Case Number

CrimA 35/52

Date Decided

2-12-1953

Decision Type

Appellate

Document Type

Full Opinion

Abstract

The appellant was convicted under s. 218 of the Criminal Code Ordinance, 1936, of causing the death of two small children. The children, though warned not to do so, had been in the habit of bathing in a pool on the appellant's land. The two children had in fact on a previous occasion been driven off and warned not to go near the pool. Nevertheless they disregarded the warning, went into the pool, and were drowned.

Held: Allowing the appeal, per Cheshin J. and Assaf J., that the elements necessary for criminal liability under s. 218 of the (criminal Code Ordinance, 1936, are the same as those for civil liability under the English law of torts.

Since in the present case the children were trespassers and there had been no breach by the appellant of this duty he had been wrongly convicted.

Held further by Assaf J. that the principles of Jewish law led to the same result.

Per Silberg J. (dissenting) that the elements of criminal liability under section 218 of the Ordinance are not the same as those of civil liability under the English law of torts. In the present case it had been positively determined that the death of the children was caused by the negligence of the appellant within the meaning of s. 218 and the fact that they, the children, were trespassers, did not exempt him from criminal liability under that section.

Keywords

Jewish Law, Torts -- Breach of statutory duty, Jewish Law -- Fault, Jewish Law -- Negligence

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