The Rules of the Law of Tort and Theory in the Law of Tort

Objectives:

• Describe the meaning of tort and the term 'tortfeasor'
• Outline the origins of the law of tort
• Identify different torts
• Explain the purpose of tort
• Explain the difference between fault liability and strict liability
• Explain the justification for a tort system (including reasons of economics, corrective justice and retributive justice)
• Explain criticisms of the tort system

What is tort?

• The word 'tort' comes from Norman French and means 'wrong'
• It is a body of law mostly found in common law rather than statute law
• It involves 'civil wrongs'
• Some examples of torts include trespass, nuisance and negligence
  

What is a tortfeasor?

• A person who commits a tort

Is there anything wrong with the phrase "Trespassers will be prosecuted"?

Trespass is Civil Law, while Prosecution is Criminal Law

Origins of the Law of Tort

• Prior to the Norman invasion, Anglo-Saxon law dominated in much of England
• Anglo-Saxon law usually required the payment of money to the victim for civil (and criminal) wrongs committed
• Anglo-Saxon legal principles heavily influences the growing common law that was developing after the Norman invasion in 1066
• The concept of 'civil wrongs' was referred to by various names. however, beginning at the end of the sixteenth century, the term 'tort' began to be increasingly used and started to replace the other terms
• The English legal system is a common-law system. This means that it is heavily influenced by judicial precedent and, unlike Roman Law, it is largely uncodified
• The common law system provided the means by which the law of tort could develop and grow through the decisions of judges
• This means that some torts are relatively new such as negligence (originating from Donoghue v Stevenson in 1932) and the rule in Rylands v Fletcher in 1868:
• Reservoir built on land - leaked into claimant's mine causing damage
• Defendant 'strictly liable'
• Building a reservoir is an 'unnatural' use of land
• Defendant must be liable for the consequential damage that it causes

How might your private interests be infringed?

• When you walk along a pavement
• A driver using his mobile might lose concentration, mount the pavement and hit you
• When you drive your car
• Another car may drive into the back of your car at a stop
• When you are sleeping at night in your bed
• A neighbour might play loud music that keeps you awake
• When you drink a bottle of ginger beer
• The beer may have a decomposing snail in it which makes you ill (cough cough)
• When the quickest way to the local shop is through your front garden
• Your neighbours may take a shortcut through your front garden without your permission

Various Torts

• Private Nuisance - an interference with a person's enjoyment and use of his or her land without lawful justification
• Defamation - a false statement that ridicules a person in the eyes of right thinking members of society
• False imprisonment - depriving a person of freedom of movement without lawful justification (this tort is regarded as a type of trespass to the person)
• Trespass to land - entering the land of another without lawful excuse
• Trespass to the person - a direct and intentional act of assault, battery or false imprisonment

Fault Liability v Strict Liability in Tort

• Fault liability refers to situations where a person will only be held liable if they were at fault. In most torts, fault must be shown for the defendant to be held liable
• Strict liability refers to situation where a person will be held liable even if they were not at fault

What fault had occurred?

• A person is riding a bike when a car comes speeding round the corner, mounts the pavement and hits them. They suffer a broken leg and have been off work for a couple of weeks now. The driver is being prosecuted for dangerous driving. Is there a way they can claim compensation for the pain they are suffering as well as their loss of earnings?
• Under the tort of negligence, the driver of the car owes other road users a duty of care
• He/she had breached this duty of care and is at fault
• What if the person's mum saw and developed depression as a result of the upset?
• The driver also owes the mother a duty of care as it is reasonably foreseeable that his/her negligent acts or omissions could have caused this harm to the mother
• 
  
• General damage = injury only
• Special damages = things lost or damaged that can actually be given a value (phone, laptop etc)
  
