Gross negligence manslaughter Flashcards
D may be liable for
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).
There are
5 elements that must be satisfied, set out in Adomako.
Firstly,
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’.
A duty of care can be owed even when
both the defendant and victim are engaged in criminal activity, as in Wacker.
A duty can also arise from an
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).
Here D did owe V a duty of care as when…
there was clearly a foreseeable risk to V
D did owe V a duty…through an omission
as he failed in his duty to…for V that… when…
Secondly,
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.
The defendant’s characteristics may be
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).
Risk factors will be
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).
Here D fell below the standard of the reasonable …
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 …
Thirdly,
the breach of duty must be the cause of death, and so the rules on factual and legal causation must be satisfied.
The test for factual causation is the
but for test, set out in White and Pagett, where the harm would have not occurred but for the defendant.
Here D was the factual cause of V’s death as
but for D…, V would not have died.
The test for legal causation is
whether the the defendant was the operating and substantial cause of harm, which means significant more than minimal cause- Smith and Pagett.
However, a novus actus interveniens (intervening act)
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.
Medical negligence is an
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.
Also, if V has a hidden weakness,
then D is expected to ‘take his victim as he finds them’, under the thin skull rule, as in Blaue.
Here D… was probably the operating and substantial cause of death
as it was significant, more than minimal cause of death.
Although there was an intervening act when V…
,this was a reasonably foreseeable victims act and so the chain of causation is not broken.
There was medical negligence when…
,but this does not seem serious enough (‘palpably wrong’) to break the chain of causation.
V had a hidden weakness of …
,but D must take his victim as he finds them under the thin skull rule.
Overall,
Legal causation is satisfied.
Fourthly,
there must have been a serious and obvious risk of death and death did result. This was established in Misra and Srivastava.
Fifthly, there must be gross negligence,
where the negligence was such as to make the defendant criminally liable in the eyes of jury.
Here the jury may find that D’s conduct to be
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.
To conclude,
D will be liable for involuntary manslaughter as all the elements of gross negligence manslaughter are satisfied.
Gross negligence was defined in
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’.
