David is charged with the murder of Victor. To be found guilty of murder, one must fulfil both requirements of actus reus and mens rea. The actus reus in the case of murder is a voluntary, unlawful act, that was a significant cause of death (but not necessarily the only cause of death). The mens rea requires that the defendant had either an intent to kill, an intent to cause grievous bodily harm (next referred to as ‘GBH’), or foresaw death or GBH as virtually certain to occur. One last thing should usually be considered: whether the defendant has any relevant defence; this will not be considered in this particular problem.
Therefore, the question here is to wonder whether 1) David’s action was a substantial cause of Victor’s death; 2) David had the intention to kill or cause GBH to Victor.
Causation has two requirements. First of all, factual causation (sine qua non causation) can be tested with the ‘but for’ test, as presented in White: would the death have occurred, but for the actions or omissions of the defendant ? Second of all, the legal causation requires the conduct to be a ‘significant cause’ of the death. To negate the legal causation, it must be proven that a ‘free, deliberate and informed’ action (novus actus interveniens) from a third party extinguishes the operating nature of the cause, as explained in Kennedy.
In this case, we should first wonder about the factual causation. The facts are that, after being charged by David, Victor felt unconscious to the ground, after hitting his head on the corner of a table. David then kicked Victor in the ribs. When taken to the hospital, Victor is still alive but ‘is suffering from significant internal bleeding , both from the head and chest’. However, Victor died of a heart attack consecutively to an allergy to the medication that was given to him at the hospital. One can say that, ‘but for’ David’s conduct, Victor would not have needed anti-bleeding medication, and therefore would not have died because of his allergy to this medication. The death of Victor is not too remote from David’s conduct. We can therefore state that the factual causation will be established by the jury.
As for the legal causation, the fact that Victor was still bleeding internally leads to thinking that David’s conduct was still an operating cause at the time of death. It is reasonable to think that an internal bleeding is a serious harm that can cause death if not correctly treated. Victor had not started to heal when he died. Therefore, David’s conduct was also substantial at the time of death. Nothing can prove that, but for Dr Hapless’s conduct, Victor would not have died from his wounds. According to Smith, if the defendant’s conduct is still an operative cause at the time of death of the victim, the causation of actus reus for murder is upheld. Cheshire confirms that, stating that intervening medical treatment only excludes responsibility of the defendant if it was both totally independent of the defendants conduct, and so potent in causing the death that the original conduct would be considered as insignificant. Therefore, it will likely be that the jury considers that David committed the actus reus of murder.
Now, onto the mens rea. Mens rea for murder requires either an intention to kill or an intention to cause grievous bodily harm. Intention of GBH exists when the defendant intended to cause ‘really serious injury’ to someone: the appreciation of what ‘really serious’ means is usually left to the jury, but ‘examples of what would usually amount to really serious harm include: (…) broken or displaced limbs or bones, including fractured skull, compound fractures, broken cheek bone, jaw, ribs, etc; injuries which cause substantial loss of blood, usually necessitating a transfusion or result in lengthy treatment’ in the charging standards of the Crown Prosecution Service.
David’s conduct can be decomposed in two parts. First, he charged Victor in reaction to the threat that Victor represented for him (pulling a knife and orally threatening him). Victor then hits his head on the corner of a table and falls to the ground. Mens rea is approached subjectively, which means that the jury has to put themselves in the situation of the defendant, because criminal liability is established on the base of what the defendant believed they were doing or risking, and not on facts that they were not aware of at the time of their conduct. By doing so, it would be commonly considered that David did not want to kill or harm grievously Victor when charging him. He just wanted to defend himself and to throw him to the floor. However, liability can also be based on fault elements involving judging people after a conduct considered as ‘grossly negligent’, or as having shown ‘a lack of care and attention’. One could argue that it would be reasonable to consider the possibility of the victim to hurt himself on the corner of a table. However, it is very unlikely to get someone killed from pushing them. Therefore, the jury would probably not take this supposedly foreseeable risk into consideration.
The second step of David’s conduct is to kick Victor in the ribs when he hears the sirens of the police before leaving the bar. Given that Victor suffers internal bleeding consecutively to David’s kick in the ribs, one can assume that the kick was quite strong. It is likely that a strong kick in the ribs may break some of them. Given the charging standards of the Crown Prosecution Service, this would account for a GBH. Moreover, David, once Victor was lying on the ground, has no reason whatsoever to hurt him again. Therefore, given the intensity of the kick and the lack of other justification, one can consider that he had the intention to cause GBH to Victor.
Therefore, it is likely that, given the presence of the requirements for both actus reus and mens rea, and that for the purpose of this problem, defences are not considered, a jury would probably consider that David is liable for the murder of Victor.
B. Discussion about Dr. Hapless’s liability for the actus reus of murder
Onto the possibility that Dr. Hapless committed the actus reus of murder. As mentioned earlier, the actus reus of murder requires both factual and legal causation. It can be linked to the actus reus of manslaughter, given that the difference between manslaughter and murder depends on the mens rea.
In tort law, a doctor is liable when he 1. owes a duty of care to the patient (which a doctor always does); 2. breaches this duty of care; 3. causes harm from this breach of duty. However, in order to be criminally liable, his carelessness must be so severe that it is considered ‘gross’. What is viewed as ‘gross’ has been established by Lord Mackay in Adomako: ‘The jury will have to consider whether the extent to which the defendant's conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the patient, was such that it should be judged criminal.’
First of all, as before, let’s test the factual causation. ‘But for’ Dr. Hapless’s conduct, would Victor have died ? The facts are that Victor was significantly bleeding internally both from the head and from the chest. The question here is almost a medical one. Is it likely that one dies when suffering this type of injuries, and when given quick medical assistance ? We don’t have much specification about what type of injury Victor precisely suffered from. Therefore, it is extremely difficult to estimate whether, ‘but for’ Dr. Hapless’s negligence, Victor would have survived.
The other question is, was Dr. Hapless’s decision to cure Victor ‘grossly negligent’ ? He correctly diagnoses Victor’s condition, and administers the recommended treatment for internal bleeding. Besides, it doesn’t look like Victor was carrying his health record with him when he got in the hospital. Moreover, placebiamin is not a common substance, and it is unlikely that Victor was ever diagnosed with this allergy. Finally, one could argue that Dr. Hapless could have tested Victor’s potential allergies before administering the treatment, but in this situation, Victor needed urgent treatment, and waiting for too long in the case of internal bleeding most certainly endangers the life of the patient. With all these elements, it is likely that a jury would not consider Dr. Hapless’s conduct so ‘departed from the proper standard of care’, as to consider that he was responsible of the death of Victor. Therefore, the difficult question of causation doesn’t really need to be asked, because anyway, Dr. Hapless acted in a reasonable way and could not be seen as responsible for Victor’s death. Therefore, a jury would probably not consider that he committed the actus reus of murder.