used in this case, but one of the fundamental criticisms of using this case is that in cases involving medical treatment, the legal principle suggests that an accused should not benefit from poor medical care received by the victim. If the treatment is inadequate, the accused must accept the surrounding circumstances. However, if competent medical treatment is available but deliberately refused by the victim, the accused’s liability should be limited to what would have occurred had proper treatment been accepted and recovery pursued.[28] “Thus the refusal to undergo treatment should be sufficient to break the chain of causation”.[29]
Under common law, it is an accepted principle that a third party’s intervention can break the chain of causation if their actions are deemed a ‘free, deliberate, and informed’ act. The key determinant is whether their conduct was reasonably foreseeable. If foreseeable, the original defendant remains liable; if unforeseeable, the defendant is absolved of responsibility.[30]
In this case, the victim has a free choice as to whether to undergo medical treatment, even though the exercise of it may be influenced by the tenets of his particular faith. Thus, it can be said that the action of the victim was free, at the same time when she refused to accept a blood transfusion the doctors clearly stated that the refusal would certainly lead to her death but she still went ahead with it, this proves that her actions were deliberate and informed. This distinguishing factor should be sufficient to break the chain of causation.
CONCLUSION
The complexities of causation in criminal law underscore the delicate balance courts must strike between principles of justice and the unpredictable nature of human actions and medical responses. An analysis of legal tests such as the “but for” test and doctrines like novus actus interveniens and the “take your victim as you find them” rule, it becomes evident that no single test can fully capture the complexities of real-life scenarios. Cases like R v Smith and R v Blaue reveal that although the law aims consistency, it often bends to accommodate situational pressures, sometimes to the detriment of clarity and fairness.
This paper’s examination of medical interventions as complicating factors highlights the tension between holding an initial aggressor accountable and recognizing the independent culpability of third parties. As medical technologies and ethical debates evolve, so too must the law, ensuring that its principles remain equitable and reflective of contemporary standards.
Causation in criminal law is about understanding how actions lead to consequences. Courts must carefully decide when someone is legally responsible for the harm they’ve caused. They need to draw clear lines that make sense and serve justice without going too far. The goal is to create fair rules and help protect people in society.
[1] Yashwant etc v The State of Maharashtra Lind, (2018) SC 403 (India).
[2] DANEIL BANSAL, CAUSATION IN CRIMINAL LAW, (University of Birmingham 2020).
[3] BANSAL, supra note 1, at 5.
[4] SMITH AND HOGAN, CRIMINAL LAW 64 (Oxford University Press 2009).
[5] Antje du Bois-Pedain, Novus Actus and beyond: Attributing Causal Responsibility in the Criminal Courts, 80 Cambridge Law Journal, 1921-2021.
[6] Colvin, Eric, Causation in Criminal Law, 1 Bond Law Review: Iss. 2, Article 7 (1989).
[7] Daniel, supra note 2, at 20.
[8] Maybin v R, SCC 24 (2012).
[9] Andrew Summers, Common-Sense Causation in the Law, 38 Oxford J Legal Studies 793, 795 (2018).
[10] Smith and Hogan, supra note 1, at 63.
[11] Daniel Bansal, supra note 3, at 28.
[12] R v White, 2 KB 124 (1910).
[13] John E. Stannard, Medical Treatment and the Chain of Causation, 57 Journal of Criminal Law 88, 93 (1993).
[14] Smith and Hogan, supra note 2, at 63.
[15] John E. Stannard, supra note 1, at 89.
[16] John E. Stannard, supra note 2, at 89
[17] R v. Smith, 2 QB 35 (1) (1959).
[18] J. C. Wood, Two Problems in Causation, 22 The Modern Law Review 514, 516 (1959).
[19] R v. Jordan, 40 Cr.App.R. 152 (1956).
[20] J. C. Wood, supra note 1, at 518.
[21] R v. Evans and Gardiner, (No 2) VR 523 (1976).
[22] Daniel Bansal, supra note 4, at 192.
[23] John E. Stannard, supra note 3, at 91.
[24] R v. Chesire, 3 All ER 670 (1991).
[25] John E. Stannard, supra note 4, at 93.
[26] R v. Blaue, 3 All ER 446 (1975).
[27] Smith and Hogan, supra note 3, at 73.
[28] Northern Ireland Legal Quarterly 35, no. 4 386-392 (1984).
[29] Northern Ireland Legal Quarterly, supra note 1, at 391.
[30] Mark Thomas, Breaking the Chain of Causation: Reasonable Foreseeability and the ‘Exact Form’ of a Subsequent Act: R v A [2020] EWCA Crim 407; [2020] I WLR 2320, 84 Journal of Criminal Law, no. 6 626, 629 (2020).
Author: Raushani Kushwaha
Juris Centre 