INVOLUNTARY MS
- Created by: Jack Cohen
- Created on: 18-03-14 22:52
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- INVOLUNTARY MS
- UNLAWFUL ACT MS
- 1) D MUST DO UNLAWFUL ACT
- Must be an ACT = Unlawful
- NOT Omission
- Khan v Khan
- Omission to get help wasn't unlawful act.
- Khan v Khan
- Franklin 1883
- HELD: Civil wrong NOT enough create liability for unlawful act MS
- Larkin 1943
- HELD: D Committed Assault - Dangerous because likely injure someone - Guilty MS
- NOT a Civil Wrong
- 2) ACT MUST BE DANGEROUS ON OBJECTIVE TEST
- CHURCH Test 1965
- Unlawful act must be such that a SOBER + REASONABLE person would inevitably recognize AND must subject the other person to do, at least, the risk of some harm resulting therefrom, albeit not serious harm.
- Unlawful act needn't be aimed at V (TRANSFERRED MALICE)
- Mitchell 1983
- D punched man whom fell into V (86 old women) + caused her to fall. She died from Injuries. TM
- Mitchell 1983
- Act needn't be aimed at a person.
- Goodfellow 1986
- Fire out of control + caused death. CA said ALL elements UAMS present - Guilty
- Goodfellow 1986
- Dawson
- Judge direct Jury - 'Harm' meant either 'Emotional or Physical disturbance'.
- COA HELD: 'Emotional disturbance' on its own not enough to amount to harm
- Watson
- Act of Burglary = dangerous as soon as old man's condition would become apparent to the reasonable man.
- CHURCH Test 1965
- 3) UNLAWFUL ACT MUST CAUSE DEATH
- Normal rules of causation apply.
- If intervening act breaks chain causation then D CANNOT be guilty unlawful act MS
- Cato 1976
- By injecting V - D committed unlawful act. Injection caused death = D liable MS
- 4) MENS REA
- MR required is that required for an unlawful act.
- Not necessary to show any intention to kill (or foresight death may occur)
- Le Brun 1991
- CA HELD: Even though original punch DIDN'T cause death. The act of punching + the act that caused her death were part of "the same sequence of events". The fact that original punch was intentional was enough.
- MR required is that required for an unlawful act.
- 1) D MUST DO UNLAWFUL ACT
- GROSS NEGLIGENCE MS
- Adomako 1995
- The elements of gross negligence MS were RESTATED in this case.
- CAN be an act AND omission
- AR - Death arising from grossly negligent act of D.
- MR - Gross negligence of D
- ELEMENTS
- 1) DUTY OF CARE
- Donoghue V Stevenson 1932
- STATED: Duty of Care owned to - " persons who are so closely + directly effected by my act that I ought reasonably have them in contemplation as being so affected when I am directing my mind to acts or omissions that are called into question"
- Stone V Dobinson 1977
- D's voluntary undertook duty + breached it.
- Singh 1999
- Court recognized - duty of care for landlord to manage and maintain his property
- Khan V Khan 1998
- Could be duty to summon medical assistance in some circumstances.
- Willoughby 2005
- CA confirmed: D + V were engaged in criminal act (burning down D's building) didn't prevent D owing V duty of care
- Donoghue V Stevenson 1932
- 2) BREACH OF DUTY BY GROSS NEGLIGENCE
- A) Lord Mackay (In Adomako) - approved the Bateman test (1925)
- Stated that negligence is gross: "Whether the conduct of the D was so bad in all the circumstances as to amount to a criminal act or omission"
- B) Jury should decide whether risk of death involved the conduct of D being so bad that it should to amount to a criminal act/omission.
- C) Jury must consider seriousness of the breach of duty in all circumstances where D was placed at the time.
- Negligence MUST be Gross
- A) Lord Mackay (In Adomako) - approved the Bateman test (1925)
- 3) GROSS NEGLIGENCE MUST BE SUBSTANTIAL CAUSE OF DEATH
- Apply rules of Causation
- 4) RISK OF DEATH
- Misra & Srivastava 2004
- Confirmed that according to ADOMAKO there must be a risk of death.
- Misra & Srivastava 2004
- 5) MENS REA
- D's Behaviour judged by:
- Standards of reasonable man, and therefore an objective standard
- Therefore:
- D's state of mind not relevant
- Confirmed: A-G Ref No.2 1999
- D's state of mind not relevant
- Therefore:
- Standards of reasonable man, and therefore an objective standard
- Stone and Dobinson
- Convicted MS of first appellant's sister, Fanny. D's were reckless as to the "health + welfare" of the Sister who died.
- Edwards (2001)
- Parents (D's) allowed 7 year old daughter + friend play on railway + promised warn them if train approached. Children killed by train not seen by D's. - GNM - convicted by Jury.
- D's Behaviour judged by:
- 1) DUTY OF CARE
- Adomako 1995
- UNLAWFUL ACT MS
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