Principle Of Causation: A Review
By Avantika Tewari
Introduction
For an act to qualify as a criminal offence, it has to have 3 elements— mens rea, actus reus and causation. While mens rea and actus reus refer to guilty mind and guilty act respectively, causation, in criminal law, refers to the causal relationship between the actus reus of the offence and the prohibited consequence which is usually harm, damage or loss.¹ This causation is of primary importance while attaching any criminal liability to the accused in the sense that if the prohibited consequence is not caused due to the actus reus of the accused, — inspite of having the mens rea for the occurrence of the said consequence — he/she will not be held liable for that particular offence.²
The aforementioned statement would be better explained with the following example: Suppose, A, intending to murder B, places a bomb in B’s car. However, before the explosion of the said bomb, the car meets with an accident and as a result, B dies. In this case, even though A’s intention for B to die did transpire, it neither arose out of nor had any connection to A’s actus reus. Therefore, A cannot be held liable for murder but there can be charges for attempt to murder. This shows how indispensable causation is to criminal law and liability.
On that note, here, I will mainly be focusing on the doctrine of causation and subsequently, I have divided this paper into 2 sections. Firstly, I will examine the establishment of the different elements of causation in criminal law. Secondly, I will analyse the doctrine of causation in the light of the Indian Criminal Law sphere.
Establishing The Causation
It is imperative to establish causation in criminal law in order to determine the criminal liability which can be affixed to the accused. This can be done as a sequence of reasonably foreseeable or anticipated link between the first act of the accused to the final consequence as an uninterrupted chain. This type of consideration is called the “Reasonable Expectations” test. According to this, the accused will be held liable for all the consequences arising out of his act, as long as these are reasonably foreseeable.
For example, if a person A, doesn’t feed their baby for a certain time and the baby dies due to starvation, then it can be reasonably expected that the death of the baby was caused due to the omission of performing a certain act by A.³ This particular example also gives rise to omission liability as the act which was omitted, i.e. feeding the baby, would have prevented the harm. Therefore, the actus reus in this case would be the omission to provide food to the baby and A for having performed this actus reus, will be liable for the offence.⁴
The range of expectations may not always be this straightforward. It may vary according to the factual matrix of each case. This range is projected in the case R v. Le Brun.⁵ In this case, the husband landed a blow on his wife which caused her to lose consciousness. Then, while the husband tried to lift her and drag her away, his hand slipped and he lost grip of her body. This resulted in her crashing down and fracturing her skull which eventually led to her death. The husband was subsequently charged with manslaughter. The English court discussed the link between the first and the final act and observed that inspite of there being no mens rea to kill his wife, the husband’s actions were self-serving as his first act led to the second and finally to her death. The chain of causation here remains unbroken and therefore, the husband’s conviction was upheld by the court.
To that effect, the process of establishing causation is done mainly in two prongs. Firstly, establishing the ‘Factual Causation’. Secondly, establishing the ‘Legal Causation’.⁶ These two elements will be discussed in depth in this section.
Factual Causation
The general principle employed while determining factual causation is the causa sine qua non. This essentially translates to “cause-in-fact” which in colloquial terms is known as the “But-For” test. This test, which has a presence in contract and tort law, plays a significant role in criminal law as well. This inquires whether the prohibited consequence would have occurred but for the actions of the accused. There has to be an existence of causa sine qua non.⁷ This test would be better explained in the form of a practical example. Suppose A were to slit B’s throat and B dies. Here, if the “but for” test is applied, we would ask the question, “but for A’s conduct, would B have died?” The answer to this question would be negative as B would still be alive if A had not slit his throat. Therefore, we can conclude that A has caused the murder of B.
