Invol MS - Gross Negligence Flashcards
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 (eg doctor has knowledge of health risks - falling below requisite standard) - 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.
