Gross Negligence Manslaughter (GNMSL) - TOPIC 6

Gross Negligence Manslaughter

Definition (AO1)

A common law offence which convicts D where his negligence is extreme.

This offence requires no MR and so is contrary to general presumption that D will not be guilty without guilty mind.

Gross Negligence Manslaughter - Required Elements

Definition (AO1)

1. D owed V a Duty of Care (DOC) - Civil law applies

2. D was negligent i.e. breached DOC

3. D’s negligence created a serious and obvious risk of death

4. Such a risk was RF at time of breach

5. D’s negligence caused V’s death (Causation)

6. D’s negligence was gross

Gross Negligence Manslaughter - Required Elements

Case (AO3)

(R v Adomako)

D’s only job was to make sure that V could breath in an operation. D failed and V died as a result - sentenced to 6 years

(Rare case in which medical staff can be criminally liable)

1. Existence of DOC

Rule (AO1)

P must prove that D owed V a DOC - (Question for Jury)

Negligent Act - Same as tort in regards to neighbour principle (Donoghue v Stevenson)

Negligent Omission - Special duties. Same as earlier rules on omissions.

Voluntary assumption of DOC

Case (AO3)

(R v Ruffell)

D promised V’s mother he would take V inside after a night spent taking drugs and drinking. D failed to do so and V died from hypothermia

Criminals owing each other a DOC?

Rule (AO1)

Yes criminals may owe each other a DOC

Criminals owing each other a DOC

Case (AO3)

(R v Wacker)

Lorry traveling to England held 58 illegal immigrants. Vent was shut over 10 hour ferry and all immigrants died. Lorry Driver was convicted of GNMSL

2. Breach of Duty of Care

Rule (AO1)

P must prove that D fell below the SOC expected of the reasonable, competent person (same as tort) - Objective question for Jury

Breach may arise from an act or omission unlike ULAM

Exam: Identify what the act or omission was which caused harm to V.

Irrelevant that D dried his incompetent best, however can be relevant to assessment of it negligence was ‘Gross’.

Breach of Duty of Care

Case (AO3)

(R v Mark)

The case where a doctor failed to provide adequate medical care, leading to a patient's death. This highlighted the expectations of a competent professional within medical practice.

3. Serious Breach?

Definition (AO1)

P must prove that D’s breach created a RF “Serious and obvious risk of DEATH”

TEST - Was death (not injury), reasonably foreseeable at the time of D’s breach

Serious Breach?

Case (AO3)

(R v Misra)

Two junior doctors failed to diagnose and treat toxic shock syndrome. Classic signs of infection were not diagnosed and acted upon. Appeal failed

Serious meaning

Definition (AO1)

‘Serious risk of death’ means something that is more than minimal or remote, a risk of serious injury or illness is not enough.

Obvious meaning

Definition (AO1)

An obvious risk is one that is present, clear and unambiguous.

It is immediately apparent and striking and glaring rather than something that might become apparent on further investigation.

Obvious

Case (AO3)

(R v Honey Rose)

Optometrist failed to conduct a proper eye exam on a young boy who died 4 months later of an undiagnosed eye condition.

Appeal held that “seriousness of breach must be determined based on knowledge of the facts D possessed at the time, not in hindsight”

4. Breach of DOC caused V’s Death (Causation)

Rule (AO1)

P must establish a chain of causation between Breach and V’s death.

• General principles of causation apply (Factual & Legal)

Thin skull, medical negligence and V’s own acts - all apply as normal

Breach of DOC caused V’s Death (Factual Causation)

Case (AO3)

(R v White)

Breach of DOC caused V’s Death (Legal Causation)

Case (AO3)

(R v Broughton)

Breach of DOC caused V’s Death (Causation) - Omission

Case (AO3)

(R v Broughton)

D attended festival with GF. D gave V a class A drug. V had bad reaction to drugs but D failed to obtain timely medical assistance resulting in V’s death and D was found G. Found that V had 90% chance of survival had she received medical assistance and on appeal, conviction was overturned as P could not show to criminal standard that V would have survived if assistance had been provided.

5. Gross Negligence - Gross

Definition (AO1)

• Having regard to the risk of death involved, was D’s conduct so bad in all the circumstances as to amount [Q for jury] to a criminal act or omission. (Adomako)

• Must go beyond a matter of compensation and showed such disregard for the life and safety of others as to amount to a crime against the state, deserving of punishment - Bateman test

Gross Negligence - Gross

Cases (AO3)

(R v Adomako)

Conduct was so bad in all the circumstances as to amount to criminal act or omission

(Bateman Test)

Beyond a matter of compensation

(R v Misra)

Must involve risk of death not just injury

Gross Negligence - Gross

Problem solving

• How serious / obvious was the risk of death - greater the chance of death more likely to be gross

• Taking everything into account, should D be criminally liable

• More experienced D is then more likely to be gross along with if D was motivated by self-interest or tried to put blame on others

• If D is under stressed by being overworked and inadequately trained then less likely to be gross

A* point - Not for expert to define ‘gross

(R v Sellu) - Sellu Test

the issue of gross negligence should be defined by the jury based on common sense and the circumstances, rather than being limited to expert opinion.

GNMSL

Exam Structure

1. DOC owed

2. Breach (fall below SOC)

3. Serious and obvious risk of death at time of breach

4. Such a risk was reasonably foreseeable at time of breach

5. Causation

6. Gross Negligence

Criticisms

• Test for GNMSL is circular can convict D of a crime if they think his conduct was criminal

• Effectively leaves Q of law for jury and since juries don’t give reasons for decisions, it is impossible to tell what criteria will be applied in an individual case.

• Results in inconsistent outcomes and uncertainty