Secondly the original injury arising from the defendants conduct must be more than a minimal cause of the result constituting the offence. This is known as the de minimis rule. So pricking the thumb of a woman bleeding to death would hasten her death, but not enough to be the real cause of it.
Legal causation can be proved by one of the following three ways or by a combination of them. Firstly, the original injury was still an operative and significant cause at the time the result of the offence occurred. In R v Malcherek and Steel (1981) the victims of two separate attacks had been kept on life-support machines; these were switched off when tests showed that they were brain-dead. The two defendants argued that when the hospital switched off the machines the chain of causation was broken, thereby relieving the defendants of liability for murder. The court rejected the argument on the ground that the original injuries were still an operative cause of their victim’s death. As shown in R v Jordan (1956) medical treatment would only break the chain of causation if it was ‘palpably wrong’.
Secondly, an intervening act which is reasonably foreseeable will not break the chain of legal causation. In R v Pagett (1983) the defendant was trying to escape capture by armed police, and used his girlfriend as a human shield. He shot at the police, and his girlfriend was killed by shots fired at him in self-defence by the policemen. The defendant was found liable for the girl’s death because it was reasonably foreseeable that the police would shoot back and hit her in response to his shots. However sometimes the victims conduct is not reasonably foreseeable as shown in R v Williams. A Hitchhiker jumped out of a car at 70mph on the motorway because the passengers of the car tried to steal his wallet. He was hit by a car and died. The court of appeal ruled that the ‘victims conduct must not be daft’ and must be ‘proportionate to the threat of harm’ however they did understand that ‘a victim in the agony of the moment may do the wrong thing’.
Thirdly, where the intervening cause is some existing weakness of the victim, the defendant must take the victim as they find them. In R v Blaue (1975) the victim of a stabbing was a Jehovah’s Witness, a church which forbids its members to have blood transfusions. As a result of her refusal to accept a blood transfusion, the victim died of her wounds. The court of Appeal rejected the defendant’s argument that her refusal broke the chain of causation, on the ground that the accused had to take the victim as he found her. The principle covers not only physical conditions but has been extended to mental conditions and beliefs.
Mens rea is Latin for ‘guilty mind’ and refers to the state of mind of the person committing the crime. There are three different types of mens rea. Firstly, direct intention where the result was the defendants aim or desire. For example A shoots B because he wants to kill him.
Secondly, indirect intention where the accused did not desire a particular result but, in acting as he or she did, realised to the point of virtual certainty that it might occur. The virtual certainty test was laid down by the Court of Appeal in R v Nedwick. The defendant has a grudge against a woman and set her house alight. The woman’s child died in the fire. Lord Lane CJ highlighted that even if death or grievous bodily harm is not the defendants aim or wish, the jury may infer intent if they decide that death or grievous bodily harm was virtually certain to occur from what the defendants did, and the defendant foresaw that this was the case. This was confirmed by the House of Lords in R v Woollin.
Thirdly, subjective recklessness is where a defendant is aware of a risk and takes it where it was unreasonable to do so. In R v Cunningham (1957) the defendant broke a gas meter to steal the money in it, and gas seeped out into the house next door. The woman there was sleeping and became so ill her life was endangered. Cunningham was charged. However the Court of Appeal quashed Cunningham’s conviction and laid down a two stage test for establishing whether a defendant can be said to have acted with subjective recklessness. Firstly, did the defendant foresee a risk of harm, if yes; secondly, did he take that risk regardless. To determine whether the risk-taking was unreasonable the courts will balance such factors as the seriousness of the risk and the social value of the defendants conduct. As William Wilson observed ‘Jumping a traffic light is likely to be deemed reckless if actuated by a desire to get home quickly for tea but not if the desire was to get a seriously ill person to hospital.
Generally a person cannot be found liable for a crime under English law for merely failing to act when they could have done so. However there are limited exceptions to this rule where the law has decided that a person should be criminally liable for failing to act. Firstly if a special relationship exists between two people. In R v Lowe (1973) a father failed to call a doctor when his nine-week-old baby became ill. He had a duty to act, though on the facts he lacked the mens rea of an offence because of his low intelligence.
Secondly, if the defendant voluntary accepts responsibility for another person; In Gibbins and Proctor a woman lived with a man who had a daughter from a previous relationship. He paid the woman money to get food for the whole family; however they did not feed the child and the child died of starvation. The woman was found to have voluntarily accepted responsibility for the child and was liable.
