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 will remain the factual and legal cause of the harm despite the vulnerability of the victim and regardless of whether the defendant was aware of the condition or not.
Let us take another example.
example
Jack pushes Andy off a 3ft high wall. In the majority of cases, this is unlikely to cause an individual significant harm. Andy, however, suffers from a thin skull and is severely injured upon falling. Jack remains liable for the injuries to Andy despite the fact that such an action would not have had such a great effect on another person, such as Jill.
There may be many circumstances that result in a victim’s heightened vulnerability, for example:
•old age;
•young age;
•brittle bones;
•haemophilia;
•thin skull, etc.
What the examples above provide us with is a decent picture of the operation of the law (see R v Hayward (1908) 21 Cox CC 692 – concerning a thyroid condition). However, such examples have been intentionally restricted to ‘physical’ vulnerabilities to allow us to question the extent to which the principle operates. As a result of the decision in R v Blaue
