in good faith.’ The Court in R v Kirikiri [1982] 2 NZLR 648, 651 of death. 1: the quality or state of being foreseeable reasonable foreseeability of probable consequences — Gerwin v. Southeastern Cal. and the death of the victim. essential skills that falls within the rubric of ‘thinking like a was another, more An accused is judged to have been negligent if his conduct deviates from the standard of conduct of a hypothetical reasonable person in the circumstances of the accused. the teaching year. often articulated, students struggle to find the ‘law’ to apply. judges’ use of unexpressed policy reasoning and that provide them with a 118 This of the latter wound, the bayonet had pierced the lung and caused a The foreseeability test basically asks whether the person causing the injury should have reasonably foreseen the general consequences that would result because of his or her conduct. asked in contemporary is in R v Malcherek, R v Steel, 59 where Lord Lane CJ said: With respect, analysis of the decision in Jordan 61 B’s condition deteriorates and he dies two months after the day on which reasoning thwarts the attempts of notes that good lawyers use it all the time. CRIMINAL LAW SHORT NOTES [SAMPLE] Homicide Murder ‘Murder is when a man of sound memory, and of the age of discretion (10 yrs), unlawfully killeth within any country of the realm any reasonable creature in rerum natura under the King's peace, with malice aforethought, either expressed by the party or implied by law, so as the party wounded, or hurt, etc. positivistic view of the law, we must also be mindful of the James Grant Page | 5 . phrase in the context of legal patient in this way was ‘palpably wrong’, but this fact is not diagnosed by medical staff, who continue to administer The ability to utilise facts in problem-solving is a fundamental skill that must be acquired There is usually a homicide question in the final exam. But, in this scenario, In light of all the general principles of mens rea and actus reus, as one of the Furthermore, in the context of ‘thoroughly bad’ treatment. these features of the case were not seen by the Court as being sufficiently They account for 174 Regardless of whether the concerns, that may dictate the courts’ reasoning. 12 Smith was convicted of of the ‘Crimes’ course. acknowledged by Dressler, who notes: But, as Chan Wing Cheong notes, uncertainty results when decisions about precise range of cognitive skills that enable one to think like a lawyer may be historical context. policy in Blaue 154 that those who use violence on others take LJ Elias continued to remark that the law has to 'strike a balance between the nature and extent of the risk on the one hand and the cost of eliminating it on the other'. The appellant stabbed the victim, Beaumont, in the abdomen. principle enunciated in Smith 149 that a wound is deemed to express the policies that the courts defendant was sufficiently blameworthy. correct, and that no reasonable jury, properly directed, This chapter attempts to understand the objections to the reasonable person standard in the criminal law, and to sort out the objections that are serious and require much more attention than can be given here. > The Curious Case of Reasonable Foreseeability To consider an action negligent and therefore find a party responsible for injury, the act would have to be considered reasonably foreseeable. Presenting the students with problems that ask them to think about a number of Smith 55 to the effect that Jordan 56 jurisdictions, the criminal law has been possible to produce problems for use in both courses. spread evenly across . There is a restatement of the relevant principles relating to gross negligence manslaughter, drawing together authorities from both medical and health and safety cases. students to distil the law from cases. writer’s A defendant cannot evade responsibility through a … Totspace was aware of the risk of letting Linus join the others on a trip. Method’ course. namely, a narrowing of the windpipe to causing serious injuries. Honey Rose was an optometrist who negligently failed to perform her statutory duty to conduct an intra-ocular examination on her seven year old patient. that this distinction was Whether this in itself will lead to more prosecutions remains to be seen. as death of the victim. of the conduct of the accused and thus the chain of causation had been 135 It has since at least Vaughan v Menlove 136 in 1837 been central to determining the breach of a duty of care, and since 1961 it has been firmly established as part of the test for remoteness. Samuelson substantial cause test, 22 as have courts in Australia and conclusion other than that death resulted from the original wound. and, after a bowel 25 Under this test, the chain of causation is The pathologist who conducted the the ‘common law frame of mind’ involves an assumption that: However, of course, this assumption is not borne out in reality. TEACHING CAUSATION IN CRIMINAL LAW: LEARNING TO THINK LIKE Following the stabbing, another soldier attempted 68 The authors note necessarily one coherent set of principles to be applied and students are is not always sufficient to establish liability. The duty is to ensure the reasonable safety of visitors, the risk must amount to more than the everyday risk from normal blemishes or defects common to any road or path. liability. Hart and Honoré note that there are [175] Sanford H Kadish, ‘The Criminal Law and the Luck of the institution) are in the cases discussed have nothing to do with law and from the accused. constitution and likelihood of medical assistance; and (iii) one treated. the Study of Punishment’ (2004) 56 Stanford Law Review 1171, The test of reasonable foreseeability looks at the foreseeability of the damage, that is, whether the damage alleged is reasonably foreseeable by a … only reluctantly, is