causation essay Q Flashcards
(34 cards)
what is the central debate as to omissions
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?
What are the two solutions to imposing a Good Samaritan law?
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
What does Ashworth argue (in terms of omissions) the aw should take what view
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
What is the conventional view
Glanville Williams: It is the task of the law to repress active wrongdoings, not to bring the ignorant of lethargic up to scratch
What is the argument against imposing a duty of general rescue
it would limit individual autonomy
What does Williams argue in regard to autonomy
omission liability prevents someone from perusing all course of conduct that are not the action to avoid liability
What does Ashworth argue about autonomy
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
At the present time why is it probably not possible for the criminal law to impose such a duty
limited resources therefore must focus on the most serious wrongdoings
In omissions based liabitly why is there an issue with Art 7
it is unclear as to when duties end and begin. Art 7 principle of certainty and fair warning.
Would a duty of rescue comply with Art 7
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.
Issue with factual causation
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.
why is Hughes inconsistent with Dalloway
suggests that more than de minimise and some from of wrong doing
problem with the language of factual causation
language is very varied from case to case
Why is there a problem with medical negligence
In medical negligence cases- has the chain of causation been overstretched to secure a conviction as to who we think is morally to blame
What is the argument for not imposing liability against doctors?
Vital role in society of medical staff, in high pressured emergency situations need to allow some leniency
What was held in Smith
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
What is the problem with cheshire?
unclear how so independent and so potent should be interpreted
What does Jordan demonstrate
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
What happened in Empress Car Co:
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
Why is Dear problematic in regard to foreseeability and voluntariness?
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.
Would suicide come within Blaue?
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.
Where else is there tension between foreseeability and voluntariness
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?
Problem in Blaue
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
Problem with accepting religious beliefs
if religious beliefs can be considered to be part of character what else can be>
