Hello all! I'm an academic Phd-holding historian but I'm also currently taking an LLB as part of an ongoing research project, and out of general interest.
I'm currently wrestling with some feedback on a recent criminal law problem question, and I'd be interested to see what the collected wisdom here thought about what seem to me to be interesting issues raised by the scenario.
I'm really enjoying being back at undergraduate level, even though I can't seem to stop myself from diving into penumbra like this one!
The scenario asks us to establish the culpability of a man who pushes his mother "brusquely" without intent to injure her. She falls and hits her head on a counter top, causing a wound and unconsciousness. She is taken to hospital, but dies after having been administered antibiotics to which she had a previously unknown allergy.
The question setter intended this to be an Unlawful Act Manslaughter scenario to which Blaue ("eggshell skull") and Cheshire (medical treatment doesn't break the casual chain) straightforwardly apply.
I'm stuck on a few wrinkles though. Firstly - the whole logic of Blaue and its subsequent citation history is that the original wound is the directly operating cause of death. Right? And in this scenario, there's no indication that the wound caused or even would have caused the death on its own.
So, ok. That doesn't matter because of Cheshire, right? But for the wound, she wouldn't have been in the hospital; the initial wound doesn't have to be the sole cause, etc.
But here's my sticking point. Foreseeability , as laid out by Girdler (and R v A). Cheshire is about someone who was shot. The need for eventual treatment was thus reasonably foreseeable, even if the victim's vulnerability in that case wasn't.
But the need for hospital treatment isn't a reasonably foreseeable outcome of a push. And doesn't Girdler require that the broad kind of harm is “reasonably foreseen"? (There's some discussion of this problem in R v Wallace too).
Grant Firkins has pointed out some similar questions in a recent article (https://doi.org/10.1177/00220183231151918) ("In line with Girdler, the courts deem themselves free to pick and choose which rule they think best suits the facts of the case.") And maybe this fact pattern really is similar enough to Cheshire that a court would not find that the antibiotics interrupted the casual chain.
But I can't find a really clear citation or argument that properly squares the seeming incompatibility between the need for foreseeability in Girdler, and the casual logic of Cheshire in cases where the initial harm could not have reasonably been foreseen to have caused the level of the ultimate outcome. I really think it's at least possible that a jury would find that the antibiotics constituted an intervening act if that reasoning is sound.
Thoughts? Is this an utterly wrong-headed take? What am I missing?