involuntary manslaughter - gross negligence Flashcards
what is gross negligence?
the defendant owes a duty of care to the victim and they have failed to uphold their duty of care, it becomes gross negligence when the breach of duty has caused a death
R v Adomako (1994)
The D was an anesthetist in charge of a patient during an eye operation, during the operation an oxygen pipe became disconnected and, the patient suffered a heart attack brought on by lack of oxygen. The patient also suffered brain damage and subsequently died.
The appellant failed to notice or respond to obvious signs of disconnection, the doctors giving evident said an competent anesthetist would have noticed the disconnected tube, and Ds failures were abysmal and he was convicted of GNM.
elements of the offence set out by the HOL;
- the existence of Duty of care by the defendant towards the victim.
- an act or omission in breach of duty
- which creates a serious and obvious risk of death
- and which causes death
- must amount to gross negligence
Duty of care
the ordinary principles of duty of care used on Adomako were set out in Caparo v Dickman (1990)
an act or omission can form the basis of negligence
- it may not be necessary to prove duty of care, if the act creates an obvious or serious risk of death it almost inevitably carries with it a duty to not endanger life
R v Singh (1999)
Duty of care:
D was the landlord of a property in which a faulty gas fire caused the death of tentants
R v Litchfield (1997)
duty of care:
D was the owner of a sailing ship, he sailed knowing that the engines might fail because of contaminated fuel. The ship was blown into rocks and 3 crew members died.
R v Khan and Khan (1998)
duty of care:
the ds supplied heroin to V and then left her alone, she died. The conviction of UAM was quashed but duty still existed
R v Finlay (2001)
duty of care:
a scout master took a group of scouts climbing on a mountain, but one of the scouts fell and died. The omission was considered by the jury to be not so bad as to be criminal
R v Edwards (2001)
duty of care:
Parents allowed children to play on the railway and the children were killed by the train. The parents owed a duty of care to their children
R v Wacker (2002)
D agreed to bring 60 illegal immigrants to England, they were put in the back of a lorry for the cross channel, the only air in the lorry was through a small vent and it was agreed that this vent should be closed at certain times to prevent discovery. The crossing took longer than usual and at Dover customs officers found that 58 of the immigrants had died. D argued that it was impossible to determine the extent of his duty, but the CofA upheld that the D knew that the safety of the immigrants depended on his own actions in relation to the vent and he clearly assumed a duty of care.
D has created a state of affairs
there jas been a debate about the duty of care when the D has created a situation that has allowed a victim to harm themselves - r v evans - creating a situation where her half sister injected herself with drugs
a duty now arises if the d is aware or ought to have been aware that the victims life was at risk due to one of the following reasons
1. the D contributed by supplying or
2. was in a relationship with them i.e. a parent/child
3. the defendant and victim were engaged in a dangerous joint enterprise which went wrong
4. the d voluntarily assumed a duty of care
Breach of duty caused death
Once a duty has been shown, you must show that the breach of this duty was the cause of the death of the victim
- the general rules of causation apply
R v Bateman (1925)
Gross negligence- D was a doctor who attended a women for the birth of her child at home, during the child birth part of the womans uterus came away. D did not send V to the hospital for five days, and she later died. Ds conviction was quashed on the basis that he had carried out the normal procedure that any competent doctor would have done. He had not been grossly incompetent, later it was decided it was a matter for the jury to decide
Risk of death
R v Stone and Dobinson, Bateman and Adomako had all debated whether the risk was to the health and welfare of the victim, or it had to be a risk of death
R v Misra and Srivastav (2004)
The two appellant doctors were convicted of gross negligence manslaughter following the death of a post-operative patient under their care. The patient developed an infection in the wound which was undiagnosed and therefore untreated despite obvious symptoms. The patient died of toxic shock as a result of the untreated infection. The appellants sought to challenge the test of gross negligence manslaughter laid down in Adomako (ie. whether having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in the jury’s opinion to a criminal act or omission.)The appellants argued that this test was circular and required the jury to set their own level of criminality which essentially should be a question of law. The appellants raised Articles 6 & 7 of the European Convention of Human Rights in that the uncertainty created by the Adomako test meant they had been deprived of the right to a fair trial and the uncertainty also meant that at the time the action was committed it was not possible to determine whether the actions were criminal.
Held:
Conviction upheld. The Adomako test did not infringe Convention Rights.
Lord Justice Judge:
“On proper analysis, therefore, the jury is not deciding whether the particular defendant ought to be convicted on some unprincipled basis. The question for the jury is not whether the defendant’s negligence was gross, and whether, additionally, it was a crime, but whether his behaviour was grossly negligent and consequently criminal. This is not a question of law, but one of fact, for decision in the individual case.
In our judgment the law is clear. The ingredients of the offence have been clearly defined, and the principles decided in the House of Lords in Adomako. They involve no uncertainty. The hypothetical citizen, seeking to know his position, would be advised that, assuming he owed a duty of care to the deceased which he had negligently broken, and that death resulted, he would be liable to conviction for manslaughter if, on the available evidence, the jury was satisfied that his negligence was gross. A doctor would be told that grossly negligent treatment of a patient which exposed him or her to the risk of death, and caused it, would constitute manslaughter.
conviction upheld
Supply of illegal drugs
selling illegal drugs to someone who later dies can make the dealer liable for gross negligence
R V Dias
