Theories of Causation: Yeo, Morgan and Chan

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Yeo, Morgan & Chan proposes that to establish causation between a defendant’s actions and a victim’s death, the courts take a two-step process of factual causation and imputed causation. Factual causation is established to determine if the defendant’s conduct contributed to the victim’s death. If “but for” the defendant’s actions, the victim would not have died, the second step of imputable causation is used to determined if the defendant’s actions were sufficiently strong enough to cause the victim’s death. Yeo, Morgan & Chan states that to determine imputable causation, the substantial cause test is useful for determining that the defendant is punished only when his actions were more than negligible or minimal in contributing to the victim’s death. However, the foresight test should be used to establish imputable causation in all cases where there are intervening causes between the defendant’s actions and the victim’s death. The foresight test is seen as a more refined guide with the capacity to achieve finely tuned moral judgment about causation. The substantial cause test is believed to be too crude to examine areas where another person or event intervenes in the chain of causation.

The substantial cause test is still relevant in intervening causes

The substantial cause test is capable of reaching the same results as the foresight test in cases with intervening acts or events. The court in Smith held that the defendant caused the victim’s although the victim was dropped twice by a third party and given negligent medical treatment by a doctor. The defendant’s actions were still an operating and substantial cause of the victim’s death. The same result would have been reached with foresight test. The effect was similar in cases like Jordan and Cheshire where the court held that the defendants’ actions did not cause the death of the victims because their actions were no longer the operative and substantial cause of the victim’s death.

The substantial cause test can in fact be more sensitive to the facts in establishing causation than the foresight test. The court in the US case of People v. Lewis stated that defendant’s mortal gunshot wound killed the victim although the victim cut his own throat after receiving the gunshot thus hastening his death. The court held that although the victim intervened, it did not absolve the defendant of blame. When he cut his own throat, the victim was not only languishing from a mortal wound but actually dying and the victim’s own action was merely another cause of death. The court held that the defendant’s actions were still a substantial cause. The result of the foresight test in this case would have differed because it was not reasonably foreseeable that the victim would in fact hasten his own death. This would mean the victim’s actions would absolve the defendant of criminal responsibility even though he inflicted a mortal wound. A similar example can also be seen in Ng Keng Yong v. PP where the court held that the defendant naval officers caused the death of the victims despite the negligence of a third party vessel colliding with their vessel. Their actions were deemed a substantial cause thereby establishing causation. Yeo, Morgan & Chan contends that the foresight test would have imputed causation to the defendants’ actions because the other vessel’s negligence was reasonably foreseeable. However, negligence is the unreasonable failure of a party to take due care. The defendants could not reasonably foresee that the oncoming vessel would unreasonably fail to take evasive action. Therefore, employing only the foresight test would not establish causation between the defendants’ actions and the victims’ deaths. This would be grave injustice especially given that their actions were a substantial and operative cause.

The foresight test is not better than the substantial cause test; it is another test in process of establishing causation. An alternative manner to...
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