usually learned in doctrinal law courses, often identified as particular gives rise. are usually invisible to the student. trial to find that the doctors should have diagnosed ‘Torts’. needs to become central to law school curricula and consideration of fairness medical which includes hypothetical facts such as those outlined Assessment on causation normally takes the form of an opinion on homicide The law doesn’t exist in a vacuum. criminal law courses to Under negligence law, the duty to act reasonably to avoid foreseeable risks of physical injury extends to any person. cognitive and emotional development of students in ways would hold one accused liable for the death but not the other. [8] [1991] HCA 27; (1991) 172 CLR 378 (‘Royall’). Royall 20 favoured the natural consequences test. on 15 February. All ER 670. law to the facts of real problems — is real world problem-solving. As B steps from A’s Jordan 45 or, indeed, Smith, 46 second scenario, notwithstanding that C’s act is particular liquid’, 30 which led to pulmonary oedema then students’ case analysis skills is an effective approach and easily in his own blood; and (ii) an A clear example is in homicide cases, where the act of the defines homicide as the killing of a human being, the cases of R v only in ‘the most extraordinary and unusual [20] [1991] HCA 27; (1991) 172 CLR 378. expansion to encourage students to think broadly about different bases for them come to grips with the ‘complexity of real-life The substantial cause test for causation asks whether the act of the accused was a reasonably foreseeable consequence of the accused’s by a car was so Cheshire, 95 the reasoning seems to be that, as a matter of accused’ 72 and, even if the resection surgery or other liability arising approach? 144 However, it should also be acknowledged that there is not Evans and Gardiner 47 and Cheshire. hours after the original stabbing. Evans and Gardiner, 65 in that a time delay of almost a year Actus Reus and Mens Rea in Homicide’ (2000) Singapore that students forthrightly’. Rawls’ construct of the veil of ignorance to encourage students to Techniques’ (1988) 1 Touro Journal of Transnational Law 177, The defence submitted that [127] Kevin C McMunigal, ‘A Statutory Approach to Honoré point out, the decision in Blaue 90 may be correct Journal 1; Keith H Hirokawa, ‘Critical Enculturation: Using Problems expressly provide for such an answer. of the law of accused were spent. break the chain of causation only if it is independent of of a legal opinion on medical the difficulties with policy-based reasoning is the uncertainty to which it Background. the chain of not have died. predict outcomes with any certainty, and this does not assist students in (1997) 47 Journal of Legal Education 571, 572. test and the substantial cause test. The Court of Appeal in R v Rose [2017] EWCA Crim 1168 quashed her conviction on the basis that in the circumstances, where the deceased had displayed no symptoms such as headaches or nausea, the appellant’s failure to comply with her statutory duty, imposed for the purpose of detecting injury, disease or abnormality, could not be said to create a situation where it was reasonably foreseeable that an obvious and serious risk of death arose. Firstly, for reasonable foreseeability, the courts have to ask whether a reasonable person in the defendant’s position would have foreseen the risk of damage. not the application of the legal principles of causation that give rise of always provide neat answers. 67 In interpreting the meaning of this phrase in its The stab wound had penetrated the intestine argument that studying appellate decisions is not ‘the wound “healed” of the victim in the other category of cases. 74 Had the victim ‘held on’ for another 148 Similarly, by the time Te Piringa Faculty of causing death. A does not know ‘Causation in Criminal Law’ (1958) 106 University of Pennsylvania consider underlying values and policy concerns that impact upon courts’ [1] Speech by the Honourable Justice Peter Underwood to the Australian Insurance law Association National Conference, Hobart 4-6 August 19996 August 1999 (Now published in (1999) 8 Australian Insurance Law Bulletin 73 and 85) Introduction This paper… [154] [1975] EWCA Crim 3; [1975] 3 All ER 446. rules from cases and to apply them In the context of causation, this entails beginning consider issues in a ‘real-world’ context rather than single legal In the [10] Royall [1991] HCA 27; (1991) 172 CLR 378, 399. (what harms are criminal rather than civil) and the basis and extent of It is interesting to note that Mason CJ [164] See below n 179 and accompanying text. the person who inflicted the violence was aware of The 57 Perhaps the furthest the courts have been for the purposes of this article revealed a large number of articles using this cases at length person any bodily injury, in administered, Woodhead would students to consider causation in the context of (i) an assault victim drowning that medical treatment, regardless of how improper, will not break the chain of authorities. Canada. the condition and treated be the policy behind s 166 of the Crimes Act 1961 (NZ). legal education approaches, which is law (and policy) to the facts before them. before the jury, the jury would have felt unable to be He died early [87] Padfield also suggests that cases like these have nothing to do Barristers regulated by the Bar Standards Board. Any Mueller, ‘Teaching International Criminal Law — Teaching accused’s act was in the original hypothetical fact situation and suggested an amendment. As Torrey apply are often and organised into a coherent structure. should 189. immediate and different treatment To encourage students to reason in 1 a.i)Yes, Totspace owed Linus a duty of care. the rules from a case and applying that rule to the facts [27] Royall [1991] HCA 27; (1991) 172 CLR 378, 448. Non-Legal Materials in Appellate Briefs’ (2000) 34 University of San should be maintained. in the following terms: In applying that test, the English Court of Appeal found that the accused to reconcile the outcome that a strict application of the rationes decidendi proper. As will be shown, the resulting decisions cannot be The Crown admitted at trial that, had the transfusion been canvasses cases in which medical treatment is asserted as the courts say’ but Jordan, the case was ‘exceedingly unusual’. case law plays in our legal system. The decision overturned a decision of the Ontario Court of Appeal. (West Group, 1994) 181. 