However, this particular test is not always this conclusive. It can tend to be over or under inclusive depending on the necessity of an act on the subsequent outcome. Since the cause of a consequence need not be particularly exclusive, there is a possibility that an act or omission need not sufficient in itself to cause the outcome. But as long as there is some influence/effect which is more than de minimis, liability can still be incurred.⁸
In R v. Cato⁹, the accused bought heroin and invited the deceased, Antony Farmer and others to use the same. All of them prepared their own solutions and proceeded to inject each other with the syringes. The following day, Farmer was found dead and the accused was charged with manslaughter. The court observed that there must be a “cause of substance” established but this cause need not be sufficient, as the threshold will be placed too high and the “but for” test will become under-inclusive.
Therefore, it is sufficient if the accused’s actions were a ‘but for’ cause which is more than the minimum (de minimis). The administration of heroin was a deliberate and the direct act which had contributed, more than the minimal, to Farmer’s death. Hence, the conviction was upheld.
Legal Causation
Once the factual causation has been proved and the link has been established, we may proceed to determining the existence of a valid legal causation. The question to be considered here is whether the accused’s act was the substantial and operative cause of the result. In other words, was this the real cause or the main cause of the harm?¹⁰ In this regard, we may consider one main principle, i.e., Novus Actus Interveniens.
Novus Actus Interveniens:
This legal phrase literally translates into “new act intervening” which essentially means that the chain of causation which was established when the accused started his actus reus has been broken and hence any subsequent liability cannot be imposed upon the accused. This act could be anything over which the accused has no control, like an act of nature/god, a third-party act or even the act of the victim. These acts could have occurred in consonance with the actus reus of the accused but still they have to be differentiated and their substantial impact on the victim has to be considered for affixing any liability.¹¹
While doing so, it also has to be borne in mind that not all intervening acts/factors qualify as Novus Actus Interveniens. These acts, along with not being voluntary and dependent on the part of the accused should also not be a naturally occurring and reasonably foreseeable event. If these acts break the chain of causation due to their predictable nature, then this principle will not be considered. The intervening act must be sufficient enough that it should derail the process of continuity as envisaged by the accused with having any proximity.¹²
A case which illustrates this example is R v. Michael¹³. In this case, the accused, Michael was a wet nurse who tended to a baby who was in the foster care of a wealthy family. One day, she bought some poison and put it in the baby bottle with the intention of killing the baby. She handed over this bottle to the foster-mother and said that it contained medicine for the baby as it was sick. The mother having seen the baby to be fit and fine, didn’t see the need for the medicine in the bottle and placed it on a mantle-piece. Her own 5-year-old child took the bottle and administered it to the baby and the baby died. Here, although the chain of events did break when the mother kept aside the bottle, it was not sufficient enough to invoke Novus Actus Interveniens. Along with mens rea, the actus reus of Michael’s was in close proximity with the intended consequence. Therefore, she was convicted of the murder of the child.
Causation In Indian Criminal Law
While the criminal law system in the US, the UK and Australia have their separate exclusive clauses for the doctrine of causation, there is no such provision in their Indian counterpart. Different sections of the Indian Penal Code (‘IPC’) have to be interpreted to establish the existence of this principle. An apt example is Section 299 of the IPC, which defines ‘culpable homicide’. The Explanation 2 of this Section reads as:
“Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skillful treatment the death might have been prevented.”
When the role of doctors is brought into the picture, this principle can be interpreted so as to establish the doctrine of causation. If a person, who is grossly injured, is brought to the hospital and upon the operation, he dies either due to a slight negligence by the doctor (as long as there is no gross medical negligence on the part of the doctor), or due to a lack of critical medical facilities, then the person who initiated the chain of events will still be held completely liable, as there is no break of the chain of causation, so long as this administration was done in good faith.¹⁴
This is just one example, many other provisions of the IPC can be interpreted likewise. However, the extent of the approach to causation will vary for every section. For example, the causation under Section 300 for ‘murder’ is different from the causation under Section 304A for ‘death by negligence’. Therefore, no concrete principle of causation can be determined to apply to all cases, which in turn causes certain ambiguity in establishing causation according to the IPC.¹⁵
Even the courts have gone on to differentiate between these different types of causation in a number of cases. In the case, Ranganathan v. State of Tamil Nadu¹⁶, the Madras High Court, upon a request to hold the causation for culpable homicide not amounting to murder under Section 304 in the same light as causation for death caused by negligence under Section 304A, has held that these two provisions and their underlying causation interpretation are different and therefore, the Supreme Court’s theory of causation established for negligent act under Section 304A cannot be extended to Section 304.
