Battery is again an offence under s39 Criminal Justice Act. It is a summary offence and is punishable with a maximum 6 months imprisonment and or £5,000 fine. Battery involves the application of unlawful force and the mens rea is either intention to apply unlawful force or Cunningham recklessness as to the application of unlawful force. The injuries covered by this offence are slight so that the cuts and bruises caused by the push may be covered by this offence.
Assault occasioning actual bodily harm (ABH) is the next most serious offence and is set out in s47 Offences Against the Person Act 1861 (OAPA). It can be committed by either an assault or a battery (not both) which causes actual bodily harm to the victim. This may involve the victim suffering an injury which may require hospital treatment such as stitches. The mens rea for this offence is either intention to put the victim in fear or Cunningham recklessness as to the putting of the victim in fear leading to ABH or intention to apply unlawful force or Cunningham recklessness as to the application of unlawful force which leads to ABH.
The next offence is malicious wounding contrary to s20 OAPA. This can be committed by the defendant causing either a wound (an external injury) or grievous bodily harm (GBH) (an internal injury) with the mens rea of intention to cause some harm or Cunningham recklessness as to the causing of some harm. The difference between the offences is due to the injury sustained by the victim. The section 20 offence is considered to cover the more serious injuries and so Jenny's broken leg will be covered by this offence as this will be considered too serious an injury for ABH.
Both this offence and ABH are either way offences and are subject to a maximum of 5 years imprisonment.
The most serious of the non-fatal offences is wounding with intent contrary to s18 OAPA. This can be committed by the defendant causing either a wound or Grievous Bodily Harm (as in s20) but the mens rea is intent to cause GBH or intent to resist arrest. Recklessness is not a possible form of mens rea for this offence. It comes with a maximum sentence of life imprisonment.
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(b)(ii) Choose one of those offences. Explain what the prosecution would have to prove in relation to the actus reus and mens rea of that offence. (10 marks)
Most likely offences are ABH or s20. Which D is charged with depends on injuries.
CPS Joint Charging Standards.
For s 20 injuries are either internal (GBH) or external (Wounding). Prosecution has to choose the correct alternative.
Internal injuries - badly broken leg
External injuries - cuts and bruises (JCC v Eisenhower)
Mens rea is either Intention (direct intent or indirect intent) or Recklessness.
s20 is hybrid offence, 5 years max. penalty. More serious injuries than for s 47
Section 20 of the Offences Against the Person Act 1861 provides that Grievous Bodily Harm is an offence triable either way with a maximum custodial sentence of 5 years.
The actus reus of the offence is to inflict either a wound on the victim or Grievous Bodily Harm which according to R v Smith 1961 means really serious bodily harm. A wound is where the external layers of the skin are broken (JCC v Eisenhower).
Since R v Ireland and R v Burstow the offence can include really serious psychiatric harm as long as it is clinically recognised. The CPS Joint Charging standards will give detailed injuries which amount to a wound or Grievous Bodily Harm but certainly a broken bone will come within the definition of Grievous Bodily Harm. The prosecution will look at the injury first to determine the appropriate offence.
The actus reus may be committed with or without a weapon or instrument but must cause harm serious in degree and gravity. The prosecution has to choose whether to charge the defendant with either wounding or Grievous Bodily Harm, he cannot be charged with both.
The mens rea consists of either intention or Cunningham recklessness. Intention means that the defendant need not intend Grievous Bodily Harm or wounding, or be reckless as to its foreseeability, merely to intend some harm. Intention can be either Direct intent (where the defendant intends the injury as his aim or purpose of his actions) or indirect intent (where the injury is a virtually certain consequence of his actions). Recklessness is where the defendant foresees some harm but still goes ahead to take a risk.
In this case the injury to Jenny is likely to amount to Grievous Bodily Harm as it is described as a very badly broken leg which needed surgery. The cuts to the other leg may be serious enough to amount to a wound especially if they require medical attention. The prosecution will have to choose whether they charge the wound or Grievous Bodily Harm. The bruises by themselves unless they also require medical attention are unlikely to be sufficient to amount to a s20 charge.
The prosecution will also have to consider whether there is sufficient evidence of mens rea. Did David intend to push Jenny to cause some harm or was he reckless at to the causing of some harm?
If the prosecution consider that they have enough evidence to show that David intended to cause either a wound or Grievous Bodily Harm (the same injuries as discussed for s20) they may decide to charge him with the more serious offence of wounding with intent under s 18 which carries a maximum life sentence.