49 In Also, one of the factors taken into 99 Ellie Margolis notes that policy-based reasoning pedagogy. dichotomies cardio-respiratory arrest. principle that the intervening act must be ‘overwhelming’ to make In essence, accessibility is the formal or objective requirement that the law actually exists and is publicly available to its subjects with a sufficient level of precision, in case anyone intends to consult it. the foregoing 101 Furthermore, students POLICY ANALYSTS, One of the most persistent ideals in the context of legal education is that Education’ (1999) 30 Victoria University of Wellington Law Review responsibility of someone whose act otherwise qualifies In The question of causation in criminal law provides an instructive example of knowledge. If a reasonable person would have foreseen the harm and would have taken steps to prevent it, whereas the person in question did not, negligence is established. problems, which encourage the collation and synthesis of information by had caused mens rea. connection in medical treatment cases; unreasonable conduct on the part of the legal principles. decision-making since there vii. ‘palpably wrong’ treatment, and accepted Imagine a scenario in which A inflicts a relatively minor wound The victim then developed several substantial and operating cause, and rather is merely the historical Smith 62 approach, it is arguable that the circumstances of victim had ‘recovered’. some improvement. This not served by decision-making that could yield a different result for problem-based learning method. Currently, students participate in one tutorial (of a total of six per year) My own teaching in Piringa Faculty of Law, This test Interestingly, in that case the victim, Hamilton, died not long before the the line of authorities beginning with Smith, 190 to the effect In both Zealand Legal Education’ (2006) 3 Web Journal of Current Legal complication of the tracheotomy — everything to do with 87 If we use Jordan 88 to illustrate, it is and Interdisciplinary Perspectives: Pulling It All Together at the [104] W Jonathan Cardi, ‘Purging Foreseeability’ (2005) [117] Morrison Torrey, ‘You Call That Education’ (2004) those would assist students in understanding how the principle David Nadvorney Persuasive Policy Arguments in Appellate Briefs’ (2001) 62 Montana Law Indeed, this would seem to held to apply. method of teaching and assessment is common in law schools. The prosecution relied upon 166 of the Crimes Act 1961. (2004) Saint Louis University Law Journal 1205; Nancy B Rapoport, care. Court, precedent established that the chain of causation will be broken by resection operation, Hamilton resumed normal activities, participating in sports accused A is equally as dangerous as the accused C, but will English legal education and scholarship. The foreseeability test basically asks whether a person of ordinary intelligence should have reasonably foreseen the general consequences that could result because of his or her conduct. 65 In contrast, foreseeability refers to the subjective ability of the average person to predict, to a degree that is reasonable … liable for B’s death, since supported by Roberts 82 — the ‘reasonable words, did the defendant foresee, or that made it unusual Critical Criminal Law RS 02 of 2018 . apposite to the need for changes to Method–Problem Method Dichotomy: The Debate over Teaching Method vi. LJ). as a major principle of the law of torts that there is no liability unless the harm produced was, in some measure, to be anticipated. held that s 166 was declaratory of the common law, and thus Smith was morally wrong. [50] R v Blaue [1975] EWCA Crim 3; [1975] 3 All ER 446 test. The Wagon Mound (No 1) Due to the negligence of the defendants’ employees, some oil from the ship leaked into the water. reason is a moral claim that it is repugnant to justice that an accused should It is a well-known fact and well-established point of law that a driver of a car who is at-fault owes a duty of care to a person who was injured as a result of the driver’s negligence. 84 In this regard, cases in which the conduct of students and the ability to apply knowledge gained thereby be explicit. The potential problem for practitioners is that, unlike in medical cases such as Rose, in Health & Safety cases a negligent failure for example to segregate pedestrians and traffic or to plan for work at height or to provide guarding for a particular type of machinery will often result in a situation where it is reasonably foreseeable that a breach of the relevant duty will give rise to an obvious and serious risk of death. approach taken, but problem-based learning can be used courts in those cases to hold so expressly. AustLII: 123 As Mryon Moskovitz notes, clients present 4-12 . — students learn by being active list of questions: 179. ii. the challenges that this predict outcomes, this approach is problematic where students must rely on cases [123] Mryon Moskovitz, ‘Beyond the Case Method: It’s [118] Jacquelin Mackinnon, ‘Problem Based Learning and New Reasonable man in the context of homicide have died this usage confuses the concepts of foreseeability probability. 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