To that effect, in this section, I will mainly focus on the causation processes established under Section 299 and Section 300 and finally analyse the ambiguity regarding the doctrine of causation in the IPC.
Section 299 — Culpable Homicide:
The relevant part of this section, as stated above, for the concept of causation is the Explanation 2. This provision has been interpreted by the courts to establish the de minimis causation required to hold a person criminally liable for an act. This is specifically in regards to medical practitioners and doctors. As previously stated, the doctor or the hospital cannot be held liable for inadequate or negligent treatment or lack of facilities.
In such cases it cannot assuredly be said that death would not have happened if there was better administration of treatment. Although the doctor was negligent in his service, death was primarily caused due to the injury inflicted according to Section 299 and the doctor’s role, if at all any, would have minimum causation. Unless there was gross negligence or willfulness which exceeds the de minimis, the doctor cannot be criminally liable, but grounds for civil action may still be entertained.¹⁷
In the case, Rewaram v. State of Madhya Pradesh¹⁸, the deceased had sustained multiple knife injuries from her husband’s attack. She was subsequently taken to a hospital and underwent an operation. Post operation, she developed hyperpyrexia, which is a high temperature fever, and as a result she died. Upon post-mortem, the doctor opined that the death was mainly caused due to this hyperpyrexia, and not due to the injuries which she had suffered.
The Madhya Pradesh High Court on strictly interpreting Explanation 2 of Section 299, observed that the person who caused the injuries will still be liable for the death, even if the injuries didn’t directly result in the death. It said that the only reason the deceased acquired hyperpyrexia was due to the operation performed on her and this operation, in turn, was a direct consequence of injuries inflicted on her by her husband. Therefore, the court held that the accused had caused the death of the person and the doctor and hospital are not liable according to the Explanation 2 of Section 299.
Section 300 — Murder:
This section defines the offence of murder. It reads as:
“Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-
Secondly- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or-
Thirdly- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-
Fourthly- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.”
This provision has been interpreted by the courts such that there should be a direct connection between the consequence and the initial act for which the accused is being convicted. Any form of intended or unrelated breaks in this chain would break the causation.¹⁹
In the case In Re: Maragatham And Anr. v. Unknown²⁰, a couple with a 2-year-old infant were attempting to commit suicide by drowning in a well. Before they could jump into the well, the mother’s hand slipped and the infant baby fell into the well. The parents also jumped but were rescued by others. The baby, unfortunately, died in the well. The Madras High Court opined that, despite there being the mens rea to kill the baby and the consequence of death, the chain of causation was broken before the parents jumped into the well, and hence they weren’t held liable for murder under Section 300, but were convicted under Section 307 for attempt to murder.
Ambiguity Regarding Causation in the IPC:
As stated previously and subsequently justified with examples, the doctrine of causation in the Indian judicial system is not a well-defined and developed concept. The courts have chosen to interpret different causation arising out of different offences and provisions in a different manner. For murder there is a strict interpretation of the chain of causation such that even the slightest interruption or even doubt regarding any stage of causation, would tip the scales in favour of the accused. He would be given the benefit of doubt and then be held guilty of a less serious crime like culpable homicide and not of murder.²¹ The courts decide these levels of causations depending on the case at hand and applying certain loosely based fundamental principles.
