A recent jury trial dealt with the legal concepts governing the offence of manslaughter. The accused observed a man across the street being forcibly put out of a restaurant. The man was angry and agitated; he wanted to re-enter the establishment. He was shouting and banging on the windows and glass doors of the restaurant while attempting to force open the door. The accused crossed the street and pushed the man, who fell backwards and hit his head on the sidewalk, fracturing his skull and causing his death. Witnesses varied in their description of the force of the push but all agreed they were surprised the victim fell so heavily, evincing no reflex to retain his balance. In fact, it turned out he had almost three times the legal limit of alcohol in his blood at the time. The autopsy also determined his skull was abnormally thin.

Assuming the jury decided the accused, who knew the police were on their way, was not justified in using force and thus committed an assault, the law required them to assess whether a reasonable person in those circumstances would have foreseen, not the likelihood of death, but only of bodily harm resulting from the push. The question to be decided boiled down to how hard was the push and whether such a push would likely cause a person to fall, since normally an open handed push would not by itself cause bodily harm. Thus, in assessing whether he was criminally responsible for the death, the extent of the accused’s knowledge of the degree of the victim’s intoxication and resulting likelihood of falling was crucial. However, the particular vulnerability of the victim due to having a thin skull was not a factor, since the law states that, when an illegal act likely to cause bodily harm is committed, the perpetrator must take his victim as he finds him and accept criminal liability for any degree of harm – including death – which results, even if the extent of the harm was not objectively foreseeable as a probable consequence of the act.