Case progression: Crown Court – Guilty
Court of Appeal – Conviction upheld
Point of law: Whether an Act of God will break the chain of causation
In R v Gowans [2003] EWCA Crim 3935, the victim was placed in a coma after being attacked by the defendant. Whilst in a coma, the victim contracted septicaemia (blood poisoning) and died. The defendant was convicted of murder and his conviction was upheld on appeal.
Kay LJ in the Court of Appeal ruled that the defendant had put the victim in a state vulnerable to any infections. The defendant, therefore, was the legal (operating and substantial) cause of the death.
Gowans is an interesting authority on the point of an ‘act of God’. The naturally occurring event was the risk of infection given that we are all at risk of infection at any point in our lives; it cannot be controlled. The defendant remained responsible for the death of the victim because the victim was placed in a situation where infection was much more likely and probable. This therefore meant that the ‘act of God’ was not unforeseeable but, rather, was a probable outcome of the defendant’s actions. As it was foreseeable, it was incapable of breaking the chain of causation.
case example
Charge: Murder
Case progression: South Australian Full Court – Guilty
Point of law: Whether an act of God will break the chain of causation where it arose as a natural consequence of the defendant’s actions
In The Queen v Hallett [1969] SASR 141 (Australia), the victim, whilst drinking on a beach at night, had allegedly made a homosexual advance to the defendant. The defendant attacked the victim and left him unconscious on the beach. The tide came in and the victim drowned. The defendant’s actions of knocking the man unconscious on the beach remained the substantial and operating cause of death.
What these two examples show is that the chain of causation is rarely broken by a naturally occurring event. As above, the natural act was not ‘so powerful’ to rid the defendant of liability.
In Gowans, the victim could not have acquired the serious infection without being first placed in a coma as a result of the defendant’s actions. The defendant was blameable, therefore, for the death. Likewise, in Hallett, the defendant left the victim on the beach when the tide was low. The foreseeability that he may be drowned by the incoming tide was high, and thus the defendant was liable. In both cases, the result was a ‘natural’ consequence of the defendant’s conduct. Thus the chain of causation was not broken.
You may ask, therefore, when an act of God will break the chain of causation. In Empress Car Co (Abertillery) Ltd v National Rivers Authority [1999] 2 AC 22, Lord Hoffmann explained that if an Act of God was ‘abnormal and extraordinary’, the chain of causation may be broken. In addition, an American academic named Perkins (‘The Law of Homicide’ (1946) 36 J Cr L & Cr) provides a rather useful example:
[I]f one man knocks down another and goes away leaving his victim not seriously hurt but unconscious, on the floor of a building in which the assault occurred, and before the victim recovers consciousness he is killed in the fall of the building which is shaken down by a sudden earthquake, this is not homicide. The law attributes such a death to the ‘Act of God’ and not to the assault, even if it may be certain that the deceased would not have been in the building at the time of the earthquake, had he not been rendered unconscious. The blow was the occasion of the man’s being there, but the blow was not the cause of the earthquake, nor was the deceased left in a position of obvious danger. On the other hand if the blow had been struck on the seashore, and the assailant had left his victim in imminent peril of an incoming tide which drowned him before consciousness returned, it would be homicide.
Another example may be where the defendant attacks the victim but leaves him in a ‘safe place’. Whilst unconscious, the victim is struck by lightning. In both examples, the lightning strike and the earthquake are unforeseen and unforeseeable and will thus break the chain of causation.
in practice
Although the chain of causation is broken in relation to the ‘end result’, ie death, the defendant remains liable for the initial act and result, ie the initial injury. Therefore, when answering a problem question, you can discount a potential offence of murder against the defendant but you may still consider his liability for a non-fatal offence.
2.7.3.5Summary of intervening acts
This section has included a lot of information and various different tests to apply dependent on the situation. The following figure is aimed at concentrating your understanding of the principles of novus actus interveniens.
Figure 2.8Understanding intervening acts
2.7.4Applying causation
Consider the following example and decide whether the tests for causation are met. Use Figure 2.8 (above) to assist you.
example
Jack stabs Jill in the leg. Whilst being transported to the hospital in an ambulance, Andy drives his truck into the side of the ambulance, killing Jill on impact. Evidence shows that Jill would not have died simply from the stab wound.
Jack most certainly is a factual cause of harm given that Jill would not have required medical attention ‘but for’ Jack’s actions. Jack may also be considered the legal cause of harm as his actions are both substantial and blameworthy. However, the likely outcome is that Andy has broken the chain of causation through his actions, thus becoming the ‘operative’ cause of death. Jack, however, may still be liable for the original assault.
2.8Thin skull rule
The defendant must ‘take his victim as he finds him’. Also known as the ‘egg-shell skull rule’, these words have long been established as a key principle in the criminal law of England and Wales.
Most textbooks include their discussion of the thin skull rule within a section on ‘acts of the victim’ which break the chain of causation. Indeed, this makes a lot of sense as the question becomes whether the susceptibility of the victim is an act on their part which can break the chain of causation. For instance, Colvin (Principles of Criminal Law, 2nd edn (Carswell, 1991)) argues that there is no need for a ‘special’ rule because in all cases where the thin skull rule is used, applying the ‘operating and substantial cause’ test would produce the same result. It is felt, however, that given the novel area of law concerned and the fact that in many cases the ‘thin skull’ is not as a result of an act of the victim, but rather is an integral part of the victim, this area is best placed within its own section.
In general, the principle is concerned with the effect a defendant’s act has on the victim in question.
example
Jill gives Jack a paper cut as a joke. Ordinarily, a paper cut would be of no threat to an individual. Although it may cause some discomfort, there is no likelihood of real harm or injury to the individual.
However, suppose Jill does the same thing to Andy who suffers from haemophilia (a condition where the blood does not clot). As a result of his condition, Andy is likely to suffer greater harm than an individual without such a condition. This condition, or ‘susceptibility’ as it is referred to in practice, is irrelevant to the liability of the defendant, as he must take his victim as he finds him. This means that the defendant