The broken leg will generally be considered to be too serious for David to be charged with a s47 offence.
c) Explain what is meant by causation in criminal law. Discuss how the rules of causation may apply to David's liability for the amputation of Jenny's leg. (10 marks)
Causation part of mens rea
Factual causation - 'But for' test
Legal causation - had D substantially, more than minimally, caused injury
Any intervening act?
Cases of R v Smith, R v Blaue, R v Jordan
In any crime it must be proved that there is a causal link between the defendant's actions and the injury suffered by the victim. Causation means the proving of both factual causation and legal causation.
For factual causation the 'but for' test is applied. It will be asked 'but for' the defendant's actions the victim would not have suffered injury. In addition the prosecution must show the illegal action was more than a minimal cause of the injury, known as the 'de minimus' rule.
Legal causation is proved in fatal offences by asking whether the injury was an operative and substantial cause of death or whether there was an intervening act (a novus actus interveniens) by a third person that can be said to have caused the death. In R v Smith the original stab wound was found to be an operating and substantial cause of the victim's death despite the victim being dropped several times and receiving poor medical attention. The cases of R v Jordan and R v Cheshire establish that medical treatment can be an intervening act and break the chain of causation but only if it is considered that the cause of the death was the medical treatment rather than the original injury. In addition the defendant must take his victim as he finds him so that if the victim is suffering from an unknown weakness the defendant cannot blame that weakness for his actions (R v Blaue).
In this case, in order to charge David with causing the amputation, it will have to be considered whether 'but for' his actions Jenny suffered serious injury and whether the original injury caused by him (the broken leg) was still operating at the time of the amputation or whether the medical treatment was so bad that it amounts to an intervening act.
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Negligence
The Facts
Jenny was rushed to hospital with a broken leg after being seriously assaulted. The emergency medical team, being very understaffed, failed to notice a blocked artery. This resulted in later medical complications, as a result of which Jenny had to have her leg amputated.
Jenny is considering suing the hospital for damages in the tort of negligence.
Question (in 4 parts)
(a) Explaining the relevant rules of law, decide whether the hospital owed a duty of care to Jenny in this situation. (10 marks)
Duty of care requires
From Donoghue v Stevenson neighbour test
From Caparo v Dickman - foreseeability, proximity, fair, just & reasonable to owe a duty of care
Examples of those who do not owe a duty (police, fire service)
The tort of negligence was said by Alderson B. in Blyth v Birmingham Waterworks as 'doing something which the reasonable person would not do or failing to do something which the reasonable person would do'. Negligence requires the claimant to prove that the defendant owed a duty of care, that the duty was broken, and that loss or damage was caused by the breach of duty.
The case of Donoghue v Stevenson 1932 established that the test for establishing a duty of care is the neighbour test. Lord Atkin said 'you must not do anything which will injure your neighbour. Who is your neighbour? Anyone so closely and directly affected by your actions that you ought to have them in mind as being so affected when directing your mind to the acts or omissions which are called in to question.' It can be seen that this is an objective test and the defendant's actions are judged according to the reasonable person.
The modern law of establishing a duty of care is set out in the case of Caparo Industries v Dickman 1990 when a three stage test was established - was the damage or injury to the claimant foreseeable, was there proximity between the parties and it is fair, just and reasonable that a duty of care should exist?
In this case as Jenny is a patient of the hospital it can be said to be foreseeable that an act or omission by the hospital would affect her, she is proximate to them as she is a patient and as she is in their care it is fair, just and reasonable that she should be owed a duty of care.
The courts have established rules of public policy to protect some of the emergency services from being sued for negligence by saying that they do not owe a duty of care to those who may be injured by their acts or omissions. This rule has been applied to the police and fire service but the courts have not protected hospitals and doctors in the same way.
(b) Assuming the hospital was found to owe Jenny a duty of care, discuss whether or not the hospital had broken that duty. (10 marks)
Plan
Definition of negligence - doing something the reasonable person would not do or omitting to do something the reasonable person would do
D's conduct judged objectively
No allowance if D is novice (Nettleship v Weston),
Degree of risk may be relevant (Paris v Stepney Borough Council)
Number of times the event happens (Bolton v Stone)
Essay
After establishing the duty of care, the court will assess whether the standard of behaviour of the hospital fell below that of the reasonable person (or hospital). If they find that it has then Jenny will be able to show that they have breached their duty to her. Again the test for breach of duty is objective. The defendant is not expected to be a perfectionist. A specialist (a doctor) is expected to show the same standard as other competent specialists in that field. In the case of doctors this is said to be the Bolam test.
