"if the defendant had acted as he ought, the victim would not have suffered" vs. "there's evidence that the victim might not have suffered the harm"

Question

1. I don't understand the distinctions between the two clauses. Doesn't 42.2 encompass 42.1? Isn't 42.2 broader? Doesn't 42.1 automatically imply 42.2?

2. Isn't "the defendant had acted as he ought" "evidence that the victim might not have suffered the harm"?

Herring, Criminal Law: Text, Cases, and Materials (8 edn, 2018). p. 75

When will the omission cause the result?

It must be shown that the omission caused the harm. In other words, had the defendant acted reasonably in accordance with his or her duty the harm would not have occurred. For example, in *Dalloway*41 the defendant was driving a cart without keeping a proper grip on the reins. A young child ran out in front of the cart and was killed. It was held that if the defendant was to be convicted it had to be shown that had he been driving properly and holding onto the reins he would have been able to avoid injuring the child.⁴² Similarly, if a father sees his child drowning in a pond and does nothing to help he is not criminally responsible for causing the child’s death if it is shown that even if he had tried to save the child it would have been too late to do so.43

⁴² There is some debate over [call this 42.1] whether it needs to be shown that if the defendant had acted as he ought the victim would not have suffered the harm, or whether [42.2] it is enough that there is evidence that the victim might not have suffered the harm. In Marby (1882) 8 QBD 571 the defendant was convicted of manslaughter after failing to summon medical help which might have saved the life of the victim.

Answer 1

Question 1.

What the question calls [42.2] (a "might have" standard), is indeed a broader standard than [42.1] (a "would have" standard). Any case in which liability would be found under [42.1], it would also be found under [42.2] The reverse is not the case -- there are situations in which liability would be found under [42.2] but not under [42.1] -- specifically cases where a properly acting defendant might or might not have been able to avert the harm.

Question 2.

No, not at all. There could be a case where it is clear that the accused failed to act to try to avert the harm, and therefore did not "act as he ought to have" but it is also clear that any such attempt would have failed, that it was not within the power of the accused to prevent the harm. In that case, the rule stated by Herring says there will be no liability, even though the accused failed in duty.

For example, suppose someone fell in front of an oncoming train, and that the law is that a bystander has a duty to try to rescue the victim. Suppose that the bystander stays still and makes no attempt to help. Then the bystander did not "act as he ought". But suppose further that evidence clearly establishes that given the distance of the bystander from the track, and the distance between the train and the victim, the most diligent bystander possible would not have had time to effect a rescue. Then there is a failure of duty, but no liability under this rule.

(If you argue that a bystander has no duty at all, suppose instead a railway employee or a police officer who does have a duty to assist a victim in such a case.)