While this may seem arbitrary and confusing, the fact of not having a single separate standard to determine causation affords the Indian judicial system some amount of flexibility of establishing causation to different degrees depending on the seriousness of the crimes. However, in many cases, causation does play in favour of the accused and helps him/her to escape liability for their actual crimes. In some cases, while the direct intended victim of the crime has received justice, the rest who were incidentally harmed due to the commission of the offence weren’t considered and the accused wasn’t held guilty of this damage as the courts considered causation to not exist between the two events.²²
This makes causation an unreliable territory in Indian criminal jurisdiction. By clubbing causation with actus reus and mens rea¸ the courts have also, often, refused to recognise causation as an independent element of a crime, thereby, contributing to this confusion.²³
Conclusion
Foreign jurisdictions have developed a sure set method of establishing causation in most criminal cases through both legislations and an effective set of precedents. The UK is one such country which has a well-rounded system regarding causation. This is mainly done through the establishment of the two elements of causation through two different tests. Factual causation first establishes the link in the factual matrix of the case through the “but-for” test. This is followed by the legal causation which is used to determine whether the causal act under scrutiny was substantial and operative in leading to the outcome, mainly through the Novus Actus Interveniens test. It is only upon the satisfaction of these two tests will liability be affixed to the accused the subsequent conviction will follow.
In contrast to this, the Indian judicial system doesn’t have any developed system of establishing causation. It is usually seen under the light of actus reus or mens rea and hence, has never had the chance to grow into an element of its own. The courts have also interpreted this in a very haphazard manner leading to numerous precedents stating employing different standards of causation. Different sections in the IPC have different causations and it is this factor that the courts have to be aware of while deciding any such criminal case.
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[1] Causation in the Law: Stanford Encyclopedia of Philosophy, https://plato.stanford.edu/entries/causation-law/ (last visited Sept. 12, 2020).
[2] Andrew Ashworth and Jeremy Horder, Principles of Criminal Law (7th ed. Oxford University Press, May 2013).
[3] Id. at p. 103.
[4] Causation: Role of Causation in Criminal Law: JRank, https://law.jrank.org/pages/623/Causation-Role-causation-in-criminal-law.html (last visited Sept. 12 2020).
[5] [1991] 4 All ER 673.
[6] Causation and intervening acts in criminal cases: LexisNexis https://www.lexisnexis.co.uk/legal/guidance/causation-intervening-acts-in-criminal-cases (last visited Sept. 12 2020.
[7] Alan Norrie, A Critique of Criminal Causation, 54(5) The Mod. L. Rev. 685, 700 (1991).
[8] Ashworth et. al., supra note 2, at p. 35.
[9] (1976) 62 Cr App R 41.
[10] Niket Khandelwal, Doctrine of Causation, Law Times Journal (Aug. 30, 2020) https://lawtimesjournal.in/doctrine-of-causation/ (last visited Sept. 12, 2020).
[11] J. Rank, supra note 6.
[12] Ashworth et. al., supra note 2, at p. 109.
[13] (1840) 173 ER 867.
[14] P.S.A Pillai, Criminal Law 27 (12th ed. LexisNexis 2019).
[15] Khandelwal, supra note 10.
[16] 2014 MWN CR 2 437
[17] Pillai, supra note 14, at p. 470; Dr. Suresh Gupta v. Government of NCT of Delhi, (2004) 6 SCC 422 [¶ 12]; Jacob Mathew v. State of Punjab, (2005) 6 SCC 1 [¶ 53].
[18] (1978) Cr LJ 858 (MP).
[19] Ashworth et. al., supra note 2, at p. 108.
[20] AIR 1961 MAD 498.
[21] M.B. Suresh v. State of Karnataka, AIR 2014 SC 512.
[22] Subhash v. State, 2012 IndLaw DEL 3634.
[23] Mrinal Satish, Escaping the causation conundrum: The case of Govindaswamy v. State, 1(1) Ind. L. Rev. 87, 87–94 (2017).
The author is a Year II, B.A. LL.B (Hons.) student at the NLSIU, Bengaluru.
Disclaimer: Any academic content published in Legis Sententia will be for informational and academic purposes only, and shall not be reflective of the views of the Department of Law, University of Calcutta or the Editorial Board thereof or any other institution, but only the views of the author concerned.
