Application Question 2012

Q3 – Discuss the criminal liability of Kai with respect to the incident with the digger (you should ignore the brain damage suffered as a result of the injection) Kai was using a mini digger to dig a trench on his drive. His neighbour, Lionel, saw what he was doing and started to make fun of Kai’s efforts. Kai lost his temper and spun the digger round to scare Lionel. Unfortunately, he caught Lionel’s jacket with the digger, pulling him down into a puddle. Lionel was not hurt, but did swallow some muddy water and started to vomit shortly afterwards. He went to the hospital where he as given an antibiotic injection. Unfortunately, Lionel suffered an allergic reaction to the antibiotic, which has left him with permanent brain damage.

Step 1 – read through scenario and identify possible offences? Ignoring the brain damage – potentially: Assault Battery S.47 Actual Bodily Harm

Offence 1 - Assault Identify: Kai could be liable for the offence of assault Define: Assault is a common law offence and was defined in Ireland as when D intentionally or recklessly causes the victim to apprehend immediate and unlawful violence Explain: We first need to establish that there has been an act. An “act” can be actions, gestures, words or silence Apply: In this case Kai’s act was to swing the digger E – we then need to consider whether Kai’s act of swinging the digger has caused Lionel to apprehend immediate unlawful violence. Considering apprehension first, Lionel does not need to fear unlawful violence only to apprehend which means an expectation or anticipation. A – from the facts of this scenario, it is very difficult to establish whether there was any apprehension by Lionel as we are not told whether Lionel was facing Kai and whether he saw the digger spin round. If he did not see the digger there would be no apprehension of violence and therefore no assault. Assuming Lionel did see the digger swing towards him then he would have apprehended violence and this would have been caused by the act of spinning the digger E – We then need to establish whether the violence that Lionel apprehended was immediate. This has been given a wide interpretation under Smith v Chief Superintendent of Woking Police Station and immediate does not need to be instantaneous A – in this case if Lionel did see the digger come towards him the violence he would apprehend would be classed as immediate E – Next we must establish that the violence that Lionel apprehended was unlawful violence and this can be a mere touch, provided it is unwanted A – the violence Lionel would have anticipated from the digger being spun towards him would ne at the least a mere touch and certainly unwanted, therefore this would be unlawful violence E – The mens reas for assault is intention to cause the victim to apprehend unlawful and immediate violence (Savage) A – we are told that Kai “spun the digger to scare Lionel” and therefore he had direct intent to make him apprehend the unlawful violence. C- Provided Lionel did see the digger being spun towards him, Kai would most likely be liable for assault

Offence 1 - Assault Kai could be liable for the offence of assault. Assault is a common law offence and was defined in Ireland as when D intentionally or recklessly causes the victim to apprehend immediate and unlawful violence. We first need to establish that there has been an act. An “act” can be actions, gestures, words or silence. In this case Kai’s act was to swing the digger. We then need to consider whether Kai’s act of swinging the digger has caused Lionel to apprehend immediate unlawful violence. Considering apprehension first, Lionel does not need to fear unlawful violence only to apprehend which means an expectation or anticipation. From the facts of this scenario, it is very difficult to establish whether there was any apprehension by Lionel as we are not told whether Lionel was facing Kai and whether he saw the digger spin round. If he did not see the digger there would be no apprehension of violence and therefore no assault. Assuming Lionel did see the digger swing towards him then he would have apprehended violence and this would have been caused by the act of spinning the digger. We then need to establish whether the violence that Lionel apprehended was immediate. This has been given a wide interpretation under Smith v Chief Superintendent of Woking Police Station and immediate does not need to be instantaneous. In this case if Lionel did see the digger come towards him the violence he would apprehend would be classed as immediate. Next we must establish that the violence that Lionel apprehended was unlawful violence and this can be a mere touch, provided it is unwanted. The violence Lionel would have anticipated from the digger being spun towards him would ne at the least a mere touch and certainly unwanted, therefore this would be unlawful violence. The mens rea for assault is intention to cause the victim to apprehend unlawful and immediate violence (Savage). We are told that Kai “spun the digger to scare Lionel” and therefore he had direct intent to make him apprehend the unlawful violence. Provided Lionel did see the digger being spun towards him, Kai would most likely be liable for assault