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• A person has just bought a small farm. They have built a large reservoir on the farm where they can go fishing. They had the reservoir built by a reputable company. Last night there was a storm and the reservoir burst its sides and flooded their next door neighbour's property. Are they liable for the damage caused?
• They may be held liable for the damage caused by the escape of water from the reservoir on their land
• In Rylands v Fletcher it was decided that the owner of a property can be held liable for the escape of a non-naturally held thing that causes damage. In this case, the reservoir is non-naturally occurring and water has escaped from it and caused damage
• It might be argued that they had not been at fault as they had the reservoir built by a reputable company. However, the rule in Rylands v Fletcher is a tort largely based on strict liability rather than fault
• It might also be argued that if the rain is seen as an Act of God rather than a faulty constructed reservoir then they might not be held liable
• (Please not that the decision of the House of Lords in Cambridge Water Co v Eastern Counties Leather PLC [1994] has introduced an element of fault to the rule in Rylands v Fletcher as there must be foreseeability of damage)
• In Cambridge Water Co v Eastern Counties Leather PLC [1994] the defendant's leather tanning business resulted in solvent making its way into the soil, thereby contaminating the claimant's borehole. The defendant was held to not be liable as it was too remote. It was not reasonably foreseeable that the borehole would have to close

Corrective and Retributive Justice

• Corrective Justice is sometimes known as Restorative Justice. It means putting a person back in the position he/she was in. This might be through the payment of damages or even the issuing of an apology
• Retributive Justice is based on punishment. It aims to prevent wrongdoing

The Justification of Tort

Some of the justifications for the existence of tort include:

• It provides the means for a person to obtain compensation for the damage caused by the wrong committed by another person. The person can be restored to the position they were in before the tort occurred (this is sometimes known as corrective or restorative justice)
• It creates an incentive for persons to avoid committing acts or omissions that might hurt others. It might make people and companies be more careful with their acts or omissions and therefore make society more safe
• People who suffer injuries and are unable to claim compensation may have to go on benefits which will ultimately cost the taxpayer money
• It is supported by the concept of the Rule of Law. For instance, a claimant unlawfully detained by the police can bring an action for unlawful imprisonment
• Although the law of tort is largely based on corrective justice, in some circumstances a court can award damages to punish the tortfeasor. For example, exemplary damages can be awarded for the oppressive, arbitrary or unconstitutional torts committed by the servants of the government. This is a type of retributive justice

Criticisms of Tort

There are many criticisms of the system of tort:

• It is creating a compensation culture
• Claims of negligence brought against the NHS cost the taxpayer a lot of money
• Many potential claimants may not have the financial means to bring an action in tort and legal aid is rarely available for tort
• A tort such as Rylands v Fletcher is a largely strict liability tort and has been criticised for not requiring fault on the part of the tortfeasor
• The system may be abused by people making fraudulent claims

Non Fatal Offences Against the Person

• There are two common law offences against the person: assault and battery
• The main offences of ABH, GBH and GBH with intent, are contained in the Offences Against the Person Act 1861
• This is a very old statute which causes problems for the legal system

Common Assault

• Common law offence
• Summary offence
• Charged under s39 Criminal Justice Act 1988
• 6 months imprisonment or fine

Actus Reus:

• An act which causes the victim to apprehend the infliction of immediate and unlawful force being used against them
• It must be an act, an omission is not sufficient
• It only needs to have caused fear, no force need actually be applied
• Needs to be immediate but this interpreted as just imminent - Smith v Chief Superintendent of Woking Police Station (1983) - a woman was being watched by a man in her garden. Her fear was sufficient
• Constanza (1997) the defendant wrote over 800 letters to the victim with the last two containing what the victim believed to be threats
• Ireland (1997) silent telephone calls were considered to be an assault as they put the defendant in immediate contact with the victim

Mens Rea - intention to cause someone to fear the immediate infliction of unlawful force or recklessness as to whether that fear is caused

Common Battery

• Common law offence
• Summary offence
• Charged under s39 Criminal Justice Act 1988

Actus Reus:

