When applying the law to the facts, there has to be causation. There are two types of causation, Causation in fact, and causation in law. Causation in fact is proven through using the ‘BUT FOR TEST’ the authority for causation in fact is R v White. This is where you say but for the defendant’s actions would the victim have died? If the answer is no then you have causation in fact and move onto causation in law. Causation in law has a separate test, the ‘OPERATING AND SUBSTANTIAL CAUSE TEST’, this means that the defendant must have been the cause of the defendant’s death and that no novus actus interveniens took place (any intervening acts). In Dons case he was the operating and substantial cause of Tim’s death and no new acts intervened so causation in law is proven. The authority for this type of causation is R v Smith.
Therefore Don is not liable because he doesn’t have an intention to kill so there has been no formation of mens rea. As a result Don is not liable for murder but liable for the lesser offence or Manslaughter.
He cannot plead voluntary manslaughter because he has no mens rea for the intention to kill or cause grievous bodily harm. This means that he is liable under involuntary manslaughter.
There are two suitable types of involuntary manslaughter, which Don can plead:
The first is constructive manslaughter otherwise known as unlawful act manslaughter. For the defendant to successfully plead this type of manslaughter there is four stages that need to be proved, there has to be an unlawful act. The authority for the unlawful act is R V MITCHELL or CHURCH. In Dons case the unlawful act, which he caused, was assault. The act also has to be dangerous and the reasonable man test is used to decide this. The authority for the dangerousness is R V DAWSON. Dons act then has to be the substantial cause of death this is shown through the two types of causation, which are in fact, and in law, however there has to be no breaks in the chain of causation R V GOODFELLOW and CATO. In the Dons case there was no break in the chain of causation so this point is proved. The final test is whether he had mens rea. The mens rea for constructive manslaughter is for the criminal act itself, which is assault, and not for an intention to kill or cause GBH. DPP V NEWBURY AND JONES. The mens rea is either caused by intention or recklessness. Don doesn’t have any mens rea for the offence because he didn’t intend to cause any harm although he forms mens rea for the offence when he drove off and left Tim
The second is Gross negligence manslaughter. The test for this type of manslaughter comes from the case of R v Adomako. The test of duty of care, which needs to be fulfilled, is as follows:
Did Don owe a duty of care to Tim?
Did Don breach his duty of care?
Did the breach of duty cause Tim’s death? and
Was it so grossly negligent that the jury considers that it justifies as a criminal punishment?
Don owed a duty of care to Tim because he was a driver who created a dangerous situation. He owed a duty to Tim as a pedestrian and breached this duty.
Don breached his duty of care to Tim because he wasn’t watching where he was driving and failed to stop and help Tim. He fell below the standard of the reasonable man in the reasonable man test. R v Miller
By breaching his duty of care and taking his eyes of the road he caused Tim’s death as a direct consequence of his actions.
I believe that Don was so grossly negligent that the jury will consider it a criminal punishment because as a driver he needed to be prepared to stop suddenly or brake harshly in case of an emergency and he failed to do so making him negligent but, due to him driving off and not stopping to help Tim makes it grossly negligent so much that the jury would consider it a criminal punishment.
I think the most suitable defence would be gross negligence manslaughter because as a driver he broke his duty of care and this breach caused the death of Tim.
