Topic 4 - Notes on causation PDF

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Notes on causation...

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Topic 4 Causation  3rd element of liability  Last of the physical elements Introduction  Assume X has acted with conduct and unlawfulness  Did X’s conduct and unlawfulness result in  Is there a causal nexus between the two  Example 1:  X attacks V, with intention to rape her, she runs away and a bus hits her?  Did X’s conduct result in V’s death?  Example 2:  X pushes V of a roof of a 10 storey building, Y is in the room on the 3 rd floor, Y shots V and V is dead before hitting the ground. Whose conduct caused V’s death  Often the accused will use a defence as the above that he was not responsible for the death. Definition  In a consequence crime, there is a causal nexus between the unlawful conduct and the unlawful result if the unlawful result if the unlawful conduct is both the factual cause and the legal cause of the unlawful result  3 aspects  Consequence crime  Factual cause  Legal cause Consequence Crime  Distinguish between the two crimes  Conduct crime  Circumstance crime  Formally defined crime  Consequence crime different  Results crimes materially defined crime Names

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Conduct Crime  Crime in which conduct matters most  What X does  Consequences of conduct does not really matter  Crime is in the conduct Consequence Crime  Crime is not in the conduct

 Focus on the consequences/result of the conduct  Crime is in the consequence Classic Conduct Crime  Rape  Non consensual sexual penetration  In law consequence in rape is not important, but the liability of accused rests on the conduct Classic Consequence Crime  Murder  Intentional killing of a human being  Result of conduct = death  How you kill is not important, what is important is that the crime lead to death Golden Rule:  Causation is an element of a consequence crime  causation is never an element of conduct crimes  Why is this rule valid?  Is true as it is about the nexus  Is the causal nexus between the conduct and the results  Results only matter for consequence crimes  Concerned with consequence  Example: Rape  Did conduct cause result?  Did X’s conduct cause rape?  Conduct is the rape  Example: Murder  Did conduct cause death?  Make sense Factual and Legal Causation  Causal nexus only if the conduct caused factual and legal causation  Factual Causation  On the fact  Gives causal nexus on facts  Legal Causation  Law  Causal nexus in law  Both required then there is causal nexus  If either one is absent then there is not causal nexus Test for Factual Causation

 How do we know it must be Factual Causation  How does one test for Factual Causation?  Test:  BUT-FOR TEST  Most people put this in the question  But for X’s conduct would V ……..  1) Conditio sine qua non test  2) condition cum qua non test Use depending on the conduct  2 kinds of conduct  Positive  Negative  Conditio sine qua non test (CSQN)  Tests for positive conduct  Commission  How?  Process  Hypothetical elimination  If you apply the example of X stabs V  Hypothetical elimination  Assume X did not stab V  Does the unlawful result also disappear  YES  Conclude conduct was factual causation  Conduct is requ ired  No ra1esult without conduct  NO  condition cum qua non test (CCQN)  Tests for negative conduct  Is omission  Hypothetical Addition  X is a lifeguard and does not save a life  You think in terms of X’s omission  X did act  If X did act does unlawful result disappear?  YES  X’s omission was the factual cause of that result  NO  V would have died even if X saved him BUT FOR TEST

CSQN

CCQN

 Makali 1950  Makali attacked V with a knife and slit V’s wrist  V lost a lot of blood from the knife attack  V had to go to hospital  In hospital V complained of chest pains  Later on went on to die from a heart attack  The knife attack was the Factual cause of V’s death  Court applied the CSQN  Take away knife attack doe death go with it  Knife attack was CSQN  Without knife attack there would be no death  Minister of Police v Skosana 1977  Skosana arrested for driving under the influence and caused an accident  Police arrested him and put him in a cell  He complained of serve abdominal pains  The police ignored it for a while  Later on went to realise that it was serious  In hospital he went for surgery and something went wrong and the operation was unsuccessful and he died  Mrs. Skosana sued for damages in delict on behaviour  Omission of the police  Failure of them to take him to the hospital quickly is what caused his death  Court applied CCQN  Assume the police did take him to the hospital sooner does the death disappear = Yes  Would not have died if the police took him to hospital sooner  Their omission was required for Mr. Skosana’s death  CSQN AND CCQN does not equal two different tests  Both of them is about factual causation  These two tests are differlent versions of the same test Ambit of Factual Causation/Scope of Factual Causation  Very often you find more than one factual causation  Can identify many factual causes for same result  X shoots V to death with A’s gun, C manufactured gun  Sometimes called Adam and eve ambit  There must be some way of limiting scope of factual causation to make it more manageable  That is where legal causation comes in Legal Causation  Legal causation limits the wide scope of Factual causation  Legal causation allows us to ignore factual causation that is legally irrelevant  Focus on factual causation that matters = Legal Causation  If no legal causation  Net of liability will be wide

