resulted in the taxi being propelled into the fast lane leaving it broadside to the oncoming traffic. A car in the fast lane collided with the taxi, killing both the driver of the car and the taxi. The issue for the jury was:
•Who was responsible for the death of the driver of the car?
•Who was responsible for the death of the taxi driver?
The jury found no difficulty in concluding that the defendant had caused the death of the driver of the car, through his dangerous driving that propelled the taxi into the fast lane. However, the jury could not be sure that the defendant was responsible for the death of the taxi driver, given that there was a subsequent act (ie the act of the driver of the car) which caused the fatal accident. The appeal itself is not relevant for our purposes. Rather, it was the conclusion of the Court in reviewing the existing area of law. In particular, the Court departed from the ‘free, deliberate and informed’ test noted above on the basis that (per Hooper LJ)
offences of causing death by dangerous and careless driving will punish the conduct of a person who has not intended or necessarily foreseen the consequences of his driving. Such a person is in a very different position to a person who has intended to kill or cause serious bodily harm or who has the mens rea for manslaughter.
Hooper LJ would go on to state what he believed the appropriate direction to the jury could be:
We suggest that a jury could be told, in circumstances like the present where the immediate cause of death is a second collision, that if they were sure that the defendant drove dangerously and were sure that his dangerous driving was more than a slight or trifling link to the death(s) then:
the defendant will have caused the death(s) only if you are sure that it could sensibly have been anticipated that a fatal collision might occur in the circumstances in which the second collision did occur.
The judge should identify the relevant circumstances and remind the jury of the prosecution and defence cases. If it is thought necessary it could be made clear to the jury that they are not concerned with what the defendant foresaw. (emphasis added)
Girdler is therefore authority for two propositions: (a) the test is one of reasonable foreseeability; and (b) the subsequent act need not be ‘free, deliberate and uninformed’ to break the chain of causation; it may be an accidental or unintended intervention that breaks the chain (so long as it was not reasonably foreseeable).
A question that naturally leads on from Girdler, however, is this: What must be reasonably foreseen? This was the issue in the recent case of R v A [2020] EWCA Crim 407. In summary, the defendant had parked her car on the hard shoulder of a motorway for no legitimate purpose. The car displayed no hazard lights, or any other car lights. A lorry driven by the second defendant, who had fallen asleep behind the wheel, traversed from the outside lane of the motorway to the hard shoulder and collided with the defendant’s car, killing one of the passengers.
At trial, the judge ruled that in order for the chain to be maintained, the defendant must have reasonably foreseen the particular subsequent act that could have followed (ie that a lorry would have travelled across numerous lanes of the motorway and collided with the defendant’s car). The trial judge reached this conclusion on account that, in Girdler, Hooper LJ used the phrase ‘in the circumstances in which the second collision did occur’. As such circumstances were not reasonably foreseen, the charge was withdrawn from the jury and the defendant acquitted. The prosecution successfully appealed to the Court of Appeal on the basis that the trial judge erred in his reading of Girdler. The Court of Appeal agreed, with Simon LJ ruling that:
What had to be sensibly anticipated was that another vehicle might leave the carriageway and collide with the respondent’s parked car. It would not be necessary for the jury to be sure that the particular circumstances of the collision or ‘the exact form’ of the subsequent act was reasonably foreseeable.
It follows that, in our view, the Judge adopted too confined an interpretation of the Girdler formulation, and as a consequence he erred in his conclusion that there was no case to answer.
If a driver leaves a car, on the hard shoulder of a motorway for 15 minutes at 4.30 am on a November morning, without displaying any lights, a jury could properly conclude that some form of collision could occur, and that, if it were occupied, death or serious injury could be caused. (emphasis added)
Following R v A, therefore, the precise details or ‘exact form’ of the subsequent third party action need not be reasonably foreseeable; it is merely the case that some sort of third party intervention would be foreseeable. See also R v Wallace (Berlinah) [2018] EWCA Crim 690 and the Canadian authority of R v Maybin [2012] 2 SCR 30 (both of which were relied upon by Simon LJ).
(ii) Medical intervention cases
Foreseeably, as you can expect, a victim who has suffered at the hands of the defendant is likely to require medical assistance. What may also be foreseeable, however, is that such assistance may be negligently given with potential misdiagnosis, poorly executed procedure or maltreatment. It can be made clear at the start that a failure to provide proper treatment for an initial injury seldom amounts to an independent cause of death or injury. Indeed, Beldam LJ in R v Cheshire [1991] 3 All ER 670 said that it is only in
the most extraordinary and unusual case that such treatment can be said to be so independent of the acts of the accused that it could be regarded in law as a cause of the victim’s death to the exclusion of the accused’s acts. (emphasis added)
According to the editors of Blackstone’s Criminal Practice (OUP, 2020), ‘it is far more likely that such failure will merely aggravate the original injury, or that it will allow the original injury to take its natural course’.
Despite this clear statement, it remains essential to observe how the law in this area has developed and apply that to the test of ‘operating and substantial’ cause. We begin our discussion with a consideration of the case of R v Jordan (1956) 40 Cr App R 152.
case example
Charge: Murder
Case progression: Crown Court – Guilty
Court of Criminal Appeal – Conviction quashed
Point of law: Medical treatment breaking the chain of causation
In R v Jordan (1956) 40 Cr App R 152, the defendant stabbed the victim who was taken to hospital. During treatment at the hospital, the doctor administered a drug to which the victim was allergic. The victim died as a result of an allergic reaction to the drug. In the Crown Court, the defendant was convicted; however, on appeal, the Court of Criminal Appeal quashed his conviction, ruling that the doctor had broken the chain of causation.Two key submissions were presented on appeal:
• The original wound had largely healed at the time of death.
• The doctor should have known that the victim was intolerant to the drug.
The Court ruled that the doctor’s treatment was ‘palpably wrong’ and thus broke the chain of causation as the defendant was no longer the ‘substantial and operative’ cause of death.
The decision of Jordan has been significantly narrowed by the subsequent decisions in R v Smith [1959]
