[By Rohan Karan Mehta, Fourth Year B.A. LL.B. (Hons.) student at NLSIU, Bengaluru]
Introduction
From Hart to Kant, from Calabresi to Bertrand Russel, causation is an inquiry that cuts across disciplines. Given its pervasive nature, my scope in this essay is limited to the adjudication of causation in criminal and tort law.
To elaborate, I propose a theory of how courts actually deal with issues of causation in practice. My claim is that courts engage in a two-step inquiry: first, they establish factual causation; second, they rely on ‘principles of tort and criminal law’. To clarify, this is not a normative claim, but rather a descriptive claim which aims to show how the Court actually adjudicates on causation.
To this end, in Part II, I will show that the existing theories of causation fail to address the increasing factual complexities that the Courts face daily. In brief, I will notably deal with the seminal theory of Hart & Honoré on causation. Considering this paper’s focus on criminal law, I will also deal with Ashworth’s approach. Further, two more common approaches to causation, one that are considered normatively desirable by some scholars, the law & economics approach as argued by Calabresi & Right’s Necessary Element of a Sufficient Set (NESS), which requires causation to be just a NESS.
Yet the Courts adjudicate on all these cases, and in an attempt to understand this adjudication, I argue in Part III that causation has to be seen as a two-part inquiry, wherein, after establishing factual causation, the court relies on the above-mentioned principles to determine causation.
When Theories Meet Messy Facts
A. Common Sense, Uncommon Skulls
Hart & Honoré, in their seminal work, try to cull out common sense principles that the Court apply. For them, the central notion is ‘cause and effect’; i.e. cause makes the difference. To illustrate the theory and its lacunae with Ashworth’s example, lets take the ‘Thin Skull Principle’. The principle entails that defendants must take their victims as they find them. Their theory distinguishes normal conditions & abnormal conditions (cause) in essence, anything that is not normal is the cause. Their distinction incorporates the principle that the victim’s condition or the state would be normal condition and consequently cannot be the cause of an event.
However, consider this “when a voluntary human action intended to bring about what in fact happens, is often regarded…also as still the cause”. Now consider R. v. Blaue; where D stabbed V four times. V was advised that she would die from the wounds unless she had a blood transfusion, but, adhering to her faith as a Jehovah’s Witness, she refused to undergo this treatment and died. The Court of Appeal held D to be causally responsible for her death as this scenario was covered by the ‘thin skull’ rule.
Hart & Honoré have argued two things first, that the decision was not a voluntary one because holding a religious belief, specifically, one such as a Jehovah’s Witness, is not a choice. But considering that in a secular society, people, especially adults, are free to make their moral commitment (religion), and taking on these commitments once a person is an adult is considered voluntary, the first argument does not justify their theory. The second argument, and a concession that they do make, is that “an element of legal policy certainly enters into such a judgment”. In the next subsection, I will reframe this argument, but this is the building block of my claim.
Moving onto Ashworth’s attempt to explain away Blaue, he attempts to point out that victim ‘merely omitted make a decisive causal intervention’, therefore D was the ‘direct cause’. This explaining away rests on the assumption that omission is not an act itself. Hart & Honoré argue that it is “perfectly common and intelligible in ordinary life to speak of static conditions or negative events as causes”. Furthermore, they argue that omissions count as causes when the harm happens because an ordinary precaution was not taken. Therefore, I argue that Ashworth and criminal law’s but for test is insufficient to explain these scenarios.
The purpose of this illustration is that both Ashworth and Hart & Honoré; are not able to explain how the Court actually adjudicates upon causation. (omission unexplainable or causation despite voluntary action breaking the chain). In the next section, I attempt to show why the economic approaches and NESS do not provide an accurate description.
B. Counting Chances, Calling it Cause
Let’s take the doctrine of lost chance, which in tort law allows a plaintiff to recover damages when a defendant’s negligence reduces their already diminished chance of a better outcome. In Gregg v Scott, a negligent delay in diagnosis and referral allowed Mr Gregg’s cancer to progress. His five-year survival prospects fell from about 42% to 25%. He argued that this reduction in prospects should itself be actionable damage. The Court held that clinical negligence for personal injury should not adopt a loss-of-a-chance model as actual damage is required rather than mere probabilities.
