Gross negligence manslaughter

Question 1

D may be liable for

Answer 1

gross negligence manslaughter, as a type of involuntary manslaughter which is an unlawful killing where the defendant does not have the mens rea for murder (malice aforethought).

Question 2

There are

Answer 2

5 elements that must be satisfied, set out in Adomako.

Question 3

Firstly,

Answer 3

the defendant must have owed a duty of care to the victim, as in Singh. This is based on the law of tort and duty of care was first defined in Donoghue v Stevenson. In Evans (2009) a duty of care was said to apply ‘wherever D’s conduct carries a foreseeable risk to those around them’.

Question 4

A duty of care can be owed even when

Answer 4

both the defendant and victim are engaged in criminal activity, as in Wacker.

Question 5

A duty can also arise from an

Answer 5

omission which means there was a failure to act when there was a duty to act. Examples are a duty to care for someone assumed voluntarily (Stone and Dobinson, Gibbons and Proctor), the duty to deal with a dangerous situation created (Miller) , and a contractual duty (pittwood).

Question 6

Here D did owe V a duty of care as when…

Answer 6

there was clearly a foreseeable risk to V

Question 7

D did owe V a duty…through an omission

Answer 7

as he failed in his duty to…for V that… when…

Question 8

Secondly,

Answer 8

the defendant must have breached the duty of care owed to the victim, by falling below the reasonable person standard of care test set out in Blyth v Birmingham Waterworks.

Question 9

The defendant’s characteristics may be

Answer 9

relevant and there are special rules relating to professionals (Bolam v Friern Barnet HMC, Montogomery v Lanarkshire), learners (Nettleship v Wetson) and children (Mullins V Richards).

Question 10

Risk factors will be

Answer 10

considered when deciding whether or not the defendant has breached his of duty care. They are size of risk of harm (Bolton v Stone), special characteristics of the claimant such as a serious potential injury/vulnerable victim (Parvis v Stepney), practicality and cost of reducing the risk (Latimer v AEC Ltd) and public benefit (Watt v Hertfordshire).

Question 11

Here D fell below the standard of the reasonable …

Answer 11

when … as the risk of harm was very high, there was a serious potential injury to V who is … and it was cheap and easy to reduce the risk by not …

Question 12

Thirdly,

Answer 12

the breach of duty must be the cause of death, and so the rules on factual and legal causation must be satisfied.

Question 13

The test for factual causation is the

Answer 13

but for test, set out in White and Pagett, where the harm would have not occurred but for the defendant.

Question 14

Here D was the factual cause of V’s death as

Answer 14

but for D…, V would not have died.

Question 15

The test for legal causation is

Answer 15

whether the the defendant was the operating and substantial cause of harm, which means significant more than minimal cause- Smith and Pagett.

Question 16

However, a novus actus interveniens (intervening act)

Answer 16

can break the chain of causation if it was not reasonably foreseeable, as in Corbett and in Roberts which concerned the victim’s own act, and in Pagett which concerned a third party act.

Question 17

Medical negligence is an

Answer 17

intervening act that usually will not break the chain of causation, as in in Cheshire, unless it is considered very serious (“palpably wrong”) as in Jordan.

Question 18

Also, if V has a hidden weakness,

Answer 18

then D is expected to ‘take his victim as he finds them’, under the thin skull rule, as in Blaue.

Question 19

Here D… was probably the operating and substantial cause of death

Answer 19

as it was significant, more than minimal cause of death.

Question 20

Although there was an intervening act when V…

Answer 20

,this was a reasonably foreseeable victims act and so the chain of causation is not broken.

Question 21

There was medical negligence when…

Answer 21

,but this does not seem serious enough (‘palpably wrong’) to break the chain of causation.

Question 22

V had a hidden weakness of …

Answer 22

,but D must take his victim as he finds them under the thin skull rule.

Question 23

Overall,

Answer 23

Legal causation is satisfied.

Question 24

Fourthly,

Answer 24

there must have been a serious and obvious risk of death and death did result. This was established in Misra and Srivastava.

Question 25

Fifthly, there must be gross negligence,

Answer 25

where the negligence was such as to make the defendant criminally liable in the eyes of jury.

Question 26

Here the jury may find that D’s conduct to be

Answer 26

gross negligence and therefore criminal, as it showed such disregard for the life and safety of others to amount to a crime, because D behaved in extremely negligent way without any concern for V’s safety.

Question 27

To conclude,

Answer 27

D will be liable for involuntary manslaughter as all the elements of gross negligence manslaughter are satisfied.

Question 28

Gross negligence was defined in

Answer 28

Bateman and approved in Adomako as meaning ‘conduct so bad in all the circumstances as showing such disregard for the life and safety of others as to amount to a crime’.