Dear Colleagues;
The decision of the US Supreme Court in Burrage v United States http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=12-7515 provides an interesting
discussion of causation which, despite the case itself being a criminal appeal, seems relevant to the concept in civil law as well. The question was whether a dose of heroin provided by the defendant was a cause of the death of a deceased who had also ingested
a number of other drugs. (If it were, a long mandatory sentence would be imposed.) Testimony from experts was that they thought that death would have possibly occurred even in the absence of the supplied heroin. The prosecution tried to argue for a wide meaning
of causation.
Scalia J notes that the words used in the relevant criminal statute, "results from,” were not otherwise defined, so the “ordinary” meaning of causation would be adopted. That, his Honour said, was the “but for” meaning. However, it was not restricted
to a single cause-
" The same conclusion follows if the predicate act combines with other factors to produce the result, so long as the other factors alone would not have done so--if, so to speak, it was the straw that broke the camel's back. Thus, if poison is administered to a man debilitated by multiple diseases, it is a but-for cause of his death even if those diseases played a part in his demise, so long as, without the incremental effect of the poison, he would have lived.”
This in my view is the orthodox meaning of the term in the common law world, and the concept described above in my view is what the courts should mean when they refer to “material contribution”. (Yes, I know others disagree…)
The result was that it could not be shown beyond reasonable doubt (the necessary criminal standard, of course) that the death “resulted from” the heroin.
“"The language Congress enacted requires death to "result from" use of the unlawfully distributed drug, not from a combination of factors to which drug use merely contributed. Congress could have written §841(b)(1)(C) to impose a mandatory minimum when the underlying crime "contributes to" death or serious bodily injury, or adopted a modified causation test tailored to cases involving concurrent causes, as five States have done, see Ala. Code §13A-2-5(a) (2005); Ark. Code Ann. §5-2-205 (2006); Me. Rev. Stat. Ann., Tit. 17-A, §33 (2006); N. D. Cent. Code Ann. §12.1-02-05 (Lexis 2012); Tex. Penal Code Ann. §6.04 (West 2011). It chose instead to use language that imports but-for causality.”
The perhaps confusing part is that Scalia J refers to the government' alternative test as one of “contribution”. As far as I can see, if the heroin made no difference, it didn’t even “contribute”. But the result of the case seems consistent with the orthodox
common law views on causation.
Regards
Neil
NEIL FOSTER
Associate Professor
Associate Professor
Newcastle Law School
Faculty of Business and Law
Faculty of Business and Law
Further details: http://www.newcastle.edu.au/profile/neil-foster
My publications: http://works.bepress.com/neil_foster/
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The University of Newcastle (UoN)
University Drive
Callaghan NSW 2308
Australia
CRICOS Provider 00109J
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