Contract Law – Lecture [01/10/19]
Causation
When an offence requires proof of a prohibited consequence it will be necessary to
demonstrate that D’s conduct has caused a particular prohibited outcome. Causation is not
an issue in “conduct” crimes.
In result crimes the issue of causation is often straight forward. A lengthy analysis is not often
needed in trial. It is only where there are unusual/complicated facts that causation must be
addressed.
A. Simester, ‘Causation in (Criminal) Law’ (2017) Law Quarterly Review 416.
Factual Causation
• This stage applies to acts and omissions. The test is: ‘but for’ D’s conduct WOULD the
prohibited result still have occurred anyway at the same time and in the same way as
it did?
Acts Cases: -
▪ R v. Dyson [1908] 2 KB 454. (V is dying from meningitis when D injures him,
evidence shows that because of the injuries V dies sooner than he would have
anyway.)
o but for’ D’s conduct WOULD the prohibited result still have occurred
anyway at the same time and in the same way as it did? = No D hastened
the time of V’s death.
▪ R v. White [1910] 2 KB 124. (D puts poison in Vs milk, after few sips of the milk V
has a heart attack, however the evidence suggests that the poison was unrelated
to the heart attack and that V would have always had the heart attack anyway. but
for’ D’s conduct WOULD the prohibited result still have occurred anyway at the
same time and in the same way as it did? = Yes, V was always destined to have
that heart attack.
Omission Cases: -
For omission cases many textbooks suggest that the probability is lower, arguing that the
terminology should be MIGHT rather than WOULD. The lecturer suggests that the same
should be used, retaining the WOULD. This goes against Child/Ormerod (LAW107 essential
textbook) but is consistent with Simester and Sullivan et al (LAW307 essential textbook).
▪ R v. Morby (1882) 2 Cox CC 273.
, - If the answer to the ‘but for’ question is ‘yes’ then D cannot be said to be a factual
cause of the prohibited result – someone/something else must be, in which case the
investigation into D’s liability ends.
- If the answer is ‘no’ then D is a factual cause of the prohibited result. However, for
both acts and omissions, this is not enough to find causation: we must look to further
tests which are loosely defined as ‘legal causation’.
Legal Causation
This stage applies to acts and (generally) omissions. Even if D is the factual cause of the
prohibited result, is D the:
- substantial, cause
- blameworthy cause
- operating cause
Substantial cause
Applies to acts and omissions.
Whatever OTHER causes are in play, D’s behaviour must contribute in some particular way to
the result. How ‘substantial’ does D’s contribution need to be?
In fact, the term ‘substantial’ is misleading. D’s conduct merely has to be a more than a de
minimis (more than minimal) contribution. This means more than:
- R v. Cato [1976] 1 All ER 260; (insubstantial/insignificant)
- R v. L [2010] EWCA Crim 1249; (negligible)
- R v. Kimsey [1996] Crim LR 35. (slight or trifling)
The term substantial can often be misleading. D’s conduct does not need to be the main
cause of the prohibited result but needs only be a cause.
Blameworthiness cause
Applies to acts and omissions.
As well as being a ‘but for’ and more than de minimis cause of the prohibited result, there
must also be a link between the blameworthiness of D’s conduct and the prohibited result.
Causation
When an offence requires proof of a prohibited consequence it will be necessary to
demonstrate that D’s conduct has caused a particular prohibited outcome. Causation is not
an issue in “conduct” crimes.
In result crimes the issue of causation is often straight forward. A lengthy analysis is not often
needed in trial. It is only where there are unusual/complicated facts that causation must be
addressed.
A. Simester, ‘Causation in (Criminal) Law’ (2017) Law Quarterly Review 416.
Factual Causation
• This stage applies to acts and omissions. The test is: ‘but for’ D’s conduct WOULD the
prohibited result still have occurred anyway at the same time and in the same way as
it did?
Acts Cases: -
▪ R v. Dyson [1908] 2 KB 454. (V is dying from meningitis when D injures him,
evidence shows that because of the injuries V dies sooner than he would have
anyway.)
o but for’ D’s conduct WOULD the prohibited result still have occurred
anyway at the same time and in the same way as it did? = No D hastened
the time of V’s death.
▪ R v. White [1910] 2 KB 124. (D puts poison in Vs milk, after few sips of the milk V
has a heart attack, however the evidence suggests that the poison was unrelated
to the heart attack and that V would have always had the heart attack anyway. but
for’ D’s conduct WOULD the prohibited result still have occurred anyway at the
same time and in the same way as it did? = Yes, V was always destined to have
that heart attack.
Omission Cases: -
For omission cases many textbooks suggest that the probability is lower, arguing that the
terminology should be MIGHT rather than WOULD. The lecturer suggests that the same
should be used, retaining the WOULD. This goes against Child/Ormerod (LAW107 essential
textbook) but is consistent with Simester and Sullivan et al (LAW307 essential textbook).
▪ R v. Morby (1882) 2 Cox CC 273.
, - If the answer to the ‘but for’ question is ‘yes’ then D cannot be said to be a factual
cause of the prohibited result – someone/something else must be, in which case the
investigation into D’s liability ends.
- If the answer is ‘no’ then D is a factual cause of the prohibited result. However, for
both acts and omissions, this is not enough to find causation: we must look to further
tests which are loosely defined as ‘legal causation’.
Legal Causation
This stage applies to acts and (generally) omissions. Even if D is the factual cause of the
prohibited result, is D the:
- substantial, cause
- blameworthy cause
- operating cause
Substantial cause
Applies to acts and omissions.
Whatever OTHER causes are in play, D’s behaviour must contribute in some particular way to
the result. How ‘substantial’ does D’s contribution need to be?
In fact, the term ‘substantial’ is misleading. D’s conduct merely has to be a more than a de
minimis (more than minimal) contribution. This means more than:
- R v. Cato [1976] 1 All ER 260; (insubstantial/insignificant)
- R v. L [2010] EWCA Crim 1249; (negligible)
- R v. Kimsey [1996] Crim LR 35. (slight or trifling)
The term substantial can often be misleading. D’s conduct does not need to be the main
cause of the prohibited result but needs only be a cause.
Blameworthiness cause
Applies to acts and omissions.
As well as being a ‘but for’ and more than de minimis cause of the prohibited result, there
must also be a link between the blameworthiness of D’s conduct and the prohibited result.
