Causing Death Flashcards
Introduction
Sections 165 and 166 deal with causing death, either by not preventing death where that was possible, or by injuring someone so that they need treatment and their injuries cause their death.
165 - Causing death that might have been prevented
Every one who by any act or omission causes the death of another person kills that person, although death from that cause might have been prevented by resorting to proper means.
166 - Causing injury the treatment of which causes death
Every one who causes to another person any bodily injury, in itself of a dangerous nature, from which death results, kills that person, although the immediate cause of death be treatment, proper or improper, applied in good faith.
Preventable death
Section 165 imposes a liability on a person who is responsible for a death if an injury inflicted by him is an operative cause of death (directly or through some secondary condition such as tetanus), even though it could have been prevented with proper treatment
R v Blaue13 provides a clear example of this piece of legislation in practice The victim [a Jehovah’s witness] had been stabbed but refused to accept a blood transfusion on the ground that to do so would be contrary to her religious belief; despite a warning that she would die, she persisted in her refusal and in fact died on the following day.
The cause of death was bleeding into the pleural cavity caused by the stabbing. An appeal against a conviction of manslaughter, on the ground that her refusal to have a blood
transfusion was unreasonable and broke the chain of causation between the stabbing and her death, was dismissed.
The Court commented; “…It does not lie in the mouth of the assailant to say that his victim’s religious beliefs, which inhibited her from accepting certain kinds of treatment, were unreasonable. The question for decision is what caused her death. The answer is a stab wound. The fact that the victim refused to stop this end coming about did not break the causal connection between the act and death.”
R v Blaue [1975] 1 WLR 1411; [1975] 3 All ER 445
Those who use violence must take their victims as they find them.
When treatment of injury is fatal
Provisions for death caused by treating injury are in s166.
This provision covers situations where a person dangerously injures the victim and, as a result, treatment is administered to the victim, and that treatment is the immediate cause of the victim’s death. The person who caused the injury is liable for the injury and its consequences. The degree of that liability will rely on the mens rea element.
When treatment is sought for an injury and the injured person dies, the person who caused the original injury is liable for the death, even if the person has died as the result of improper treatment, so long as the treatment was applied in good faith. You also need to consider the liability of medical practitioners for failure to take care, as set out in s155, remembering however, that the test requiring gross negligence set out in s150A.
In R v Kirikiri14 it was argued that a charge of murder should not proceed because the reasonable inference from the evidence was that the treatment had not merely aggravated the victim’s condition but had caused death independently of the injuries which were “merely part of the history” rather than an “operating and substantial cause”.
The judge rejected this, holding that it was a matter of fact for the jury to decide whether the defendant had inflicted a dangerous bodily injury which remained an operating cause at the time of death. In the event, the jury acquitted of murder and convicted of attempt to murder.
Withdrawal of life support
In R v Tarei15 the Court held that the withdrawal of any form of life support system is not “treatment” under s166 Crimes Act 1961. To withdraw life support does not cause death but removes the possibility of extending the person’s life through artificial means.
An injury must remain a substantial cause of the death
The Court in an English matter, R v Jordan16, provides an example of a situation in which the original aggressor was held to not be liable for the ultimate death, as a matter of law:
Jordan stabbed a man in the chest. The wound was healing but the medical practitioner carelessly used a drug to which the patient was allergic and wrongfully carried out intravenous injections. The patient died from broncopneumonia brought on by the treatment.
In this matter The English Court of Appeal stated two rules:
- death resulting from any normal treatment employed to deal with a
felonious injury may be regarded as caused by the injury; - in other circumstances, it is a question of fact to establish a causal
connection between the death and the felonious injury;
In Jordan, the treatment was not normal; two separate treatments were palpably wrong and the treatment was the direct and immediate cause of death. The conviction was quashed. The treatment was so unusual that it broke the causal chain. In legal terms, the defence of novus actus interveniens was upheld.
Novus acus Interviens: [Latin: a new intervening act] An intervening act that breaks the chain of causation
However, R v Bristowe18 presents the alternative decision. In this matter a woman placed weed killer in a beer bottle to be drunk by her husband. The husband became ill and was treated in hospital for alcoholism over five days, and then died. Death was found to be due to the arsenic, and the Court ruled that the causal chain of responsibility was not broken by the unsatisfactory treatment.
This does not alter the position in New Zealand under ss165 and 166 of the Crimes Act 1961: the injury must remain a substantial cause of the death which grew from the subsequent effects and risks.
Examples
The following cases are further examples of s166:
- A person was wounded in a duel and died as a result of the surgical
operation made necessary by the wound. The person who inflicted the wound was guilty of murder. - The deceased had been severely kicked by the defendant. A surgeon gave the deceased some brandy to restore her, but some of it went into her lungs. It was suggested this was the immediate cause of death. However, the court held this did not affect the defendant’s criminal responsibility.
- It was necessary to operate on a person as a result of an assault on him by the defendant. The person died under the administration of
anaesthetic. It was held that this did not affect the defendant’s criminal responsibility.