However, taking Calabresi’s functional approach into account, for him legal terms “must sooner or later be linked to the service of human needs.” For causation specifically, it entails looking at the role it plays in terms of deterrence, spreading and distributional goals. He argues “that the injury costs allocated to the cheapest cost avoider include only those costs relevant to the choice between injury and safety”.
In effect, because a doctor who negligently reduces survival prospects from 42% to 25% has imposed a marginal harm that should be priced into liability if the system wants to generate optimal incentives for care. The deterrence logic would entail liability for the reduction in chance, internalising expected costs and preventing the doctor’s duty from becoming hollow for patients whose baseline prognosis starts below 50%. The implication here is that, because of Gregg, for sicker patients doctors have no legal incentive to be careful.
The Court’s decision not allowing damages does not fit the functional logic of Calabresi, and he might not try to rebut this, because his project is normative, and he will simply criticise the Court for not taking the most efficient route.
Moving on to the Right’s Necessary Element of a Sufficient Set (NESS) approach. The theory is normative in nature, and a central theme is showing the insufficiency of existing approaches, predominantly the but-for test. NESS might be normatively even more desirable than the status quo; however, for the scope of the paper, it does not affect the way Courts treat cause. One might question the utility of this endeavour given the fact that there are supposedly better normative alternatives available. I argue that before solving an issue, it is necessary to know what the exact contour of the issue is. Knowing that would have put us in a better position to ascertain whether the status quo is desirable or even might supplement the alternative normative approaches. To this end, in the next section, I argue how the Courts determine causation in practice.
From “But-For” to “Best Fit”: A Dworkinian Turn in Causation
To illustrate my argument, let’s start with erstwhile Sec. 304A of the penal code. It states,
“Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide”.
Now with this information, let’s assess two cases.
Case A: Large electric transformer in a cinema hall, installed and maintained by the State Board, caught fire early on the morning. Although this fire was controlled, the subsequent repairs carried out by the Board were unsatisfactory, creating loose connections. Later that day, the loose connections caused sparking, which snowballed into a massive fire. The tragedy’s magnitude was aggravated by numerous violations by the cinema, which in essence blocked the exit of cinema goers. The victims died due to asphyxia.
Case B: A student was travelling in a school bus. The bus had a major defect as the metal sheet under a seat was badly rusted, creating a large hole. The hole was reportedly kept covered with a thick cloth instead of being repaired. While the bus was moving, the child fell through the hole and was run over by the bus, causing his death. The main allegation against the principal was that he had been told in parent meetings that the buses were in poor condition, but failed to ensure repairs or proper maintenance.
In both these applying the dominant counterfactual test would yield two results. In Case A, there are two outcomes. I- but for the fire caused by the State Board, the cinema goers would have died. However can reasonably impute causal liability and responsibility for the deaths by framing it as but for the cinema’s violation. Similarly, for Case B, one framing of causal responsibility can be that but for the principal’s omission, the child died, as they did not do anything despite knowing that buses were in poor condition. However, if one chooses to be more fact specific, this can also be framed as but for cleaner/driver action, wherein it can be reasonably inferred that they had a duty of care, and failure in performing that duty caused the child’s death.
Arguably, all four results are NESS and, in common sense, may be considered the cause. In essence, I argue that the first part of a Court’s two-step causation analysis is invariably factual. More often than not, something akin to a counterfactual analysis. However, this is sometimes not decisive. It seems we are left with more than one option in both cases. This is not to say that both cannot be deemed to have caused and thus be liable; rather, the Courts do not finish their analysis here and go to another step.
In these particular cases, the Court highlighted the principle of ‘causa causans’. In sum, “under Section 304-A IPC, the Court has to examine whether the alleged act of the accused was the proximate and efficient cause of the death.” This argument is one illustration of the second step of causation analysis that courts engage in.
I argue that in the second step of causation inquiry, the Court looks into the general principles of tort/criminal law to come to the answer. The argument I am trying to make, or rather the descriptive theory of causation I am trying to advocate, is based on theories of yesteryear. However, I attempt to further buttress these theories by generalising at a broader level and articulating the idea more coherently.