• Application of unlawful force against the victim
• The force can just be a touch Collins v Wilcock (1984) - where police officers tried to question two prostitutes who didn't want to talk. Eventually a police officer put his hand on the back of one of the prostitutes' arm - this was considered to be battery
• Thomas (1985) where touching the bottom of a woman's skirt was sufficient as the court said this was the same as touching the person
• Wood v DPP (2008) where a police officer took hold of Wood's arm to check his identity. It was held that the officer had not arrested Wood, therefore there was a technical assault by the officer and Wood was therefore entitled to struggle and was not guilty of any offence of assault against the police officer
• Battery can also be committed by omission - DPP v Santana Bermudez (2003) where a police officer asked the person she was searching whether or not they had any sharp objects in their pockets. They said no, but when she put her hand in their pocket she pricked herself on a needle. It was held that the defendant's failure to tell her of the needle could amount to the Actus Reus

Mens Rea - an intention to apply unlawful physical force to someone or recklessness as to whether that force was applied - R v Cunningham - test for recklessness is subjective

Assault Occasioning Actual Bodily Harm

• s47 Offences Against the Person Act 1861

Actus Reus:

• An assault or battery which causes actual bodily harm (so Actus Reus is the same as these offences)
• Miller (1954)
• Husband raped estranged wife and threw her to the ground three times
• She was in a hysterical and nervous condition because of him
• Charged with rape and ABH - relied on marital exception to rape but was found guilty of ABH
• ABH is any harm or injury that interferes with the health or comfort of the victim
  
• T v DPP (2003)
• Defendant chased and kicked victim
• Victim lost consciousness for a brief period
• Loss of consciousness, even momentarily, was held to be actual bodily harm
• DPP v Smith (Michael) (2006)
• Defendant sat on top of his ex and cut her ponytail off
• She sustained no bruises, scratches or cuts
• Cutting the victim's hair can amount to actual bodily harm
• Can be charged where there is any injury - bruising, grazes and scratches are all sufficient
  
• Chanfook (1997)
• Victim locked in room by defendant (the defendant thought the victim had stolen from him and was threatening violence)
• Victim tried to escape through the window and sustained injuries as a result
• Conviction quashed as the victim's panic and following distress was not sufficient for ABH (the prosecution chose that route instead of the physical injuries sustained)
• Psychiatric injury counts, but it must be an identifiable clinical condition

Mens Rea - Considered to be the same as for assault and battery

• Roberts (1971) the defendant was driving a car and made advances to a girl who was sat in the passenger seat. He tried to take her coat off and she feared that he was going to commit a serious assault and so jumped from the car, which was travelling at approximately 30 miles per hour. She was slightly injured from the jump and Roberts was found guilty of assault occasioning actual bodily harm even though he had not intended any injury or realised there was a risk of injury; he had applied unlawful force when he tried to assault her in the car and this satisfied the Mens Rea for a common assault and so he was guilty under s.47
• Savage (1991) the defendant threw a glass of beer over her ex husband's new girlfriend in a pub. The glass accidentally slipped out of her hand and cut the woman. She had intended to throw the beer so had the intention to apply unlawful force

Malicious Wounding/Inflicting Grevious Bodily Harm

• s20 Offences Against the Person Act 1861

Actus Reus:

• a direct or indirect act or omission which causes wounding or the infliction of grievous bodily harm
• This offence is clearly split in two and the defendant must be charged correctly to ensure conviction
• Wounding = a cut or break in the whole skin
• JCC v Eisenhower (1983)
• Internal bleeding in the eye was not sufficient as skin not broken
• Wood (1830)
• Victim's collar bone broken but skin wasn't so not a wound
• Grievous bodily harm = serious harm following Saunders (1985)
• Burstow (1997)
  
• where the victim of a stalker suffered a severe depressive illness as a result of being stalked. It was held that serious psychiatric injury can be grievous bodily harm
• Bollom (2004)
• Victim was a 17 month old child whose abdomen, leg and arms were bruised. The Court said the severity of the injuries should be assessed in accordance with the victim's age and health
• Dica (2004)
• it was decided that infecting someone with HIV was infliction of GBH

• R v Konzani
• Gave three people HIV after having unprotected sex with them
• Didn't tell any of them that he had HIV
• Claimed in court that they knew
• They didn't, and so couldn't give informed consent

