LAW 02- Criminal AS
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The physical part of the crime e.g. in murder shooting/stabbing/killing.
Must be Voluntary act - control of own body, so if pushed over in que/ sleepwalk not an AR
Usually a positive act - (something you do)but 4 exceptions where FAILURE TO ACT/ OMISSION TO ACT can be AR
1. Parents and children
2. Assuming Responsibility (R v Stone & Dobson) took in elderly couple failed to feed = AR for manslaughter.
3. Contractual Duty - (R V Pittwood). Worked on railway failed to lift level crossing barrier when train came or lifeguard in pool.
4. Where create danger have obligation to put it right. (R v Miller) Where set fire to mattress and then left room.
Breach - Reasonable Man
The Defendant has to behave as a "reasonable man
" Blythe V Birmingham
Standard - If a person claims expertise must behave as a reasonable expert. Wells V Cooper
Objective test - can't take into account weaknesses of individual defendant. Wilshere V Essex (junior doctor)
- Standard Practice - the def has to follow standard practice. in Whitehouse V Jordan baby injured - def was not in breach had followed correct procedure.
Breach - risk factors
- Forseeability of harm - Roe v Ministry of Health
- if risk is unforeseeable reasonable man can't be expected to take precacutions,
Likelihood of harm to a particular group
- Likelihood of harm - Bolton V Stone
- if risk is unlikely the reasonable man does less to guard against it.
- Haley V L.E.B
if group is vulnerable reasonable man expected to do more.
Cost of precaution - Latimer V AEC - If cost of precaution high reasonable man may take this into account.
- Seriousness of harm - Paris V Stepneyif risk of harm is serious reasonable man must do more to protect.
Remoteness of Damage
Under the principle of Wagonmound
the Def will not be able to claim for a loss or injury which is not foreseeable from the Breach.
- Case of Wagonmound
- - ship spilt oil
- -mixed with cotton
- - mixture floated over towards Wharf where men were welding
- -Explosion = destruction of Wharf
Damage only has to be type that is foreseeable. Hughes V Lord Advocate (gas company paraffin lamps)
Where the Claimant was suffering from a physical psychological weakness the def is still liable even if damage is not foreseeable. Smith V Leachbrain (burn skin cancer)
Res Ipsa Loquitor
Literally translates to "the thing speaks for it's self"
Normally in civil trial the burden of proof is on the Claimant. The claimant must prove their case on a balance of probability. however in vary rare cases the burden of proof is reversed and it is the defendant who must prove they were not in breach.
- source of law: 1865 Scott v St Katherines Dock
- - Heavy bag of sugar fell out warehouse window injured claimant. For there to be need to use res ipsa loquitor...
a) need to be no explanation as to HOW OR WHY it happened
b) must be the type that doesn't happens if PROPER CARE is taken.
c) what caused the accident must be under EXCLUSIVE CONTROL of owner.
Civil Law Causation
Barnet V Chelsea - (but for test) man went to hospital complaining of stomach pains. negligently sent away . later died of arsenic poisoning - even though hospital in breach - he would have die anyway as there is no cure.
Sayers V Harlow - (intervening acts) - woman stuck in toilet due to defective lock. She tried to climb out and hurt leg. intervening act of her trying to climb out of loo was foreseeable so makers of lock were liable.
Remoteness of damage - the thin skull rule def will be held liable even when claimant is particularly vulnerable or had a pre- existing weakness which results in them suffering greater injury than a normal person would. Smith V Leachbrain
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