Omission to act - HELP.
Apologies in advance for what is probably profoundly stupid.
But when an omission to act constitutes the actus reus, is it necessary to talk about factual and legal causation? I'm pretty sure it isn't, and can't really see anyway you could talk about causation if the act wasn't positive.
For example: Lifeguard fails to save boy from drowning because he is flirting with a group of girls. Boy dies. No positive act, but possibly a contractual duty breached from an omission. Is this all I have to talk about? How could I talk about Legal or factual causation in the case of an omission?
Factual: But for his omission, would the boy have died? - Surely this is impossible to determine.
Legal causation: Cannot see how you can talk about an intervening act ( when the lifeguard comitted no positive act which could be intervened) and as for the harm being substantial and operating...
?
Probably being vacuous. Clarification would be greattt!
But when an omission to act constitutes the actus reus, is it necessary to talk about factual and legal causation? I'm pretty sure it isn't, and can't really see anyway you could talk about causation if the act wasn't positive.
For example: Lifeguard fails to save boy from drowning because he is flirting with a group of girls. Boy dies. No positive act, but possibly a contractual duty breached from an omission. Is this all I have to talk about? How could I talk about Legal or factual causation in the case of an omission?
Factual: But for his omission, would the boy have died? - Surely this is impossible to determine.
Legal causation: Cannot see how you can talk about an intervening act ( when the lifeguard comitted no positive act which could be intervened) and as for the harm being substantial and operating...
?Probably being vacuous. Clarification would be greattt!
If you're referring to negligence yes, you would need to talk about causation etc. to back up that the negligence is the actus reus. You really can't escape that.
This looks like a straightforward application of Pittwood and the "but for" test to me.
Can it be shown beyond all reasonable doubt that "but for" the lifeguard's omission the boy would have lived? Causation done.
edit: the water would also be a cause of death. That isn't really relevant to the lifeguard's liability, though. You don't need to think about concurrent causes. You don't need to consider the words "substantial and operating".
Can it be shown beyond all reasonable doubt that "but for" the lifeguard's omission the boy would have lived? Causation done.
edit: the water would also be a cause of death. That isn't really relevant to the lifeguard's liability, though. You don't need to think about concurrent causes. You don't need to consider the words "substantial and operating".
(edited 12 years ago)
Original post by TimmonaPortella
This looks like a straightforward application of Pittwood and the "but for" test to me.
Can it be shown beyond all reasonable doubt that "but for" the lifeguard's omission the boy would have lived? Causation done.
edit: the water would also be a cause of death. That isn't really relevant to the lifeguard's liability, though. You don't need to think about concurrent causes. You don't need to consider the words "substantial and operating".
Can it be shown beyond all reasonable doubt that "but for" the lifeguard's omission the boy would have lived? Causation done.
edit: the water would also be a cause of death. That isn't really relevant to the lifeguard's liability, though. You don't need to think about concurrent causes. You don't need to consider the words "substantial and operating".
OK, thanks.
So I don't have to talk about legal causation? How about if, for example, a teacher takes children to a science trip and when one child enquires about whether or not they can eat a particular berry they found on the floor and she says 'It's probably ok, but I wouldn't''. The child then proceeds to eat it and dies later. Is she guilty? she was negligent arguably, but did the childs autonomy to eat the berry break the chain of causation?
Original post by TheCount.
OK, thanks.
So I don't have to talk about legal causation? How about if, for example, a teacher takes children to a science trip and when one child enquires about whether or not they can eat a particular berry they found on the floor and she says 'It's probably ok, but I wouldn't''. The child then proceeds to eat it and dies later. Is she guilty? she was negligent arguably, but did the childs autonomy to eat the berry break the chain of causation?
So I don't have to talk about legal causation? How about if, for example, a teacher takes children to a science trip and when one child enquires about whether or not they can eat a particular berry they found on the floor and she says 'It's probably ok, but I wouldn't''. The child then proceeds to eat it and dies later. Is she guilty? she was negligent arguably, but did the childs autonomy to eat the berry break the chain of causation?
Hmm, well these are different situations; in one case the omission was after the victim's own act which you think could potentially be a novus, in the other before. Only in the latter case could it potentially be a novus.
I don't think the child's decision to eat could constitute a novus because it wasn't informed -- he didn't make a free, deliberate and informed decision to bring about death.
Though I think this raises an interesting point, and I'd like to see if any other posters could bring direct criminal authority to this -- what can constitute a novus by C where the duty is to look after the welfare of C? A combination of empress car and tort cases like reeves v mpc would suggest to me that nothing the child did could constitute a novus.
On negligence cases, a systematic approach must be taken. Don't miss the forest for the trees. Do you agree?
First, was there a duty of care, arising from? Established?
Second, standard of care? Cite similar professional standard cases.
Was there a breach of this standard? Argue on the facts.
The legal cause of death is omission to act, Donaghue, period. Now, to what extent as a matter of policy, Caparo satisfaction of reasonable foresseabilty, in such cases, the defendant should be liable? Argue.
First, was there a duty of care, arising from? Established?
Second, standard of care? Cite similar professional standard cases.
Was there a breach of this standard? Argue on the facts.
The legal cause of death is omission to act, Donaghue, period. Now, to what extent as a matter of policy, Caparo satisfaction of reasonable foresseabilty, in such cases, the defendant should be liable? Argue.
(edited 12 years ago)
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