Mens Rea - intention or subjective recklessness as to some harm - must be done maliciously

• Based on Cunningham (1957) which means an intention to do a harm that was done or recklessness as to whether that harm should occur or not (the defendant must foresee it)

Malicious Wounding or Inflicting Grievous Bodily Harm with Intent

• s18 Offences Against the Person Act 1861

Actus Reus

• Wounding or causing grievous bodily harm
• Definitions of these are same as for s 20
• Necessary to prove that the defendant's act was a substantial cause of the wound or grievous bodily harm

Mens Rea:

• Intent to do some grievous bodily harm or resist or prevent the lawful apprehension or detention of any person
• If any injury is caused whilst resisting arrest then recklessness can be proved in relation to this injury - Morrison (1989) where a police officer seized the defendant to arrest him and he dived through a window taking her with him. Her face was badly cut by the glass. Recklessness was sufficient for this injury
• Taylor (2009) 
• Defendant stabbed victim in the back of the neck with a knife
• Intention to wound is not enough for the Mens Rea for s18 
• Intention can be direct or oblique
• Nedrick (1986)
• Defendant poured paraffin through victim's letterbox and set it on fire
• A child died in the fire, which was not the defendant's intention
• Decided to be manslaughter, not murder. Substituted as such due to a defective direction given by the judge
• Where there is no direct intent, a judge is entitled to direct a jury that intent may be inferred if the resulting death was virtually certain and the defendant appreciated this virtual certainty (two independent requirements)
• Woollin (1998)
• Defendant threw his 3 month old son at a wall in anger, but claimed that he didn't intend to kill him
• Judge directed jury, applying R v Nedrick that the defendant could be said to have intended the death if there was a substantial risk of death which was appreciated by the defendant
• Conviction unsafe so one of manslaughter substituted
• Judged used the wrong term and so blurred the lines between intention and recklessness
• Direct intention = can be said to exist where the defendant embarks on a course of conduct to bring about a result which in fact occurs (e.g I wanna kill my wife so I get a knife, sharpen it, and stab her)
• Oblique intention = more complex. Can be said to exist where the defendant embarks on a course of conduct to bring about a desired result, knowing that the consequences of his actions will also bring about another result (e.g I wanna kill my wife so I'm gonna bomb her at work - I know her colleagues will die so I am no less culpable for killing them than killing my wife)

CPS Charging Standards

• The Charging Standards document gives useful examples of the matters that the CPS should consider in deciding the level of offence to be charged
• In deciding whether to charge the defendant with a common assault or with an s.47, it states
• "Where battery results in injury, a choice of charge is available. The Code for Crown Prosecutors recognises that there will be factors which may properly lead to a decision not to prefer or continue with the gravest possible charge. Thus, although any injury that is more than transient or trifling can be classified as actual bodily harm, the appropriate charge...will be contrary to section 39 where the injuries amount to no more than the following:"
• Grazes
• Scratches
• Abrasions
• Minor bruising

General Elements of Liability: Strict Liability

Strict Liability

• To be found guilty of a crime, the defendant must be shown to have committed to Actus Reus with the appropriate Mens Rea
• Strict liability is the exception to this rule
• For crimes of strict liability, it is not necessary to prove Mens Rea. The defendant will be found guilty if they have committed the Actus Reus
• Pharmaceutical Society of Great Britain v Storkwain Ltd (1986):
• a pharmacist was convicted of supplying drugs without a valid prescription under s58(2) Medicines Act 1968 which states that no one shall supply drugs without a doctor's prescription. 
• The signature on the prescriptions had been forged although the pharmacist had no knowledge of this. 
• Despite this, even on appeal to the House of Lords, the pharmacist was still found guilty
• The defendant must be proved to have committed the Actus Reus and in most cases this must be done voluntarily
• However, Larsonneur (1933):
• Defendant was a foreigner found in England
• She was deported to Ireland
• The Irish police deported her back to England
• She was immediately arrested when she landed back in England

