causation essay Q

Question 1

what is the central debate as to omissions

Answer 1

should be recognise a general duty to act for example where a child is drowning in shallow water where it would be easy for an adult to rescue should we have a general duty of rescue?

Question 2

What are the two solutions to imposing a Good Samaritan law?

Answer 2

1) new omissions based offence on the failure to perform easy rescue
2) build upon existing common law duties to create a citizenship duty to mandate a reasonable action where D is in a position to benefit the citizen

Question 3

What does Ashworth argue (in terms of omissions) the aw should take what view

Answer 3

the social responsibility view: there should be at least a duty to save those in peril, hedged with qualifications, so as to ensure obligation is not too onerous or dangerous/ this should be the preferred approach over the current conventional view

Question 4

What is the conventional view

Answer 4

Glanville Williams: It is the task of the law to repress active wrongdoings, not to bring the ignorant of lethargic up to scratch

Question 5

What is the argument against imposing a duty of general rescue

Answer 5

it would limit individual autonomy

Question 6

What does Williams argue in regard to autonomy

Answer 6

omission liability prevents someone from perusing all course of conduct that are not the action to avoid liability

Question 7

What does Ashworth argue about autonomy

Answer 7

Although it would restrict autonomy to some degree more than act-based liability, liability and the duty will only arise in very limited situations where V is in considerable danger with a low exception of what is expected of D. What is more, D may benefit from the duty himself one day

Question 8

At the present time why is it probably not possible for the criminal law to impose such a duty

Answer 8

limited resources therefore must focus on the most serious wrongdoings

Question 9

In omissions based liabitly why is there an issue with Art 7

Answer 9

it is unclear as to when duties end and begin. Art 7 principle of certainty and fair warning.

Question 10

Would a duty of rescue comply with Art 7

Answer 10

argued better than the current CL duties- a duty of rescue would be clear and simpler. Clear warning would be in that liability is imposed where D reasonably fails to act.

Question 11

Issue with factual causation

Answer 11

factual causation merely establishes a factual connection. R v Dalloway: -D was driving a horse and cart without holding onto the reins. A small child ran into the road and was killed. D was charged with MS but was acquitted. Although the child was killed by D’s cart which was being driven negligently, the death would have happened anyway in exactly the same way.
By asking the but for test alone, you can establish factual causation. However, this would not mean that the driver was necessarily responsible or to blame for the child’s death because even if he had been holding onto the reigns there would have been nothing he could have done.
Because factual causation alone would lead to convictions when D is not necessarily to blame, a more stringent test also needs to be satisfied.

Question 12

why is Hughes inconsistent with Dalloway

Answer 12

suggests that more than de minimise and some from of wrong doing

Question 13

problem with the language of factual causation

Answer 13

language is very varied from case to case

Question 14

Why is there a problem with medical negligence

Answer 14

In medical negligence cases- has the chain of causation been overstretched to secure a conviction as to who we think is morally to blame

Question 15

What is the argument for not imposing liability against doctors?

Answer 15

Vital role in society of medical staff, in high pressured emergency situations need to allow some leniency

Question 16

What was held in Smith

Answer 16

action of medical staff impeded V’s chance f recovery, his chances would have been better without his intervention. But this was an emergency situation

Question 17

What is the problem with cheshire?

Answer 17

unclear how so independent and so potent should be interpreted

Question 18

What does Jordan demonstrate

Answer 18

that doctor can break the chain of causation where the acts are so palpably wrong. however, this is very fact specific and has been considerably narrowed by Smith and Cheshire

Question 19

What happened in Empress Car Co:

Answer 19

D was liable despite the fact the pollution was voluntarily caused by a third party. Kennedy (2) clarified this- this decision is confined to cases of pollution alone. However, by allowing the decision even just in cases of pollution demonstrates and erosion of clear and precise rules of causation

Question 20

Why is Dear problematic in regard to foreseeability and voluntariness?

Answer 20

D’s conviction was upheld despite V’s voluntary and unforeseeable act in interfering with the wounds. Arguably an extension of the Blaue principle? Although V acted, D’s act would have caused death regardless if the wound was left untreated.

Question 21

Would suicide come within Blaue?

Answer 21

The CoA left open to possibility of find ;legal causation where D’s act would not have caused death, but with death resulting from V’s suicide ( Dawhalia) but would be hard to accept that future conduct is part of V. However, laibitly for causing death this way would not be unfair where for example V commits suicide after prolonged abuse, there would be a strong moral case that D caused death.

Question 22

Where else is there tension between foreseeability and voluntariness

Answer 22

Roberts, Kennedy.
IN Roberts accept that jumping for a car is foreseeable but also seems to be voluntary? However, it can be argued that V’s act is not voluntary because she was under threat from D, but is this any less voluntary than the consumption of a drug by an addict?

Question 23

Problem in Blaue

Answer 23

following Holland, V’s refusal of medical treatment was interpreted to part of of her characteristics rather than an NAI. D’s refusal was both unforeseeable (break the chain following Roberts) and voluntary (breaking chain per Kennedy). However, is the difference that V;s refusal is an omission- although not clear

Question 24

Problem with accepting religious beliefs

Answer 24

if religious beliefs can be considered to be part of character what else can be>

Question 25

What do Hart and Honore argue about religion

Answer 25

does the privilege of religion make Blaue inapplicable to other situations?

Question 26

What do Hart and Honore argue about the possibility of Blaue being applicable where V refuses due to fear of needles etc

Answer 26

fear may be unreasonable since medical advancements

Question 27

What is the main issue with forseeabilty and voluntariness

Answer 27

are the courts guided by legal principles or simply by their subjective moral intuitions.

Question 28

Are the current rules on causation satisfactory?

Answer 28

No, they try to make it simple but the principles are those of legal indivudalisms which require the supplementation by purposive policy readings, to reach decisions on individual cases and this leads to case law that is unstable and irrational - Norries, Crime, reason and history

Question 29

What does the draft criminal code propose to reform causation

Answer 29

Law Com (177) A person does not cause a result where after he does such an act or omission an event occurs that is (a) is the immediate and sufficient cause (b) which D did not foresee and (c) which in the circumstances would not have been reasonably foreseen.

Question 30

Why is the code positive

Answer 30

in that is suggests that D should not be relived if responsibility unless something occurred that was unforeseen and unforeseeable and sufficient to cause death. A codification would create a settled basis for the law and provide settled terminology

Question 31

why would Cl 17.2 require modification of Kennedy

Answer 31

where the reason for reliving D is linked to the voluntary nature of the V’s act rather than to a lack of forseeablity

Question 32

Why is the Law coms proposal not sufficient

Answer 32

It is largely a reflection of the current law so would do little to solve the uncertainty there currently is.

Question 33

What did Hart and Honore suggest how to reform causation

Answer 33

alternative distinction between normal causation conditions e.g. environment- which would not be legal causes and abnormal causation conditions, such as voluntary intervention which would constitute a legal cause and may break the chain of causation

Question 34

Why is Hart and Honore suggestion probably not sufficient

Answer 34

the distinction is not clear vague- a subjective test to perform an objective role?