Assault causing serious harm- duty of care

golum

I would appreciate it if anybody could direct me towards a case-preferably Irish- which turned on the recklessness component of the above offence, ie under s 4 of the 1997 Act.
What would be of particular use is a case involving an employee tried for offence, in situation in which it was viewed that his/her lack of care in work situation lead to another person being seriously harmed.
Mens rea of recklessness not intent.

Thanks

evercloserunion

I don't have any cases to hand unfortunately, but what you are describing sounds more like negligence than recklessness to me. Indeed it could constitute recklessness if it was extreme enough, but it would have to be very very careless.

Victor

Not a real case, but imagine three guys demolishing a building next to a public street.

Tom throws bricks from the fifth floor without looking and hits someone - reckless.

Dick throws bricks from the fifth floor while looking, hoping to miss, but hits someone - negligent.

Harry throws bricks from the fifth floor into a chute, with a ship below, which is surrounded by a fence and warning signs - probably not negligent.

fowler100

The offence under section 4 is causing serious harm, assault is not an element of the offence.

Tom Young

I think you'll find it is if you read the act 'properly' and indeed the sections in tandem.

evercloserunion

Tom Young wrote: »

I think you'll find it is if you read the act 'properly' and indeed the sections in tandem.

A section 4 offence of causing serious harm does indeed exist independently of assault. Assault is not an element of serious harm (s4), only of basic assault (s2) and assault causing harm (s3).

The mens rea for a s4 offence, however, is the same - intention or recklessness. The main reason for not including assault as an element of causing serious harm was that lack of consent is an essential element of assault, whereas the legislature did not want consent to be a defence for people who seriously harm others. So you can lawfully consent to being assaulted, even where that assault causes harm, but you cannot lawfully consent to being seriously harmed. In many other respects though, including mens rea requirements, the offences are similar.

Tom Young

Indeed, practically identical Wait for it ....

What I love is the TFA 2001 Act, Burglary to whit Theft on indictments! Lovely, another deficient piece of legislation! Oops!

Tom

fliptzer

Just out of curiosity I understand that Section 4.2 deals with sentencing but does that mean a mandatory life imprisonment or anything up to life imprisonment? If latter is true I assume it is up to the judge to decide?

johnnyskeleton

fliptzer wrote: »

Just out of curiosity I understand that Section 4.2 deals with sentencing but does that mean a mandatory life imprisonment or anything up to life imprisonment? If latter is true I assume it is up to the judge to decide?

It's not mandatory, it is anything up to life imprisonment and an unlimited fine. Yes, it's up to the judge to decide.