Absolute Liability

• Winzar v Chief Constable of Kent (1983):
• Winzar taken to hospital - turns out he's drunk so gets asked to leave
• He's later found asleep in a corridor
• Police called and Winzar carried out and put on the pavement outside
• He was promptly arrested for being found drunk on the highway under the Licensing Act 1872
• He was convicted
• This is an example of absolute liability. No Mens Rea is required for such offences and the Actus Reus does not need to be voluntary

Back to Strict Liability

• The starting point for these offences is that there is a presumption that Mens Rea is always required
• This is for the courts to decide
• R v Prince (1875)
• Appellant charged with taking an unmarried girl under the age of 16 out of the possession of her father
• He knew that the girl was in the custody of her father, but he believed her to be 18
• His conviction was upheld
• The offence was one of strict liability as to age and therefore his not knowing her true age was no defence
• R v Hibbert (1869)
• Appellant was charged with taking an unmarried girl under the age of 16 out of the possession of her father
• This case differs from R v Prince, as Hibbert didn't know that the girl was in her father's custody, so the conviction could not be sustained

Due Diligence

• Callow v Tillstone (1900):
• Callow was a butcher who asked a vet to examine a carcass to see if it was fit for human consumption
• The vet said it was, so Callow offered it for sale
• PLOT TWIST - it wasn't
• Callow was convicted as he had sold meat that wasn't fit for human consumption
• It was in this case that the courts decided that a defendant can be convicted of an offence where he voluntarily commits the Actus Reus, which subsequently results in a prohibited consequence
• However, in some statutes there is a defence of 'due diligence' available for some offences - the defendant can argue that they took all reasonable care to prevent the consequences
• Poor Callow
• Harrow London Borough Council v Shah & Shah (1999)
• Owners of a shop were aware of the rules regarding the sale of lottery tickets
• They put up notices in their shop and told staff not to sell any tickets to anyone under the age of 16
• Nevertheless, a member of staff sold a ticket to an underage boy, even though he did seem older
• The owners of the shop were found guilty
• Liability was strict and no Mens Rea was needed for the age of the boy

The Defence of Mistake

• The defence of mistake is not available for strict liability offences
• Cundy v Le Cocq (1884)
•  A drunk person was served when they shouldn't have been
• Sherras v De Rutzen (1895)
• A constable who was on duty was served when he shouldn't have been
• Both involved honest mistakes and the serving of alcohol. In Cundy it was held to be an observable fact that the customer was drunk. In Sherras it was impossible to know whether the constable was on duty or not

What's the issue?

• The main problem with this area of law is in deciding which offences should be labelled as strict liability
• Remember that the presumption is that Mens Rea is always required and this is the starting point
• Most strict liability crimes are found in statutes but there are four that are found in common law

Strict Liability in Common Law

• There are only 4 common law offences which the Courts have decided are strict liability:
• Public nuisance
• Criminal libel
• Blasphemous libel
• Criminal contempt of court
• Lemon & Whitehouse v Gay News (1979)
• Appellants convicted of blasphemous libel
• They challenged the conviction, as blasphemy was not intended
• The conviction held - Mens Rea was not necessary

Regulatory Offences

• A large amount of offences created by statutes are designated as strict liability offences by the courts
• Many of these are classed as regulatory offences because they 'regulate' various types of behaviour, e.g speeding and traffic offences regulate the flow of traffic on the roads; food and hygiene regulations regulate the sale of food

REMEMBER

• The courts start with the presumption that Mens Rea is required
• B v DPP (2000)
• 14 year old boy charged with an offence of inciting a child under the age of 14 to commit an act of gross indecency (he asked a girl on the bus for a blowjob and she turned out to be 13) - he was unaware of her age
• It was ruled that the offence was one of strict liability
• Conviction quashed on appeal
• Sweet v Parsley (1969)
• School teacher let her house out to students
• They smoked cannabis in the house without her knowledge
• She was charged under the Dangerous Drugs Act 1965
• The statute did not state any requirement of Mens Rea of the offence
• The House of Lords looked at the common law before the statute was made
• Common law required knowledge of the activities in order to impose liability
• No conviction, as it was decided to be a true crime, and so Mens Rea was required
• The courts then look at the wording that Parliament has used in a particular statute to decide whether it should be interpreted as a strict liability offence

Problem?