Offence 2 - Battery I & D - Kai could also be liable for battery which is also a common law offence defined in Ireland as the application of unlawful physical force to another. E - The first thing which must be shown is that there was force and “any touching of another person, however slight, may amount to battery” (Collins v Willcock). Furthermore, touching clothes can amount to a battery (Thomas). A - We are told that the digger caught Lionel’s jacket and therefore the element of force is satisfied. E - We also need to show that the force applied was unlawful, which usually means without the consent of the victim (V). A - From the facts of the scenario, it is clear that Lionel did not consent to being touched by the digger and therefore this force is unlawful E - The Mens Rea for battery is intent or subjective recklessness to apply force to another (Venna) and D does not need any intent or recklessness as to harm – only the unlawful force. A - In this case, although it suggests that Kai caught Lionel’s jacket by accident and that his intent was to scare Lionel only, he was subjectively reckless in swinging the digger towards Lionel as he must have foreseen some risk in applying force to Lionel (by the digger touching him) but clearly took that risk anyway. C – it is likely that Kai would also be found guilty of battery.

Offence 3 – S.47 Actual Bodily Harm I & D – Finally, Kai could be liable under S.47 Offences Against the Persons Act 1861 (OAPA) for assault occasioning actual bodily harm E – we must first determine that there has been an assault, and this related to common assault so can either be an assault or battery. A – as already established, there is almost certainly a battery on Lionel and potentially also an assault if Lionel saw the digger swing towards him E – the assault or battery must occasion actual bodily harm and this is an issue of causation, which means that the harm must be caused by the initial assault or battery. A – as we are only considering the incident with the digger, there are no intervening acts between Kai’s assault (swinging the digger towards Lionel) or Kai’s battery (catching Lionel’s jacket with the digger) and pulling him down into the puddle, causing him to swallow muddy water and start to vomit E – For S.47 OAPA to be found, there must be some form of physical or psychiatric injury caused to V. This can include “any hurt or injury calculated to interfere with the health or comfort of the victim” but must be more than “transient or trifling” (Miller) and also harm which is more than trivial (Chan Fook) A – Lionel started vomiting from swallowing the muddy water and this may be classed as more than trivial as he required hospital treatment E - The case of Roberts confirmed that the only Mens Rea required for S.47 OAPA is the mens rea for the original assault or battery and there is no need for D to foresee or be reckless to any harm. A - Therefore, as mens rea for the both the assault and battery have been established, these would apply here, even though it is highly unlikely that Kai foresaw or was reckless to the harm suffered by Lionel. C – Kai would therefore most likely be liable for S.47 OAPA.

Q 4 – Discuss whether Kai caused Lionel’s brain damage D - To establish whether Kai caused Lionel’s brain damage, we would need to establish both factual and legal causation. E - Factual causation is established where the consequence would not have happened “but for” D’s act. This is seen in Pagett where D used his girlfriend as a human shield while he shot at armed police, who fired back and killed girlfriend. D was convicted of girlfriend’s manslaughter as she would not have died “but for” his actions A - In this case that would mean the brain damage to Lionel would not have happened but for Kai’s act of swinging the digger towards him. As Kai’s act set off the string of events which led to Lionel’s brain damage, the “but for” test is satisfied. Legal causation means that the link between act and the consequence is the “chain of causation” and must remain unbroken. D’s actions must remain the “operating and substantial” cause of the circumstance (Smith). There must also not be a Novus Actus Interveniens from which breaks the chain of causation. For and NAI to break the chain of causation, D’s act needs to no longer be a significant cause of the consequence. In Jordan D stabbed V who was taken to hospital. A week later, the wound was almost healed, doctors gave V an incorrect injection and he died. It was held that as the medical treatment was “palpably wrong” the chain of causation was broken and there was no legal causation. The original injury was not the operating and substantial cause of death In this case Lionel went to the hospital after suffering vomiting caused by Kai’s assault and was given an anitibiotic injection which he was allergic to, causing permanent brain damage. The only way that this would be held to break the chain of causation is if the medical treatment received by Lionel was palpably wrong which would depend on whether his allergy was easily discoverable by medical staff before administering the injection Finally the re is a general principle that you have to take your victim as you find him (Blaue ) This means that the fact that Lionel had an underlying allergy which meant that the injection caused an allergic reaction will not break the chain of causation as Kai has to take his victim as he finds him, including his allergies.