Other exceptions to this rule include, where the defendant has caused a dangerous situation and failed to put it right, where there is a contractual duty, the defendant holds a public office and/or it is created by statute.
b)
Reg could be liable for either s.18 Offences Against the Person Act 1861 (OAPA) or s.20 OAPA. His conduct was voluntary and is a result crime that fulfils both legal and factual causation. The actus reus of s.20 OAPA is: it must be proven that the defendant either inflicted Grievous Bodily Harm or wounded the victim. The extent of the victim’s injuries clearly suggests the defendant will be liable at minimum for s.20 OAPA. The mens rea of the offence is to intend to cause the victim some harm. On cutting the victims tongue off it seems likely Reg wanted to do more than just cause some harm. For s.18 OAPA the actus reus is the same as s.20 however to fulfil the mens rea the defendant must have the intention to wound or cause grievous bodily harm. It is clear that Reg intended to cause grevious bodily harm on his victim so he would most likely be liable for section 18 Offences Against the Person Act 1861.
c)
Assuming Reg was found guilty of an offence the court would take into account a number of different factors when passing sentence on him. Firstly the seriousness of the offence and whether a custodial sentence is needed if so the aggravating factors that would increase his sentence are his past convictions of a similar kind, failure to respond to previous sentences, the seriousness of injuries inflicted, whether a weapon was used and if so what type of weapon, whether the offence was premeditated, whether the victim was particularly vulnerable. The mitigating factors that would reduce sentence are the stage in which the defendant pleaded guilty, pre sentence reports on the defendant and his home background, whether the defendant was provoked and whether the defendant was easily influenced by others to commit the crime.
Tort Law
a)
To succeed in a negligence claim the claimant needs to successfully prove three things. Firstly, proof of duty. The claimant needs to prove to the court the defendant owed him a duty of care. Donoghue v Stevenson (1932) established the concept of a duty of care. Her friend bought her a ginger beer, it had a snail in it and she became ill. She couldn’t sue the shop because no contract but sued the manufacture. Went to the House of Lords where they decided manufacture owed a duty of care. Lord Atkin said “You must take care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. This became known as the neighbour test and there are three factors the court will consider when deciding whether a duty of care exists. Firstly, was there proximity between the parties, physical emotional or relying on expertise. Secondly, was the harm reasonably foreseeable, should the defendant have realised the likely hood of harming the claimant. In Bourhill v Young (1943) a motorcyclist had a crash and died, the aftermath was seen by a woman getting off the tram. She sued the deceased’s estate for trauma and claimed she suffered a miscarriage because of this. She failed because there was no proximity between the two parties and the harm wasn’t foreseeable. Thirdly, since Caparo v Dickman (1990) a further requirement was added: it must be ‘in the interests of justice’.
Secondly, the defendant must prove a breach of the duty of care. The court will apply an objective assessment of the defendants actions, being assessed to what a reasonable onlooker would have thought or as Lord Atkin famously said ‘the man on the Clapham omnibus’. The court will take into consideration five different factors. Firstly, the magnitude of risk: In Bolton v Stone (1951) claimant was injured when struck by a cricket ball that had been hit out of the ground even thought large fences where built around. The court decided there was no breach because the club had taken reasonable precautions considering the size of the risk.
Secondly, the cost of precautions: In Latimer v AEC Ltd (1953) bad weather caused a factory to flood. The owners cleaned up as best as they could: sprinkling sawdust down to make it less slippery. Claimant slipped and injured his back. Court decided the factory had taken all reasonable precautions. The only other step they could have taken was to close the factory and lose productions which would be unreasonable.
Thirdly, any relevant professional standards: in Nettleship v Western (1971) a learner driver hit a lamppost. The driving instructor badly injured his knee. Court held the defendant was in breach of her duty of care because she failed to drive to a reasonable standard.
Fourthly, any social utility connected with the defendants actions: In Watt v Herts. CC (1954) the claimant was a fireman travelling in the back of a vehicle that was carrying heavy lifting equipment to rescue a woman trapped under a bud. The equipment was left unsecured because there was no time to secure it. The claim failed, the social usefulness justified the risk that was taken.
Fifthly, any special characteristic of the claimant that the defendant was aware of: in Paris v Stepney Borough Council (1951) a one eyed welder lost his remaining eye welding. Although there was no general duty to provide goggles at the time: the court recognised more care should have been taken of Mr Paris. His disability was known to his employers.
Thirdly, the defendant must prove resulting damage.
