LEGAL CAUSATION AND ACT OF VICTIM AS INTERVENTION

THIS ARTICLE WAS WRITTEN BY MONALISA SARKAR, A STUDENT OF WBNUJS.

Introduction

The act of legal causation can be very precisely linked with moral responsibility of the defendant, which also requires the defendant’s act to be consequential for the victim’s loss[1]. When the law comes into operation to decide as to who is responsible for the desired consequences, it is essential to access the viable and appreciable aspect of the law, both terms being equally resilient[2]. While dealing with the various aspects of legal causation and the act of Victim as intervention, we will come across a term called novus actus intervenines, whose literal and practical interpretation plays an important role is assessing the extent of liability in case of intervening acts. But merely any act on the Victim’s part cannot be considered to act as an intervention. This primarily depends on the way the victim acted and the prevailing circumstances at the time of commission of the wrongful act.

Through this paper, I will be deducing the various aspects associate with the nature of intervening act, the nature of act of the victim, the influence of any other factor in bringing out the outcome and also the extent of liability that can be rightfully imposed on the wrongdoer.

Research Issues

The most illustrious questions dealt by this topic comprises of certain specific issues which act as determining factor with regards to intervention in criminal acts, viz.,

• The scope of novus actus intervenines and the nature of secondary or collateral act it is dealing with.
• Victim’s own negligent act which adds to the output.
• Nature of Victim viz., Egg-shell rule
• Nature of act of Victim (The Daftness Test).

The Law

While dealing with novus actus in the context of legal causation – approach, veracity, and justification have to be scrutinized to determine whether the chain of causation remains unimpaired or not. Only those acts which are beyond being inconsequential can only acts as interventions. Criminal law follows the principal that the wrongdoer must take the victim as he is and thus gives no exemption as to the extent of liability. Exemption can only be granted with respect to the Victim’s act only when the Victim has acted in an exceptionally unnatural way than what is expected of a reasonable man.

Literature Review and Discussion

“Causation is not a single, unvarying concept to be mechanically applied without regard to the context in which the question arises[3].” Although victim’s contributory negligence will not be taken into consideration unless it can be proved that in order to prevent Defendant’s act amounting to a considerable cause, the act of the victim was necessary[4]. e.g., Victim who was walking on the highway was run over by the defendant. The victim being deaf did not affect the Defendant’s negligent behaviour while over speeding[5].

Discrete consequence brought about by the intervention of an individual natural affair which otherwise could have been avoided but for the Defendant’s act, will not render the attribution of consequences ineffective if the event in question could have been reasonably foreseeable in habitual occurrence of everyday things, which means, the outcome has to be the natural consequence brought about by the Defendant’s own act[6]. From the above discussion it can be deduced that, where the specific outcome in question naturally flows from the Defendant’s conduct despite the intervention of an unforeseeable occurrence, he will be held responsible irrespective, e.g., where the Defendant conspired to kill the Victim by throwing a bomb at him and in the course of doing this instead misses his aim and the bomb drops on a gas cylinder which in turn leads into explosion which in turn kills the victim, the defendant will be nonetheless be held responsible[7]. If in the course of the commission of the act by the defendant, there had been an intervention by the victim or a third party, it gives rise to certain principle associated with different kinds of intervening acts viz.,

• Where treatment has been denied by the victim himself, or he harms himself further.
• Where the victims inflicts injury on himself or end up killing himself in an attempt to escape.
• Where victim’s further health deterrence or death is brought about by some effect of the intervening medical treatment[8].

Where the Defendant’s act is the immediate result of his conduct, despite any intervening act, he will be held responsible even though the intervening act was brought about by the Victim himself.

The intervention by a second party which was of independent, conscious and calculated nature with the intention of exploiting the situation existing at that point brought about by the defendant’s act, but at the same time nor in concord with the defendant’s act, usually gives rise to an intervention of such a nature capable of breaking the chain of causation, thus relieving the initial offender of criminal liability[9]. The Defendant’s chain of causation also gets broken if the Victim’s intervening act immediately brings out the consequence and the act is again of independent and conscious nature. However the act of victim will not be considered to be free is it was brought about by coercion or in exercising self-defence.  It will not be considered to be deliberate if the act of victim was under a panic attack, and will not be considered to be informed if the intervening state at that point was not fully discerned by the victim[10].