The court will take various factors into account when deciding whether there has been a breach of duty. The likelihood of injury is one factor. The more likely an injury the greater the precautions that should be taken. Conversely the less chance of an injury the defendant may take less precautions (Bolton v Stone).
The gravity of injury to the claimant is another factor to be considered (Paris v Stepney Borough Council).
Any social benefit regarding the breach of duty are considered as in Watts v Hertfordshire C.C.
If the defendant is young then he will be judged according to the reasonable person of that age (Mullin v Richards). If the defendant is inexperienced or a novice he will be treated in the same way as a person who has had experience (Nettleship v Weston).
In this case it will have to be decided whether the reasonably competent medical team would have discovered the blocked artery. If they would have done so then the failure by the team in treating Jenny will mean that they breached their duty to her. They are unlikely to be able to blame the severe understaffing as the law will not protect a service in this way. It is likely to require that the service is adequately staffed at all times to provide a competent service.
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c) Jenny's injuries have clearly caused loss to her. Explain how the law would decide whether the loss was too remote for Jenny to be awarded damages. (10 marks)
Injuries have in law not to be too remote from D's act or omission
The Wagon Mound
Requirement of causation - Barnett v Chelsea & Kensington Hospital
The claimant must finally prove that the damage or injury resulted from the breach of duty. This is called remoteness of damage.
The case of Re Polemis stated that the defendant would be liable for all the consequences of his action, regardless of foreseeability. This was overruled by the Privy Council in the case of the Wagon Mound which provides that the defendant is liable for only the foreseeable consequences of his acts or omissions. The extent of the damage or injury is irrelevant as long as the type of damage or injury is foreseeable. It must be shown that the defendant caused the damage or injury and just like criminal law the defendant will not be able to blame the claimant for a weakness of which he did not know. This is called the 'egg shell skull rule; and was applied in Smith v Leech Brain when the defendant was held liable for all the injury caused to the claimant. Just like in criminal law if there is a novus actus interveniens by a third party this will break the chain of causation (Barnett v Chelsea & Kensington Hospital).
In this case the court is likely to decide that the type of injury suffered by Jenny was a reasonably foreseeable consequence of their operation and the hospital are unable to blame the 'weakness' of Jenny - the blocked artery - as they must take Jenny as they find her.
(d) Assuming the hospital were to be found negligent in its treatment of Jenny, explain how the court would decide on the amount of the award of damages. (15 marks)
Remedies in tort are damages & injunction. In cases of personal injury usually damages awarded to attempt to put Claimant back in position they were in before the accident so far as money can do so.
General Damages - calculated according to pain & suffering, loss of amenity, loss of future earnings, future medical expenses.
Special damages - property damaged in accident, loss of earnings and medical expenses from accident to date of hearing.
In the law of tort there are two remedies that can be awarded to the successful party. The remedy for the successful claimant in a personal injury action is the award of monetary compensation called damages. The parties can agree on the amount to be paid. If they cannot agree it will be for the court to decide. The court would decide on the amount of damages that Jenny would receive by looking at her injuries and her losses. The principle they would operate under would be to compensate her for her injuries in an attempt to put her back into the position as far as possible she would have been in had the accident not had happened.
Civil law damages can be divided into Special damages and General damages. Special damages are quantifiable liquidated losses such as property damage e.g. to a car, or actual loss of earnings. Jenny could be awarded special damages for anything she lost as a result of the accident, for example trousers being cut at the hospital or not being able to work after the accident and up to the date of the court hearing.
She could also be awarded General damages. These are an un-quantifiable unliquidated amount and are calculated according to Heads of Damage. Amounts are awarded for each of the Heads for matters such as pain and suffering undergone by Jenny as a result of the accident, loss of amenity, that is not being able to do something after the accident that she was able to do before, loss of future earnings and future medical expenses. For loss of future earnings the court will take an annual amount that they think she would have earned and multiply it by a number of years to arrive at an approximate amount for this Head. Similarly for future medical expenses the court will make a projection as to the type of care and attention that Jenny would need in the future and calculate an amount accordingly.
The court could order that the damages are paid in one lump sum immediately after the court hearing, or they could order payment by way of a structured settlement, that is by regular instalments. Once the payment has been made it will be for Jenny to spend or invest it as she sees fit. She will not be able to return to court in the future to ask for more because she has run out.
