On 'deeming' causation in Barbados

• Author: C. G. Hall
• Position: Of the Faculty of Law, University of the West Indies, Cave Hill Campus, Barbados
• Pages: 517-539

ON "DEEMING" CAUSATION IN BARBADOS

C. G. HALL*

The Barbados Offences Against the Person Act, 1994-18 provides a

comprehensive code of offences in respect of acts against the person

which replaces the earlier Act of

the

same title,

Cap.

141.

The new Act

is much shorter than the old, partly as the result of hiving off sexual

offences into a separate Act, the Sexual Offences Act 1992-3, and

partly by abolishing some arcane offences such as obstructing

clergymen, using chloroform to commit an indictable offence and

attempting to strangle. There is still no definition of murder nor

manslaughter but an important change in s.3 is the abolition of

constructive malice. This paper is not, however, concerned with these

things. Rather it will consider one section of the Act, s.8, referred to

in the statute's marginal note as "killings special cases" which provides

no clue whatever to its subject-matter. In fact, s.8 deals with the main

situations when, at common law, problems of causation have arisen

and seeks to legislate those problems away. For in these situations the

accused, on a charge of murder or manslaughter, will be "deemed" to

have caused the death. Section 8 thus provides:-

1.

A person charged with the murder or manslaughter of another

shall, although his act was not the immediate or the sole cause

of that other's death, be deemed to have killed that other

where

(a) he inflicted bodily injury on that other person in

consequence of which that other person underwent

surgical or medical treatment which caused death;

(b) he inflicted bodily injury on that other person which

would not have caused the death of that other person

had he submitted to proper surgical or medical

treatment or observed proper precautions as to his

mode of living;

Of

the

Faculty of

Law,

University of the West Indies, Cave Hill Campus,

Barbados.

(c) by actual or threatened violence he caused that other

person to perform an act which caused his death, such

act being a means of avoiding such violence which in

the circumstances would have appeared natural to the

person whose death was so caused;

(d) by any act or omission he hastened the death of that

other person from any disease or injury which apart

from such act or omission would have caused death;

or

(e) his act or omission would not have caused death

unless it had been accompanied by an act or omission

of the person killed or of other persons.

2.

In the circumstances specified in paragraph (a), it is immaterial

whether the treatment was proper or mistaken if it was

employed in good faith and with common knowledge and

skill.

The model for s.8 would appear to be Stephen's Digest of the

Criminal

Law,1 Art.

262.

There has seemingly been no close analysis

of Stephen. Hart and Honord, for example, accept it uncritically.2 One

object of this paper is to offer an appropriate critique.

Now it might well appear strange that in an Act which neither

defines murder nor manslaughter, though stipulating the penalties for

those crimes under ss.l and 7, the legislators should have thought it

efficacious to consider in such detail matters which strike at their

actus

reus,

More seriously, the drafting of

the

section appears to corroborate

the danger of over-indulgence in codification, for in this approach the

opportunity for error, in semantics and substance, is maximised.

Section 8 does appear to perpetrate some very obvious errors in so far

as it attempts to encapsulate the common law approach to the problems

with which it deals. If it does not attempt this, though this is unlikely

given its parentage, but rather seeks to break new ground

in

jettisoning

well-tested principles, then the result is a harshness and, at times, an

incoherence which is ill-suited to a code which must stand beyond the

1 9th edn. (1950).

2 Causation in the Law, 2nd edn. (1985): see pp.330, 354, 358.