The intervening act which breaks the chain of causation between the initial malefactor and the liability of the consequence is called novus actus intervenines. The requirement for this comprises of a secondary act which could not have been reasonably foreseeable. If the secondary act could have been anticipated then the defendant cannot take this defence in limiting his liability.

The scope of novus actus cannot be delimited by either factual or legal causation and is subjected to interruption. Therefore, actus novus leads to the disruption of the causal act and “the subjective test of legal causation cannot be fulfils,

Being an independent act, novus actus can be brought about by any individual other than the primary accused. This could also be inclusive of the victim himself, any other third party or act of God e.g., an injured patient who has undergone a surgery walks on a slippery floor, thus falling and inflicting more injury on himself will be himself responsible for the consequences, also where more damage has been caused by storm, the defendant will not be held liable for further damage[11]

In order to act as an intervention, the act of the defendant should fulfil the following criterion viz.: coherent, undeviating, contiguous and appreciable. Or it should be enough to fulfil the criterion of something being beyond inconsequential. Defendant’s cause need not be the principal cause of the outcome but nonetheless its significant contributory negligence to that extent will suffice.[12]

Where the defendant’s cause can be sufficiently ascribed to the outcome, though the intended outcome may seem questionable to a layman along with the production of contradictory adjudication brought about by a seemingly indistinct bearing, could on the contrary have avoidable nature with careful conduct[13].

While assessing the extent of the intervening act, we come across three broad principles, viz., But-for-test, Egg-shell rule and Daftness test.

On the “balance of probabilities,” the onus lies on the plaintiff to show that “but for the defendant’s negligent act” the consequence could not have been brought about. The application of this test must be made from a vigorous layman perspective[14] e.g.; in R v. White, White added poison in his mother’s milk in order to kill her, but the mother instead dies of a heart-attack. This case lays down the principal as to, whether the outcome would have been different but for the Defendant’s wrongful act[15].

Another important factor is the victim’s physical health[16]. The existence of victim’s abnormal condition at the time of commission of the offence does not diminish the effect of the defendant’s wrongful act. This is defined as the egg-shell rule. The wrongdoer will nonetheless be held liable if the state of health of the victim is aggravated to a much greater extent than expected because of a pre-existing medical condition. since this concept of based on the principal that, the defendant has to take his Victim as he is, this suffices in holding the wrongdoer fully responsible for the entire consequence[17], irrespective of the wrongdoer’s knowledge of facts about the victim[18].

The extent of general exceptions of remoteness of damage needs to be taken into consideration when assessing the damage caused by the circumstances – the inordinate nature of the ensuing event which is capable of regulating the history associated with the outcome which would otherwise be equated with an intrinsic element[19].

While assessing the nature of intervention by the victim, if the victim is a child then his negligent act will not act as intervention since he is not capable of forming mens rea. Same principle will be applicable in certain other specific situations e.g., for a factory worker whose “senses have been dulled by routine act[20].” Otherwise, if the act of the victim flows spontaneously from the act of the wrongdoer, then it will not act as an intervention[21], also if the person concerned is acting in the exercise of his private defence without forming any mens rea to injure others, then that act will also not qualify for intervention[22].

The plaintiff is also expected to act in a way which reduces damages, therefore any act on his part done without keeping this view in mind will amount to breaking the chain of causation[23]. Although, if in the course of action the victim’s injury is further exaggerated because of his own negligent behaviour, then he is entitled to be compensated only to the extent which was prior to his conduct[24].

Generally under Tort law, refusal of treatment by the victim in some cases may be unreasonable, in those situations, damages should be assessed considering as if the victim had actually undergone the treatment[25]. However, criminal in this respect bases its foundation on the statement that, the “wrongdoer must take the victim as he finds him,” thus debarring him from taking the defence that the victim’s refusal to take medical treatment was unreasonable[26]. This enables certain victims such as haemophiliac or extreme neurotic, who are caused more injury than an ordinary man to claim the full extent of damage despite the unforeseeable nature of the act[27]. The concept of contributory negligence also no longer provides absolute immunity, but rather diminishes the amount of damage claimed.[28] On the other hand, if the plaintiff had acted with full knowledge and freely consented to the act, then it renders absolute immunity to the defendant.