 Therefore there will be remote connection  Factual causation you are liable but not for legal causation means that you are not liable Testing for Legal Causation  A factual cause is a legal cause  Test of public policy  Reasonable just and fair  Legal causation decides against the policy  Vague open concept  Mokgheti  Confirmed this  Legal causation is about public policy  Only test we have  Only test that has been approved  How does this work in practice  2 methods

Novus actus

Adequate cause

Novus Actus  Novus (new) actus (act) inteveniens (intervening)  New intervening act  What is novus actus?  Something abnormal/surprising and radical  Breaks chain of causation  Lungile 1999 (605j)  Defines the Novus Actus  Result anticipated does not happen if something else does not happen  What has novus actus have to do with legal causation?  Factual causation is not legal causation if novus actus has occurred  Presence of novus actus  absence of legal causation  Breaks chain of causation  X’s factual causation is not legal causation , if novus actus is present  Novus actus negative method/approach to legal causation  If you have novus actus does not equal legal causation  Causal nexus is broken  How do you recognise a novus actus?  Criteria of Abnormality  Concerned with what is abnormal  YOU  General human

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Experience as to what is normal or not Life experience will help decide whether it is normal or not

Adequate cause approach  Good enough/acceptable/satisfactory/sufficient  Adequate causal nexus  Factual cause is not also legal cause if there is a adequate causal nexus between X’s conduct and unlawful result  Presence of adequate cause  indicates presence of legal causation  How do you decide what is adequate?  Same as novus actus  Criterion of adequate cause  General human experience  What is normal?  Concerned with what is normal  Snyman pg 85  Novus actus is negative  Absence of legal causation  Abnormal  Adequate cause is positive  Presence of legal causation  Normal  Opposite side of a coin Relationship between Public Policy, Novus Actus and Adequate Cause  Fundamental test of legal causation equal public policy  Two methods  Novus actus  Adequate cause  How do they relate?  Answer  two methods are supposed to be instruments of public policy  assist to help with application of public policy  available to court for the court to make a decision when dealing with legal causation  court may use either method  whichever method it must give  reasonable, just and fair result  point is that public policy must be applied  if neither can produce a result, they might be ignored and something else may be used  there is not MUST that they need to be used  if both inappropriate  ignore both

Case Law  Mbambo 1965  Novus actus method  2 people attacked V they did so separately  X did first with stones  V got hit in the head had suffered serious injuries  Y came along and stabbed V  V died  Y was guilty of murder  Issue was whether X could also be liable for V’s death?  No the knife attack was a novus actus  Broke chain of events with the attack of the stones  X was found guilty of assault GBH  Lungile 1999  Gang of robbers  They went to rob a shop one day  They had a gun  Armed robbery  Police arrived at the shop and a gun battle took place between the two  None of the shooters were killed only injured  An innocent women was killed in the crossfire  They were charged with murder  His conduct was no the legal cause  The issue was whether the shooting from the police was a novus actus that broke the chain of events  This defence could be raised as there was uncertainty who had killed the woman  It was most likely the police  The court gave them the benefit of the doubt  Let’s say the policeman shot and killed her  But no novus actus  As it was a gun battle of a armed robbery and this is not unexpected this kind of effect  Hence the shooting of the police was a novus actus  Robber was liable for her murder  Loubser 1953  Adequate cause  Hit V with a kirry over the head  The blow caused a deep gash  V got told to go to the hospital  V did not go  He lived on the farm and V was uneducated  He put a bandage over his head but the bandage was dirty  2 weeks later he died from tetanus  Loubser was charged with culpable homicide

