GROSS NEGLIGENCE

  • bop on p to prove ‘beyond reasonable doubt’

  • original tests from R V ADOMAKO (doc, breach, gross negligence.) but since update by R V BROUGHTON:

  1. duty of care

  2. breach

  3. serious or obvious risk of death- broughton

  4. this risk was reasonably foreseeable- broughton

  5. causation

  6. gross negligence

DUTY OF CARE

ADOMAKO held that ordinary principles of negligence in civil law apply. CAPARO V DICKMAN:

  1. harm was reasonably foreseeable

  2. proximity of relationship

  3. fair, just and reasonable to impose a duty.

R V SINGH: Landlord. Gas leak- killed tenants. Guilty, maintained property.

R V GIBBINS AND PROCTOR: parent to child

STONE AND DOBINSON: D’s neglected S’s elderly sister. Guilty as they had voluntarily taken care of her. Voluntary assumed responsibility.

R V EDWARDS: Parents. Left their kid and kid’s friend by rail tracked, died.

R V WACKER: Trafficker. Carrying illegals immigrants, killed near 60. Held that it was irrelevant immigrants were ‘illegal’, still owed a DoC.

R V EVANS: Created a state of affairs. Gave drugs to drug addict and killed her. D created a dangerous state of affairs for which they were responsible. Failure to act after creating risk.

BREACH OF DUTY

  • objective standard of reasonableness

ADOMAKO held whether duty was breached is for jury to decide.

R V LICHFIELD: ship captain breached his duty by setting sail with a knowingly unseaworthy ship.

SERIOUS AND OBVIOUS RISK OF DEATH

  • risk of injury or illness is NOT enough- it must be a risk of death

  • ADOMAKO: ‘having regard to the risk of death involved, was the conduct of D so bad’

R V RUDLING: ‘serious’ risk of death is not the same as the inability to eliminate a possibility. Child’s mother asked for appointment, D suggested coming in after weekend. Child died next day.

R V ROSE: ‘obvious’ didn’t properly examine a boy who died months later. Court held: ‘an obvious risk is a present risk which is clear and unambiguous, not one which might become apparent on further investigation. LP: Risk must exist at time of breach

BATEMAN: ‘disregard for the life and safety of others’

ANDREWS: Where there is a charge of GNM, simple lack of care isn’t enough,

R V MISRA AND SRIVASTAVA: V was D’s patient and V developed an untreated infection despite obvious symptoms. Jury had to decide whether D’s behaviour was grossly negligent and consequently criminal.

REASONABLY FORSEEABLE

  • risk of death must be reasonably foreseeable

  • judged objectively

SUBSTANTIAL CAUSE OF V’S DEATH (CAUSATION)

  • doesnt have to be only cause but must have more than minimally or trivially caused the death

  • general rules on causation apply: factual and legal

  • R V BROUGHTON: D’s gf had a bad reaction to drugs, he didn’t get help. Conviction quashed as evidence couldn’t prove causation- tat she would have lived if he called for help.

GROSS NEGLIGENCE

  • has to be ‘gross’ not just negligence

MENS REA

  • d didnt have intention to kill

  • d is judge by their behaviour- not state of mind

  • serious and obvious risk is judged OBJECTIVELY, so it doesnt matter that D didn’t foresee risk.