• The problem with this area of law is that it is largely based on the judge's interpretation of the wording. Parliament rarely gives any strong indication that an offence should be one of strict liability and mostly the statutes are silent on the issue

The Gammon Case

• Gammon (Hong Kong) Ltd v Attorney General of Hong Kong (1984)
• The defendants had built a building in Hong Kong, part of which had collapsed. 
• The collapse was found to be a direct result of the builders having deviated from the original plans, which was forbidden in Hong Kong law.
• Strict liability
• Privy council decision
• They were convicted
• The penalty was a fine up to $250,000 or 3 years imprisonment
• On appeal their conviction was upheld

What did it do?

• As a result of the Gammon case, the Privy Council restated the fact that the courts should always start with the presumption that Mens Rea was always required and then move on to four tests:
1. To see if the wording of the statute indicates strict liability
2. To decide if the offence is of a regulatory nature or a 'true crime'
3. To see whether the issue involved is an area of social/public concern
4. To see whether enforcing strict liability will promote greater vigilance

1) The Wording of the Statute

• If the statute uses the words 'knowingly' or 'intentionally', then the offence requires Mens Rea
• Alphacell v Woodward (1972)
• Appellant factory owner convicted of causing polluted matter to enter a river
• Appellant unaware of pollution and no negligence alleged
• As a matter of public policy, the offence was one of strict liability
• This involved the word 'cause'. The factory 'caused' pollution to enter the river - no Mens Rea was required

2) Regulatory Offences v True Crime

• What is the difference between the two?
• Generally true crimes are those to which a stigma can be attached, e.g murder. Regulatory offences, such as speeding, have very little, if any, social stigma attached to them
• Sweet v Parsley (1969)

3) An Issue of Social/Public Concern

• This involves the courts looking at the statute involved to decide whether it involves an issue of social concern
• This can result in strict liability being imposed in a wide variety of situations where there may be dangers to public health, safety or morals
• Blake (1997)
• Appellant accidentally transmitted an unlicensed radio station broadcast ' he thought he was making demonstration tapes
• Strict liability offence ' the presumption that Mens Rea was required could be rebutted where the offence concerned an issue of public safety

4) Promoting Greater Vigilance

• The courts need to ask whether imposing strict liability will make the law more effective in promoting its objectives
• Lim Chin Aik v The Queen (1963)
• Defendant convicted of contravening an order prohibiting his entry into Singapore
• He had no idea the order existed
• The imposition of strict liability could only really be justified where it would succeed in placing the onus to comply with the law on the defendant
• Strict liability should only apply if it will help enforce the law by encouraging greater vigilance to prevent the commission of the prohibited act
• Smedleys v Breed (1974)
• Smedley´s made tinned peas
• 4 tins contained caterpillars
• Found guilty of strict liability offence because of the statute of health and safety

General Elements of Liability and the Elements of a Crime: Causation

Causation

• In order to prove someone guilty of a crime where a consequence is required (e.g murder where there has to be a dead body) then it has to be proved that the defendant caused that consequence
• Without this, in many circumstances the defendant would be found not guilty
• The defendant's conduct must be:
• The factual cause of the consequence
• The legal cause of the consequence
• AND there must be no intervening act which breaks the chain of causation

Factual Causation

• There are two tests to prove factual causation:
• the 'but for' test
• but for the actions of the defendant, the victim would not have died as and when they did
• White (1910)
• Defendant poisoned his mum
• The poison didn't kill her, but a heart attack did (she went to sleep and never woke up)
• The defendant was therefore not liable for murder; he was liable for attempt
• This case established the 'but for' test
• Dalloway (1847)
• Defendant was driving a horse and cart down the road without holding the reins
• A child ran out in front of the cart and was killed
• The defendant was not liable, as he would not have been able to stop the cart in time, even if he had been holding the reins
• Paggett (1983)
• The appellant (31) used his pregnant, 16 year old girlfriend as a human shield against police fire
• He was convicted of manslaughter, as his firing at the police officers caused them to fire back (it was dark and they could not see the girl). It was his using the girl as a shield that killed her
• the de minimis rule:
• the defendant's actions must be more than just a minimal cause of the death but need not be substantial
• Kimsey (1996)
• Jury can be told that instead of using the 'de minimis' phrase, there must be "more than a slight or trifling link"

