Don’s act does not have to be the sole or even the main cause, provided it is the substantial and operating cause of death. This is causation in law and comes from Smith 1959 where the defendant stabbed a soldier with a bayonet during a fight in barracks. The victim’s friend took him to the first aid post, but on the way, the soldier was dropped twice. At the medical post the officer was busy and the victim died about two hours after the stabbing. It was said that if he had been given proper treatment he would probably have recovered, but medical treatment correct or not does not break the chain of causation. If at the time of death the original wound is still an operating cause and a substantial cause, then death can be said to be a result of the wound albeit that some other cause is also operating. Only when the second cause of death is so overwhelming as to make the original wound merely part of the history can it be said that death does not flow from the wound. The injury’s taken by Don’s actions were the operating and substantial cause of Tim’s death, meaning there is causation in law.
"Malice aforethought" is an intention to kill, or an intention to cause grievous bodily harm. Don did not intend to kill Tim, it was a road accident, therefore he does not have the required mens rea for murder. However, it could be argued that it was a natural consequence of his actions that Tim was hit, and that he should not have been talking to Mrs X, unlikely because he was distracted and had no oblique intention.
(b) Don’s liability for involuntary manslaughter.
There are three types of involuntary manslaughter, these are; constructive manslaughter, gross negligence, and subjective recklessness.
Constructive manslaughter (aka unlawful act manslaughter) is where the defendant committed an unlawful act which was dangerous and caused the death of the victim. For this offence the jury must find only the mens rea for the unlawful act. This would fit the case of Don, however someone cannot be liable for an omission under constructive manslaughter.
Subjective recklessness is where the defendant foresaw a risk of serious injury or death resulting from his actions, but went ahead anyway appreciating this risk to be highly probable to occur. This does not suit the case of Don, even though he did foresee a risk of further injury to Tim by leaving him there.
It is likely that Don would be charged with Gross Negligence. This is where the defendant is in breach of a duty owed to the victim, where the victim’s death is caused by this breach and the jury see this negligence as so bad that it is to be categorised as ‘gross’ and should be dealt with as a criminal offence not a civil one. Unlike Unlawful Act manslaughter, which cannot be committed by an omission, Gross Negligence manslaughter can be committed by either an act or an omission.
In Pittwood 1902 the defendant was a level crossing keeper who negligently left open the crossing gate. A man’s cart was struck by a train and the man died. It was held that the defendant had a duty arising from his contract of employment to shut the gate, and although this duty was owed to his employers rather than to the public at large, it was enough to lead to his conviction. Hear Don has created a dangerous situation whereby a pedestrian has be severely injured and needs aid, by failing to act he has breached the duty to Tim, the victim.
