Gross Negligence Manslaughter Flashcards
What have the law lords stated there must be for GNM
Actus reus for homicide
Mens rea for gross negligence
What questions are asked to establish men’s rea for gross negligence?
Is there a duty of care? Was there a breach of duty of care? Was there a risk that d conduct could have caused death? Did the breach cause death? Was the negligence gross?
How to remember the questions to establish men’s rea for gross negligence
Dogs (duty of care) Birds (breach) Rats (risk) Cats (cause) Goldfish (gross negligence)
How is GNM different from CM
Must be a duty of care
Can be committed through an omission
The act or omission does not have to be unlawful
Case of GNM
Adomako
Case facts of Adomako
Anaesthetist convicted of GNM when patient died of lack of oxygen due to oxygen tube becoming detached in surgery. He failed to realise his patient was turning blue.
Appeal dismissed
Ruled it is not necessary to use Caldwell recklessness
,who must the duty of care be between
The victim and the defendant
In criminal law omission situations only cover 6 situations is this the case in GNM?
No, it covers more situations
the definition of Duty of care is the same as in law of tort (duty of care between d and v) therefore is not exclusive to the 6 situations seen in criminal law
Under tort of negligence duty of care is much wider
Which case introduced the neighbour principle
Donoughue v stevenson
“You must take reasonable care to avoid acts/omissions that add likely to injure your neighbour”
Who is your neighbour in law
Those people who are so closely and directly affected by your acts/omissions that I ought to have reasonably had them in mind when carrying out my act or omission
Hence wider than CM that needs not have any victim in mind making GNM very wide
Example of duty of care: GNM resulting from a breach of contractual duty of care
R v Singh: d owned a property which he rented. A faulty gas fire lead to the deaths of the tenants.
He was liable as he had a contractual duty of care to maintain the property which he failed to do
Example of duty of care: Doctor/ patient
Adomako
Example duty of care: driver/ pedestrian
R v Andrews
D drove a van above the speed limit, overtook a car and hit a pedestrian who died
Example of duty of care: driver and passenger
R v wacker
D smuggled illegal immigrants into the uk, they died due to lack of oxygen in the truck
He was convicted on GNM
What does r v wacker also demonstrate
The differences in Ex Turpi causa in civil and criminal law
What was decided in r v wacker in terms of Ex Turpi causa
In criminal law d still owes a duty of care to v, even if v is part of the crime
In tort of negligence under the principle of ex Turpi causa d does not owe v a duty of care
Usually in GNM tort of negligence ex Turpi causa principles and followed except in certain circumstances as in r v wacker
Is there a breach of duty of care?
What legal principle does this follow
Tort of negligence
What must d’s conduct be for a breach of duty of care
Must have gone below that of a reasonable and sober person following an objective test
What if d posses a skill higher than that of the ordinary man?
A higher standard is expected of the ordinary person
Eg doctors measured up against the skills of the ordinary doctor
Are allowances made for inexperienced drivers in breach of duty of care?
No they are measured to the standard of an ordinary driver
Was there a risk that d’s conduct could Have caused death?
Where was the principle stated and confirmed
Adomako and confirmed in r v misra and others
Legal principe and case facts of r v misra and others
There must be a risk of death from d’s conduct
Two doctors guilty of GNM. C of a made is clear risk of injury of risk to d’s health is insufficient only a risk of death will do
What question arose from r v Singh
Would a reasonable person have foreseen a serious and obvious risk of death?
Did the breach cause the victims death? Apply the rules of
Causation
Which case gave the test for gross negligence
R v Bateman
Doctor accused of GNM when patient died giving birth, negligent because he caused serious internal damage but delayed sending v to hospital
Negligence was not gross
When does negligence become gross as in r v Bateman
Conduct of d must involve such disregard for life and safety of others that it amounted to a crime
This was confirmed in Adomako and r v Andrews
Where did the meaning of gross negligence come from?
R v Andrews
(Speeding car who killed pedestrian)
Where it was decided that d’s negligence must go beyond that of tort of negligence so the degree of negligence must be very high
Why will law lords not provide a definition for GN / provide statutory clarification
Too complicated for jury to understand however it is confusing and mixes both civil and criminal law
What does Khan and Khan confirm
Confirmed where d has a duty to act and someone dies as a consequence of d’s acts or omissions d can be liable for GNM
Obiter from Khan and Khan
Duty situations were likely to be quite extensive
Case facts of Khan and Khan
D supplied heroine and v invested it then collapsed. D left v and came back to find him dead
There is a duty to summon medical assistance in certain circumstances
Khan and Khan conviction was quashed in the court of appeal due to a misdirection by the trial judge in the court of first instance
What is gross negligence manslaughter: civil or criminal
Negligence is civil law but gross negligence is criminal
Gross negligence manslaughter is when gross negligence leads to death