Legal Causation

• This can be satisfied by proving any of the following:
• that the original act was an operative and substantial cause of the consequence
• that the intervening act was reasonably foreseeable
• the thin skull test

Operative and Substantial

• This is frequently looked at with homicide cases where the original injury must be an operative and substantial cause of the death
• It frequently looks at medical treatment creating an intervening act

Medical Treatment

• Medical treatment rarely breaks the chain of causation
• It needs to be proved that the treatment was so independent of the defendant's actions that it actually had a greater effect on the consequence than the defendant's actions thus making the defendant's actions insignificant
• Smith (1959)
• Significantly poor medical treatment but original wounds were still operative and substantial so the defendant remained liable for the death
• Cheshire (1993)
• The defendant only had to contribute significantly to the death. His actions did not need to be the sole cause
• Jordan (1956)
• Original wounds were nearly healed and victim was given 'palpably wrong' medical treatment so the defendant was not liable
• In Smith and Cheshire the doctors were trying to save the victims' lives - they wouldn't have required treatment without the defendant's actions. In Jordan the injuries had virtually healed
• The case of Malcherek (1981) showed that switching off a life support machine will not break the chain of causation
• The defendant stabbed his wife. She was on life support but found to be brain dead so the doctors switched it off
• He was found guilty of murder

Intervening Acts

• Causation is like a chain, There must be a direct link between the act of the defendant and the final consequence
• The chain can be broken by another act that occurs between the original act and the consequence (it's called an intervening act) - Novus actus interveniens
• Intervening acts can be
• an act of a third party
• the victim's own act
• a natural and unpredictable event
• The intervening act must be sufficiently independent of the defendant's actions and sufficiently serious to break the chain
• Pagett (1983)
• action of police in returning fire was forseeable
• The victim's own acts have the potential to break the chain of causation unless they are reasonably forseeable
• Roberts (1971)
• Roberts gave the victim (a stranger) a lift
• After they refused his sexual advances, Roberts drove off at speed
• In order to escape, the victim jumped from the moving car and sustained actual bodily harm
• Roberts was found guilty of ABH, as the victim´s actions were neither daft, nor so unexpected that no reasonable man would have acted in the same way
• Escaping does not break the chain of causation, unless it is ´daft´ in the eyes of the jury
• Marjoram (2000)
• Defendant forced their way into a girl´s room on the third floor of a hostel
• She either jumped or fell out of the window in fear ' she fell 47 feet and sustained life-threatening injuries
• Defendant convicted of GBH
• William (1992)
• Defendants picked up hitchhiker
• They were trying to rob him, so he jumped out of the moving car at 30mph, hit his head, and died
• They were convicted of constructive manslaughter
• The victim's actions have to be in proportion to the threat

Thin Skull Test

• The defendant must take the victim as they find them
• If the defendant hits the victim over the head with a blow that would usually cause no real harm but the victim has an unusually thin skull and dies, then the defendant is liable
• Blaue (1975)
• Defendant stabbed a girl four times when she refused to have sex with him (sounds like an incel to me)
• She was a Jehovah's witness and refused a blood transfusion that would've saved her life
• Defendant convicted of manslaughter
• He argued that she only died because she wouldn't have the blood transfusion
• Conviction upheld. She died because she was stabbed, not because she was a Jehovah's witness

Problems with causation

• The "more than a slight or trifling link" referred to in Kimsey (1996) is very vague
• If the victim refuses medical treatment that would save them, should the defendant be liable?
• The thin skull test means that the defendant is convicted of murder when there was no intention to kill