Gross negligence MANSLAUGHTER
The defendant was an anaesthetist for a man who was having an operation on a detached retina. During the operation one of the tubes supplying oxygen to the patient became disconnected. The defendant failed to notice this until some minutes later, when the patient suffered a heart attack due to a lack of oxygen. The patient suffered brain damage and died six months later as a result.
The four key elements for gross negligence manslaughter are:
•The existence of a duty of care towards the victim
•A breach of that duty of care which causes death
•Gross negligence which the jury considers to be criminal
•That the gross negligence was a substantial cause of the death of the victim.
The four key elements for gross negligence manslaughter are:
•The existence of a duty of care towards the victim
•A breach of that duty of care which causes death
•Gross negligence which the jury considers to be criminal
•That the gross negligence was a substantial cause of the death of the victim.
Duty of Care
There needs to be a duty of care between the defendant and the person who dies in the case for gross negligence manslaughter. We have seen in case law that the judges suggest that a duty of care is established the same way in criminal law as the Donoghue v Stevenson 1932 case (neighbour principle). This was replaced by the three part test in Caparo v Dickman 1990, which said there needs to be reasonable foreseeability, sufficient proximity between the claimant and defendant and that it is fair just and reasonable to impose a duty. In the case of Wacker (2003), a lorry driver was smuggling 60 illegal immigrants across the English Channel. He shut the only air vent to them to prevent detection. The ferry was delayed for an hour and 58 of the immigrants died. It was established that he has a duty of care as he had taken on the looking after of them and he was fully aware their survival relied on him. Also, it was irrelevant in criminal law that they were taking part in illegal activities and there was still going to be liability. |
REMEMBER!
The courts have shown disstate to using civil cases to determine the duty of care established for manslaughter cases. You can use these but you should at every opppurtunity use the criminal cases for omissions to show where there is a duty to act and a failure to act. There has been large amounts of criticism of this since saying that the duty of care should be established the same was as crime using an omission is created. We have looked at all of these cases in Unit 2, but here is a recap of the names of the cases and the duties that have been created in criminal law.
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Breach of Duty
This is similar to that of negligence but you need to use cases from criminal law. As much as possible, the leal system tries to keep criminal and civil law separate because they have two separate purposes. The jury must find that: the defendant's breach created a risk of death and that; this is so serious as to amount to criminal conduct worthy of punishment. In R v Misra and Srivastava, the doctors failed to spot that Sean Philips was suffering from toxic shock syndrome, who later died of kidney failure. The judgement said '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.' The jury determined the negligence here was gross and that there was a risk of death. |
In Adomako 1994:
'The jury will have to consider whether the extent to which the defendant's conduct departed from the proper standard of care incumbent upon him, involving... a risk of death to the patient, was such that it should be judged criminal.' Gross Negligence
It has already been covered and discussed in connection with breach but it is the role of the jury to decide whether they think the breach of duty was so bad that in all the circumstances it was enough to amount to a criminal act or omission. In Misra and Srivastava [2005], the agreed on the direction by the judge to the jury to refer to it as 'reprehensible'. |
Causation Elements
The breach must cause the death. The causation tests are the same through criminal law and you can look at R v HM Coroner for Inner London, ex parte Douglas-Williams (1999) 1 All ER 344. Be ready to look for any intervening acts that could break the chain of causation. It has to be the substantial cause of the death as well - it doesn't have to be the only reason but the largest reason for why the death was caused will be sufficient. |
REMEMBER!
Gross Negligence Manslaughter is usually coupled up with Unlawful Act Manslaughter. The burden of proof lies on the prosecution to prove the defendant is guilty and has fulfilled the criteria of manslaughter. The standard of proof is beyond reasonable doubt. The maximum sentence for involuntary manslaughter is a discretionary life sentence. This means the judge can give a life sentence if he believes it necessarily but does not have to.
Gross Negligence Manslaughter is usually coupled up with Unlawful Act Manslaughter. The burden of proof lies on the prosecution to prove the defendant is guilty and has fulfilled the criteria of manslaughter. The standard of proof is beyond reasonable doubt. The maximum sentence for involuntary manslaughter is a discretionary life sentence. This means the judge can give a life sentence if he believes it necessarily but does not have to.