3.2.3 Manslaughter Lecture – Hands on Example
The following scenario aims to test your knowledge of this subject and your ability to apply the law you have learned in a practical context.
Have a read of the following passage and try to identify any material facts and potential legal issues. It might help to highlight these and jot down any ideas or relevant case law that springs to mind as you read. Once you have done this, if you feel confident have a go at putting together an answer.
If you don’t feel confident just yet, don’t worry. This takes a lot of practice and if this is the first time you have had a go it will be hard. A step by step outline answer is provided below which contains pointers as to how you need to go about it. Use this as guidance to produce or to check your own answer.
Referring back to the notes for this section should to help you. There is nothing raised in this answer that we haven’t already covered together so you have all the tools you need to do a really good job!
John is walking home from work one day through the park when he sees his boss Jane across the other side of the path. John is angry at Jane as she did not give him the promotion he recently applied for. Jane’s back is turned and she is distracted talking on the phone. John senses an opportunity to run up behind Jane and push her into the pond so that she will get a bit of a fright and ruin her clothes. John knows he will then be able run off again before she sees.
John takes his chance and Jane is pushed into the pond. Jane struggles to get out and shouts for help. Bill walks past on his way home and decides that if he stops and helps Jane he won’t be back in time for Eastenders so walks quickly past. As a result of this Jane is in the water for some time before Dave eventually walks by and helps her out. Dave is a trained first aider and advises Jane that she needs to go to hospital as she has been exposed to the cold for some time and may have swallowed some of the pond water. Jane ignores Dave as she too is a big Eastenders fan and is keen to get home to catch the last few minutes of that evening’s episode.
Over the next few days Jane becomes very unwell and a week later she finally visits the hospital whereby she is taken in straight away as she is in a critical condition. Unbeknown to Jane she suffers from a deficiency in white blood cells which means her immune system is severely weakened. The bacteria in the dirty pond water would not be particularly harmful to most people but due to Jane’s weak immune system it has made dangerously unwell.
Whilst being treated in hospital Jane’s doctor Samantha gives fails to give Jane a lifesaving antibiotic and instead gives it to Steve the patient in the bed next to her. Steve reacts badly to the drug and falls into cardiac arrest. Samantha fails to realise this as she is busy talking to another patient. Steve dies and a few hours later Jane too passes away as her body is unable to fight off the infection. Medical experts stated that the antibiotics would have saved her life.
Discuss the liability of John for unlawful and dangerous act manslaughter and Samantha’s liability for gross negligence manslaughter.
- First identify the base offence, in this case Battery. Does John have the requisite actus reus and mens rea for the offence?
-Actus reus: Unlawful application of force
-Mens rea: Intention to apply such force
- Once this offence has been established you then need to discuss whether the offence would cause a reasonable person to believe at the time of pushing Jane that some harm may arise from this (R v Church  1 QB 59). Remember the specific type of harm need not be foreseen (R v JM and SM  EWCA Crim 2293). It is likely that this will be answered in the affirmative, however if you feel there is a counter argument, raise it as this shows good critical application of the law, before moving on to the next stage. Do not conclude here though as you need to discuss all elements of the offence. Keep it open ended at this stage.
- You then need to establish whether John caused Jane’s death. To do this, first apply the test for factual causation. But for John pushing Jane would Jane have died as and when she did? (R v White  2 KB 124).
- Next establish legal causation. Was John’s act an operating and substantial cause of Jane’s death (R v Smith  2 QB 35)? To answer this, follow the chain of causation and identify any possible novus actus interveniens:
-Bill’s refusal to help Jane get out of the pond: Consider here that only a third party act will break the chain. This is clearly an omission and as the law imposes no Good Samaritan obligation, Bill has done nothing wrong.
-Jane’s medical condition:Apply the thin skull principle using an application ofR v Hayward(1908) 21 Cox 692 or any other suitable case you may come across during your reading. John must take Jane as he finds her and her medical condition will have no bearing on this.
-Failure to provide the lifesaving antibiotics:Use an application of R v Smith  2 QB 35andR v Jordan (1956) 40 Cr App R 152. Only palpably wrong medical treatment will break the chain. Negligent treatment will not. Critically apply these cases to the facts in the present situation. Draw comparisons between the sets of fact to conclude as to whether the medical treatment will be classed as palpably wrong and thus break the chain.
- Having applied the law to each possible novus actus interveniens conclude as to whether the chain been broken or John’s act remains an operating and substantial cause of Jane’s death? There is no right or wrong answer here. Provided you have followed the steps outlined and reasoned your application of the law clearly you will receive good marks for your answer no matter which conclusion you reach.
- Establish a duty of care. A doctor patient duty is well established and as this is not a tort exam you will not need to demonstrate awareness of the presiding authority, R v Adomako  3 WLR 228 and Bolam v Friern Hospital Management Committee  1 WLR 582 will be suitable. A simple, brief application of the Caparo test will also suffice but keep it concise and do not expend too many words on this as this is not where the marks are.
- Establish a breach of that duty. Apply Bolam, would a reasonable body of opinion of doctors consider that the standard of care exhibited fell short of the standard considered as proper practice? This should be a straight forward, yes. Don’t expend too many words on this. Apply the Bolam test and move on. Keep it concise.
- Apply briefly the tests for factual and legal causation as above using White and Smith. There are no contentious intervening events so there is no need to expand of this further.
- Now assess the level of negligence. State that only gross negligence will suffice for the purposes of a criminal conviction. Was the standard of care demonstrated by Jane during the chain of events that occurred so negligent that it should be classed as criminal? Apply the case law of Adomako, R v Bateman (1925) 19 Cr App R 8 and R v Misra and Srivastava  1 Cr App R 328 and discuss. Ultimately, answering whether the standard of care exhibited fell so far below the standard expected of a reasonably competent and careful person that it was truly, exceptionally bad and showed ‘such indifference’ to an obviously serious risk of life.
- Conclude as to Samantha’s liability.
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