Invol MS - Gross Negligence Flashcards
Gross negligence
Where the death is a result of the D’s grossly negligent act or omission, rather than deliberately.
Adomako test in R v Adomako
Adomako test was developed in various cases, such as R v Sellu and R v Baja-Garba, and culminated in R v Broughton, where there are 6 elements to be proven by the prosecution for GN:
1. D owed an existing duty of care to V
2. D negligently breached that duty of care
3. At the time of breach, there was a serious an obvious risk of death
4. It was reasonably foreseeable that the breach would give rise to this risk
5. The breach caused/ made a significant (more than minimal) contribution to V’s death
6. In the jury’s view, the circumstances of the breach were truly exceptionally bad and so reprehensible that it amounted to gross negligence and criminal sanction
D negligently breached DoC
Objective test
Based upon what a reasonable person would do in the D’s position at the time of breach
An unqualified person is to be judged at the same standard as a qualified person (lack of skill will not suffice if conduct is deemed negligent). But if the D has particular knowledge/skills of a risk that a reasonable person wouldn’t have, their actions should be judged in light of that
E.g. a doctor should have knowledge of health risks - falling below requisite standard
At the time of breach, there was a serious and obvious risk of death
Serious - in this context, qualifies the nature of risk of death as something more than minimal or remote (risk of illness or merely (serious) injury is not enough)
Obvious - the risk must be present, unambiguous and apparent, rather than something that becomes apparent on further investigation
Reasonably foreseeable that breach gave rise to that risk
Objective test
Therefore, it doesn’t matter if D didn’t appreciate the foreseeable risk of death, if the risk would have been obvious to the reasonable person in D’s position
R v Adomako
Basis of gross negligence offence
House of Lords clarified elements for Gross negligence through establishing the Adomako test:
- The law of negligence applies to ascertain whether D has been in breach of duty of care towards the V
- If breach is established, did it cause V’s death?
- If so, the jury must consider whether that breach should be characterized as ‘gross’ negligence and therefore a crime
Lord Mackay - ‘the jury will have to consider whether the extent to which the D’s conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the patient, was such that is should be judged criminal’
R v Broughton
Provides the 6 requirements for Gross negligence that the prosecution must prove
Donoghue v Stevenson
Duty of care
Same rules in negligence apply - Lord Atkin’s speech
Requires foreseeability, proximity, fairness and reasonableness
R v Pittwood
Duty of care
The duty can arise from a contract of employment
R v Willoughby confirmed R v Walker
Duty of care
The duty can exist if the deceased and the D were engaged in an unlawful act together
R v Singh
Serious and obvious risk
There was a serious and obvious risk of death where the faulty gas fire caused deaths - the landlord owed a duty of care
R v Litchfield
Serious and obvious risk
The owner of ship owed a duty of care to the crew where he sailed knowing there was a serious and obvious risk that the engines would fail due to fuel contamination and cause deaths
R v DPP ex parte Jones
Reasonably foreseeable that breach would give rise to risk
The risk would have been obvious to a reasonable person in D’s position
A-G Ref No.2 of 1999
Reasonably foreseeable that breach would give rise to risk
The Adomako test is objective, but a D who is reckless may be found as grossly negligent to a criminal degree
R v Misra and Srivastava
Breach must be gross
Conduct is gross where there’s a disregard for the safety of another person and a risk of death.
Jury to decide whether D’s conduct was grossly negligent and consequently criminal
Gross negligence MS plan
Define - Where the death is a result of the D’s grossly negligent act or omission, rather than deliberately.
Law - Adomako test in R v Adomako was developed in various cases, such as R v Sellu and R v Baja-Garba, and culminated in R v Broughton - 6 elements to be proven by the prosecution for GN:
- D owed an existing duty of care to V - Donoghue v Stevenson, R v Pittwood, R v Willoughby confirmed R v Walker
- D negligently breached that duty of care
- Objective test - based on reasonable person in D’s position
- Unqualified person is to be judged by same standard as qualified person, unless D has particular skill/knowledge that reasonable person wouldn’t have - At the time of breach, there was a serious an obvious risk of death - R v Singh, R v Litchfield
- Serious - nature of risk is more than minimal or remote (injury/illness isn’t enough)
- Obvious - present, unambiguous and apparent, not becomes apparent in further investigation - It was reasonably foreseeable that the breach would give rise to this risk
- Objective test - doesn’t matter if D didn’t appreciate the foreseeable risk of death if it would’ve been obvious to reasonable person - R v DPP ex parte Jones, A-G Ref No.2 of 1999 - The breach caused/ made a significant (more than minimal) contribution to V’s death
- In the jury’s view, the circumstances of the breach were truly exceptionally bad and so reprehensible that it amounted to gross negligence and criminal sanction - R v Misra and Srivstava, R v Adomako
Apply……
Conclusion - If D satisfies all elements for GN, it is up to the jury to decide whether D’s conduct was ‘gross’ and requires criminal sanction.