Where the defence is being claimed, the position of the victim also needs to be taken into consideration e.g., where a person walking along a highway is accidentally hit by a golf ball streak, the nature of the victim has to be assessed. If he is an ordinary man then he can claim full compensation but if that person is a golfer then he cannot claim the same damage[29]. Also, if the act of the victim was so daft or unanticipated for any reasonable man to foresee, the act of the victim will act as intervention[30] e.g., without any act on the defendant’s part, if the victim had acted in a way by apprehending fear which injured the victim himself, then the defendant cannot be held liable. However, this evaluation is subjective. In R v. Robert, where Robert made advances towards the lady to whom he had offered a lift, the lady apprehending sexual assault, jumped out the car. It was held that, the lady did not act in a daft way and the injury naturally flowed from Robert’s act and therefore he was liable for the entire damage.

Conclusion

Through the analysis of the entire paper, it can be deduced that, if the consequences are flowing naturally from the Defendant’s act, leaving aside every other factor, nothing will be treated as an intervention. The nature of the external act leading into collateral outcomes need to be thoroughly assessed in order to attribute it to an intervening act amounting from the Victim’s own act or any other natural event for that matter. Considering the mental element of both the offender and the victim, it can be said that the deduction laid down by law cannot be questioned with respect to the pondering facts. Therefore, the legal causation has to be interpreted keeping in mind the events which were prevalent at the time of commission of the wrong and the state of the victim along with the extent of damage while evaluating intervention.

¹Causation, a level law (28^th June, 2011), http://a2levellaw.blogspot.in/2011/06/causation.html (last accessed on 30^th June, 2011, 03:05 PM).

[2] R v Jordan (1956) 40 Cr App R 152.

[3] Pilchard card, criminal law 256-57 (21^st ed. 2014).

[4] Pilchard card, criminal law 256-57 (21^st ed. 2014).

[5] Longbottom v. Mercy Hosp. Clermont, 137 Ohio St.3d 103, 2013-Ohio-4068.

[6] Hallett v. R [1969] SASR 141.

[7] Pilchard card, criminal law 256-57 (21^st ed. 2014).

[8] Pilchard card, criminal law 256-57 (21^st ed. 2014).

[9] Hart and Honore, Causation in the law, 2 Phil. Rev 326 (1985).

[10] Street on torts, John Murphy 305 (2003).

[11] Novus Actus Intervenines,Hogan Lovells (Aug. 29, 2017, 03:24 P.M.), https://www.hoganlovells.com/publications/novus-actus-interveniens.

[12] R v Pagett (1983) 76 Cr App R 279.

[13]  Dennis Baker, Glanville Williams Textbook of Criminal Law 35, 42 (2015).

[14] Duhaime’s Law Dictionary,  http://www.duhaime.org/LegalDictionary/B/ButFor.aspx .

[15] R v. White [1910] 2 KB 124.

[16]  The Despina R. [1997].

[17] Dulien v. White [101] 2 K.B. 669, 679.

[18] Robinson v. Post Office [1974] 1 W.L.R. 1176.

[19] R.V. Anderson and Morris[1966] 2 Q.B. 110,120.

[20] Sutherland v. Glasgow corp 1951 S.C. 1.

[21] Street on torts, John Murphy 305 (2003).

[22] Clayards v. Dethiks[1848] 12. Q.B. 439

[23] McKew v. Holland and Hannen and Cubilts(Scotland) Ltd [1969] 3 All E.R. 1621

[24] Jones v. Watney, Combe, Reid & Co. Ltd (19120 28 T.L.R. 399, 400

[25] Hudson “Refusal of medical treatment” (1983) 3 L.S. 50

[26] R v. Blaue [1975] 1. W.L.R.1411

[27] David G. Owen, Philosophical Foundation of Tort Law 114, 160(1995).

[28] Street on torts, John Murphy 305 (2003).

[29] Street on torts, John Murphy 305 (2003).

[30] R v Roberts [1971] EWCA Crim 4.