Smith for the death of Margaret

Raul and Christiano are standing in a queue at a bus stop when they begin arguing with one another. Raul pushes Christiano who staggers backwards and collides with Margaret, an 83 year old lady. Margaret falls backwards onto the pavement. She is injured and in pain. Margaret is taken to hospital where x-rays reveal that she has broken her hip. Doctors agree that the injury is made worse partly because she suffers from osteoporosis (brittle bone disease). Although Margaret is elderly, Doctor Smith decides to operate in order to allow Margaret any chance of being able to walk in future.

A few days later, Margaret is recovering slowly from the operation when she develops a secondary infection. Doctor Smith prescribes Margaret penicillin but she is allergic to the drug and dies. Discuss the potential criminal liability of both Raul and Doctor Smith for the death of Margaret. (25) Raul and Doctor Smith may be liable for the murder of Margaret. Murder is a common law offence and as described by Lord Coke in 1797 " The unlawful killing of a reasonable person in being and under the queen's peace, with malice aforethought, express or implied".

The Actus Reus of murder is to cause the unlawful death of a human being under the queen's peace. In this case Raul pushes Christiano who then collides with Margaret, causing a broken hip made more serious by the fact she suffers from osteoporosis, after slowly recovering she develops a secondary infection and doctor smith gives her penicillin which she is allergic to, and dies. The causation in fact using the "but for test" means that Raul can only be guilty if the consequence would not have happened as and when it did 'but for' Raul's conduct (R v Pagett & R v White).

The fact that he pushed Christiano resulted in margaret's injury's and without that act, Margaret would not have died. The causation in law (De Minimus rule) states that it is possible for there to be more than one act contributing to the end consequence. Such acts may be by people other than defendant, in this case that person is Christiano as he is the one that directly makes Margaret fall, however it also states that the defendant can still be guilty if his conduct was a "more than a minimal cause of the consequence" which is true as Raul is the one who pushed Christiano causing the incident (R v Kimsey).

The thin skull rules means that you must take your victim as you find them, despite mental or physical conditions. In this case Margaret suffers from osteoporosis; this means she is a lot more susceptible to injury. The defendant is still liable for the more serious injury, even though the outcome may be less serious than it otherwise might be. Therefore Raul cannot escape the more serious liability blaming the victim, Margaret (R v Blaue).

There needs to be an unbroken chain of causation (Novus actus interveniens), three things can break the chain of causation, an act of a third party, act of the victim or an unforeseeable natural event. In this case an act of a third party would be relevant with the negligent medical treatment imposed by Doctor Smith, and this needs to be sufficiently separate from Raul's conduct so it may break the chain of causation (R v Smith & R v Chesire). Medical treatment has to be thoroughly bad ("Palpably wrong") before it breaks the chain of causation, in this case penicillin was given to her even though she was allergic to it.

In this case the original injury is no longer an operative cause of death after the operation, she has been given penicillin as she has developed a secondary infection, this means it does break the chain of causation, because doctor smith should have identified her allergies, and the treatment was thoroughly bad and palpably wrong as in (R v Jordan). The Mens Rea of murder is an intention to kill (Mohan) or an intention to cause GBH (Vickers). Murder is a specific intent offence, meaning that it can only be committed with intention. There are two forms of intention, direct and oblique.

Direct intention is when the defendant intends consequences of his or her actions this is not the case with both Raul and Doctor Smith, they did not intend Margaret's death. Oblique intention is when the defendant's main aim is not to kill, but when they want to achieve a different a objective. And in achieving that aim causes the victim's death. This would apply to both Raul and Doctor Smith, both intended to do what they do, but Raul didn't know his push on Christiano would eventually kill Margaret, and Doctor Smith intended to give Margaret the penicillin but did not know she would die from it with an allergic reaction.

Defences such as loss of control and diminished responsibility would not apply to either Raul or Doctor Smith, therefore voluntary manslaughter would not be available to them. This leaves the defence of Involuntary Manslaughter, in which includes gross negligence manslaughter, Unlawful act manslaughter and reckless manslaughter which is no used longer after Adamako and Lidar. Considering Unlawful act manslaughter, both Raul and Doctor Smith committed an act and not an omission (Lowe). Both acts were unlawful - pushing Christiano and giving penicillin despite her allergy (Lamb) and also criminal in nature (Franklin).

Both acts were dangerous views objectively (Church) Raul knew there was risk of some harm to Christiano and with transferred malice this can be transferred to Margaret, the minimum from the act of pushing is some harm (Watson), however doctor smith did not know she was allergic to the drug, if he did, he would not have given it to her. Then it must be considered whether the unlawful act caused the death (Kennedy) (See causation previously). Both have the mens rea, and there is no need to prove whether doctor smith saw any harm in his actions or not (Newbury & Jones).

Considering Gross Negligence Manslaughter it must be proven that there was a duty of care, doctor smith owed a duty of care to his patient, however Raul did not necessarily. (Adamnako). The breach of the duty of care must cause the death, this is exactly what happened to Margaret, doctor smith had a duty of care to know that she was allergic to the drug that killed her, (See causation previously). Gross negligence was present "showed such disregard for the life and safety of others as to amount to a crime" (Bateman) the negligent medical treatment would qualify for this.

It can be said that there is a risk of death from both actions, the push and failure to identify what Margaret was allergic to (Misra). In conclusion, it is likely that Raul will redress the offence of murder to unlawful act manslaughter as it is his act which caused the eventual death, and not murder as there was a break in the chain of causation. Doctor Smith from murder to gross negligence manslaughter, as his negligent medical treatment caused the death, and as a doctor he owed a duty of care to Margaret, committing gross negligence when not identifying that she was allergic to the drug.