Question: Rhonda and Stefan are partners.

One day Stefan starts tickling

Rhonda on the sofa. For a while she finds this enjoyable but then becomes
breathless, as she suffers from asthma. She tells Stefan to stop, but he carries
on. In attempting to escape Rhonda jumps off sofa, as a consequence of which
she twists her ankle causing it to swell up and this gives her considerable pain.
Stefan apologizes and bends over Rhonda to help her up. This has the
consequence of breaking Rhonda’s leg. Stefan takes her to hospital where due
to medical error, Rhonda is given an overdose of a palliative drug. This sends
Rhonda in a coma. She regains consciousness a few days later with no ill
effects. Discuss
Answer:
(1) This question deals with Rhonda and Stefan who are partners and one day
while getting tickled by Stefan, Rhonda got breathless and she told Stefan to
stop tickling her but he did not, while escaping, she jumped off from the sofa,
which resulted in painful twist of her ankle and swelling of it Stefan giving her
a hand to help fell over her causing to break her leg. Then Stefan took her to
the hospital, where she went into a coma due to overdose of medicine. She
regained consciousness after some days. (2)
This is question of Non-fatal offences, Rhonda was injured severely due to
simple lawful act of tickling from Stefan, main point arises as Stefan should had
to for see the consequence of his tickling, and should have stopped it, as it
might have caused any kind of harm and injury
(3) Here one of the main arguments is about “consent” and how far someone
can go in relation to a type of activity which involves harm to the other person,
but where there is consent, there is a line for avoiding the harm.
(4) Important point is here circumstances, which shows that minor negligence
of Stefan created grievous bodily harm of Rhonda. We can take example of
Bollom here. Defendant was convicted when 17 month – old child suffered
bruises to abdomen, arms and legs and in this case the defendant was
convicted of more serious offences based on age of the victim (child). This
case also clears this point that while creating liability particular circumstances
and vulnerability of a victim should be considered. Here Stefan’s offence is
under section 20 and Section 47 of the Offences against The Person act 1861 .
(5) The mere fact that Rhonda withdraws her consent, does not make
Stefan’s act of tickling unlawful as in case of R v Aitken in this case defendant
during the course of celebrations on completing their training, as a practical
joke, the had taken to setting fire to officers wearing their fire resistant
clothing, but one was seriously burned, so the defendant was convicted of
Grievous bodily harm under section 20 Offences Against the Persons Act 1861.
It was held that the defendant believed that the officer had consented, so it
was open for the judge to held so no offence was committed.
(6) In this question simple tickling by Stefan to Rhonda created actual bodily
harm (AHB) in shape of the unlawful force to another person (psychic, or
simple assault like R v Jones and case R v Aitken) which comes under section
47 OAPA 1861 and due to causal connections between acts converted into
Grievous Bodily Harm(GBH)
(7)Can the self-inflicted injury break the chain of causation? Or it should be
considered as an accident, so here we can take the example of case R v
Roberts 1972, in that case the defendant touched the victim on the knee.
Fearing a sexual attack, victim jumped out of the car, in this case court said
that the injury had causal chain linking with act of defendant. As this was held
in case of Savage 1992 that it was not necessary for the prosecution to prove
actual foresight of harm for defendant to be guilty under section 47. In savage
victim was injured by beer glass, the offence was made out upon proof that
defendant intended to throw beer at victim.
(8) Here another issue arises that does overdose of medicine breaks the chain
of causation? We can assess in the light of cases Smith and Cheshire, in the
case of Smith (1959), victim was stabbed and had a wound in his lungs, before
reaching the hospital to get medical attention, he took artificial respiration
which was not good for the person with punctured lungs so he died, although
the intervening acts contributed to the death, Smith’s acts were still cause of
harm and operative, so he was convicted. And in case of Cheshire, the
defendant shot the victim in the abdomen, he was operated after which he
suffered breathing difficulties so a tracheotomy was done, although his
wounds were healed, he still died due to negligence in performing
tracheotomy. It was held that bad medical treatment did not relieve defendant
from conviction.
(9) It simply will aver that we can imply the actus reus of Offence of section 20
and section 47, as Stefan did an un lawful act(tickling) which resulted in the
injuries sustained for example tickling caused the injury not the omission to
stop tickling! It should be in mind that defendant will say that tickling was not
unlawful, as it was a part of horse play both were enjoying it, start of causal
link was voluntary, and chain of causation was broken due to voluntary falling
down from sofa, fracture of leg by accidental fall of Stefan and then overdose
of palliative drug by doctor, so Stefan could not be liable for any offence in this
situation.