 Court used the adequate cause approach  And said it was normal to expect V not to go to the hospital in the light of human experience  It was expected  Yes, normal for a person like V in a rural area to fix the problem themselves  There was an adequate causal nexus Loubser did cause death  And was guilty of culpable homicide  Daniels 1985  5 judges 5 judgements  There was 2 accused  X and Y, victim was a taxi driver  They were planning to rob the taxi driver, this happened on an isolated road  The taxi driver realised something was wrong  They got into an argument cause the taxi driver saw the gun and he ran  X shot him twice while he running  Shots were factual the taxi driver was going to die if he did not get to the hospital in time to receive help  Before he died Y had a gun and shot the taxi driver in the head  Taxi driver died instantly from brain damage  Both were charged with murder  Y was no problem  X did eh cause the death  Y’s shot was that a novus actus did that break the chain of events  Judges  1)Nicholas AJA  2) Botha JA  Didn’t deal with the problem of causation  Used the doctrine of common purpose  Allows the court to convict any person who had the same idea  Both X and Y had common purpose and were both liable  3) Van Winsen AJA  4) Janse JA  NO unlike Mbambo shot to head did not break chain in events  Fake novus actus as it does not agree with public policy  Shots to the back made V a sitting duck for Y  Sitting duck = easy and helpless person  X had made V a sitting duck for Y  According to public policy  Reasonable just and fair  Even though it looked like a novus actus it is not  X and Y were both found guilty of murdering V  Both judges did not use any method  But used public policy  5)Tengrove JA  Accepted X’s argument that it did break the chain of events

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Therefore X did not cause death X should not be guilty of murder but rather attempted murder

Special Aspects of Legal Causation  Special rules and occasions developed over time  Accepted as representing public policy  Give results that are reasonable just and fair  3 Areas  A) thin skull rule  B) encouragement of suicide ONLY Legal Causation  C) Medical treatment A) Thin Skull Rule  Talem Qualem Rule  Rule that applies to people with abnormal physiological conditions  Name comes from people with thin skulls  Easily injured or killed that should have no impact on us  They are very vulnerable by conduct that is harmless to the rest of us  X says BOO and someone dies?  Can you be held liable?  Are you the cause of death?  Is this condition of a novus actus?  Does it break the chain of events?  X would argue this and thin skull rule is a novus actus  Defence will not succeed due to the thin skull rule  Dictum: Take your victim as you find them  Cannot rely on ignorance  Yes no knowledge in fact  Deemed to have prior knowledge in law  The law will not accept this  You do cause death  Different if you are found liable  Fact caused death  Other element that will escape liability (mens Rae)  Did not have intention to kill Du Plessis  Driving car with elderly father as a passenger  Du plessis was driving negligently  Father was injured  4 ribs were broken  Could not cough up phlegm  Due to his ribs pressurising his lungs  He contacted pneumonia and died

 Father was old and his constitution was weak  Question: Du plessis caused death by driving negligently  Made him vulnerable  Pre existing condition was novus actus  Did he cause death?  Possibility was rejected  Father pre-existing condition  He should have taken his father as he found him  Son was charged with culpable homicide  He had caused father death Mckechnie 1992 (English Case)      

B) 

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Hit victim over the head with a TV set V suffered server head injuries V suffered from an ulcer (duodenal ulcer) V serious head injuries the doctors were not able to operate on the ulcer  The ulcer burst and he died Mckenchnie was charged with manslaughter Was ulcer a novus actus between the death?  Court applied the thin skull rule  Take your victim as you find him Encouragement of Suicide Is suicide a crime?  Used to be a crime until the 1950’s  It no longer is Encouragement of suicide  V is suicidal and wants to die, X knows V is suicidal X says do it and gives V a rope  Provides V with material  Did X cause V’s death or is the final act by V a break in the chain of events?  For a long time our courts were unsure- pre 1970 as there was no case law

Grotjohn 1970      

Reached the appellant division Mr and Mrs. Grotjohn Wife was physically handicapped And was depressed Mr. Grotjohn gave his wife a gun and she shot herself She shot herself with the gun that was provided by Mr. Grotjohn  Trial said NO  Minister of justice saw this as an opportunity to use case to settle the law  S333 allows the minister of justice pose legal question to appellant division the court lays down law  2 questions  Is encouraging/assisting suicide a crime?