One may argue that in the majority of the ‘simple’ cases where the first factual step seems to yield a conclusive answer, the Court’s engagement in these principles is not visible; consequently, this is not an accurate description. To rebut this, one has to consider that even in those cases, these principles are present in the background, but the Court does not explicitly mention them, as in those cases, nothing compels the Court to argue at the level of justification of their factual conclusion.
To elaborate, the general principles refer to something akin to the requirement of actual cause in Gregg or defendants must take their victims as they find them in Blaue. I argue that this is what Hart& Honoré refer to when they concede that policy enters into adjudication. It can also be specific to sub-branches, for instance, Sec. 304A has the principle of proximity embedded in it. At times, there may be competing principles at those times, the judges balance them and come to a verdict. These principles cannot be described as common sense; it really is not common sense as to why Sec.304A require proximity, but Sec.300 of the IPC does not. The assumptions I am making are that these principles are something that are finite based on the facts, judges are capable of discovering them and applying them in good faith.
Now, a variety of arguments can be made against this. First, to the illustration of Sec. 304A itself, it can be argued that proximity is just a different standard of causation is something in place of the but-for test; therefore, it is not a reliance on any general principles. However, just looking at adjudication around Sec. 304A clarifies this; it is always articulated as “act causing death must be ‘causa causans’ and nor merely ‘causa sine qua non’.” It means it is something in addition to the counterfactual standard i.e. the principle of proximity is something that Courts consider in the second level.
Second, it may be argued that the second step makes the inquiry in the first step pointless, and judges can use the general principles to find cause where factually there is not, and in essence, decide cases as they wish. I argue that the judges, even if post facto, have to show factual causation as well, and they are often limited by the outcomes that factual causation demonstrates. Therefore, the choice the second step affords is often limited in this sense.
Third, it may be argued that this description is basically just a clothed functional approach. However, this is not the case, as I argue that the judges are not motivated by the functional aspect or the broader goals of tort/criminal law. Rather, they follow these principles because they are binding on them; the principles of actual damage/the thin skull rule/proximity were binding on them, and they were obligated to follow. One may rebut this by questioning the origin of such a principle in the first place, to which I argue that the case for such principles is made through “an amalgam of practice, other principles and appeals to community practices.”
Fourth, what the above two arguments are hinting at is the broader concern of expanding judicial discretion and giving them more freedom. Therefore, this description is not accurate as judges do not really have such discretion in causation. To rebut this, a parallel may be drawn to a chain novel thesis. The judges are constrained by the twin requirement of fit and justification. This, coupled with the requirement of factual causation, severely limits the choices a judge can make in a given fact scenario.
Fifth, one strand of criticism can be that this description obfuscates and obscures the concept of cause into a variety of legal-policy considerations. To clarify the distinction that Dworkin draws between principles and policies is instructive here. I argue that it is not the case that judges consider the general goals of deterrence or distribution of damage when dealing with causation. Rather, the focus is on the individual’s rights and placing penalty/liability on them. Furthermore, even if a similar argument is raised against principles in causation, that may be the case; however, the obfuscation and obscuring act has been done by the judiciary itself.
Conclusion
To conclude, through this response paper, I have attempted to demonstrate a descriptive theory of adjudication of causation. This analysis attempted to show why existing descriptive theories do not really justify the variety of daily complex scenarios. Then, drawing from Dworkin’s general theory of law, I attempted to articulate my theory of causation in practice. Like Dworkin, I have focused on principles and have attempted to showcase how considering that certain principles govern the law of causation might be a more accurate understanding of causation theory. This seems to reconcile seemingly aberrations like Blaue, as in this framework, the thin skin rule is a principle or a second step. Finally, I responded to various possible objections. However, there is a need to further assess this theory in multiple different fact scenarios to ascertain its validity.
End Notes
Book
- H.L.A. Hart and A.M. Honoré, Causation in Law, (Clarendon Press 1959)
- Jeremy Horder, Ashworth’s Principles of Criminal Law (9th edn, Oxford University Press 2019)
- Ronald Dworkin, Taking Rights Seriously (Harvard University Press 1977)
Journal Article
Richard W Right, ‘Causation in Tort Law’ (1985) 73 California Law Review 1734
Guido Calabresi, ‘Concerning Cause and the Law of Torts: An Essay for Harry Kalven, Jr.’ (1975) 43(1) University of Chicago Law Review 69
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