 If yes which crime?  Judgment  Unanimous  If you encourage and assist you are committing a crime  Final act of V is not a novus actus  X’s conduct = legal causation  Cannot rely on that as a novus actus  Which Crime?  3 possible crimes  Murder = intended person to die and does die  Attempted murder = intended person to die and survives  Culpable homicide = negligently intended for person to die  As the death was reasonably foreseeable and reasonable person would have foreseen death Hibbert  Facts very similar to Grotjohn  Court applied Grotjohn  Found guilty for encouragement of suicide and supplying means  Found guilty of murder Criminal Law 02/03/11 Medical Treatment  2 categories  Conduct Of Medical staff  Conduct of victim  Conduct of Medical staff  X attacks V, some later point, V dies  Between X and death of V  V receives medical care  X is charged, with death of the victim  defence is Medical Treatment which is a novus actus  as it broke the chain of events  Begin  Nature of the Medical intervention  Bona fide  proper  in good faith  Mala Fide  improper Bona Fide  V gets bona fide treatment  not considered by our courts as a novus actus

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the Dr. might have given wrong medication  did so without knowing  as long as they acted in good faith  the it is not considered a novus actus  Wounds  made by X  fatal will die  non-fatal will survive  Fatal Wounds  Bona Fide medical treatment does not amount to a novus actus  means V was going to die anyway  X cannot rely on medical treatment as a defence  Non-Fatal Wounds  V would survive given correct medical treatment  given medication but was the wrong Treatment  done in Bona fide  considered that Dr. did cause the death  however, X cannot rely on this defence  technical terms = X and the Dr. caused death  X cannot rely on bona fide of the Doctors as a defence Mala Fide  treatment given by the Dr. in bad faith  can be considered a novus actus  Dr. is doing this deliberately  mistake is not Bona Fide  there was intention to harm  We must distinguish between Fatal and Non-Fatal Wounds  V was going to die anyway  Mala fide just hastens the death  2 causes  Doctor  X  Both of them will be charged  as the intervention in Mala fide  only reason V dies due Dr. deliberately gave wrong treatment  X will be able to use as defence  X will liable for assault GBH or attempted murder Cases Williams  Williams shot women in the neck  Wound was fatal  Did not die as she was on an artificial respirator

 Dr. decided that she was not going to live and turned off the respirator and she died  Williams said that there was causal nexus between the shot and her death  By turning the respirator off was the cause of her death  Court held  The turning off was done in good faith  Wounds were fatal  Dr, Turing off was stopping a hapless attempt of keeping the women alive  Postponed the natural consequences of her death  Williams was found guilty of murder Counter  Had a wife and he wanted her dead  Shot her in the buttocks as she was running away  Bullet penetrated into her anal canal  Wounds were not fatal  if she received proper treatment she would survive  in the hospital something went wrong  the staff did not realise how bad it was  as she did have any of the symptoms  when they did realise a week later  she had contracted pneumonia  counter argued that the shot that he fired was no the legal cause of his wife’s death  it was the hospitals failure to realise wife’s injuries  the hospitals negligence caused her death  court held  no as the hospital acted bona fide  countered said the=at the hospital progressed surreptiously (secretly)  by the time the hospital did discover it was far too late  counter could not rely on it as a novus actus  Hospital did not do intentionally do something wrong  See paragraph 153j in the case Ramosunyak  Had a fight with his girlfriend  She left and went back to her mothers house  Ramosunya followed her and fought with her at her mother house  The mother got involved  He stabbed the mother  Her wounds were not fatal if she was treated properly  At the hospital they treated her and sent her home after a week  The next day she collapsed and died  She died from sepsis of the lungs  Ramosunya raised the defence that there was causal nexus between the stabbing and her death  No-one knew why the mother developed the condition

 Court held  Hospital possibility did something wrong  Hospitals negligence in treating the mother  Reasonable doubt that Ramosunya caused her death  State was unable to prove causation beyond a reasonable doubt  Ramosunya was found not guilty of murder  But found gouty of attempted murder Tembani  Supreme Court of Appeal Decision  Tembani shot her girlfriend in the chest  Wound was not fatal if treated properly  Taken to hospital to receive medical treatment  She did not receive proper medical treatment  Hospital was negligent with her treatme...