Gross negligence manslaughter

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The actus reus was defined in R v Adomako:

a duty of care

a breach of that duty

a risk of death

Adomako

V was a patient having an operation and it was D's job to ensure that the tubes which supplied oxygen to V were secure. D failed to notice for several minutes that the tube had come loose, until V went into cardiac arrest and the ECG display showed a flat line. V died as a result 6 months later from hypoxia. D was charged with gross negligence manslaughter. Prosecution called 2 witnesses , who described D's failure to act as 'abysmal' and said a competent anaesthetist would have noticed the problem with 15 seconds. The jury was guided on what gross negligence was and convicted him. The Court of Appeal and the House of Lords both agreed with the decision.

What is a duty of care?

This was established in the case of Donoghue v Stevenson.

You owe a duty of care to 'persons so closely and directly affected by my acts or omissions'.

It's a question of law whether the defendant owes a duty of care to the victim, which the judge will decide. This could be said to be subjective.

Donoghue v Stevenson established the neighbour principle. But how is this defined? e.g. Hillsborough - would a mother watching her son on TV being crushed to death be classified as a 'neighbour'? Or a mother who sees people being crushed but can't see her son? Or a police officer at the scene who sees someone dying? Policemen often claim time off work for the psychological consequences they have after seeing someone dying. There would be a better chance of claiming for nervous shock if you actually see an accident happen, rather than hear it, because you would be more of a 'neighbour'.

Breach of duty

This is judged against the expected standard of care of the ordinary 'reasonable man' - the same as the defendant. The jury have to determine if the breach of care was bad enough to be judged criminal (Adomako), which will always be subjective and will lead to inconsistencies and injustices in the law.

Risk of death

Bateman - the jury was told to convict if they thought the negligence was 'bad enough', but they weren't told what was meant by 'bad enough'. This would have caused inconsistency and injustice.

R v Singh used an objective test of a 'reasonably prudent person' being able to foresee a serious and obvious risk not merely of serious injury or even serious injury but of death' - would they foresee death?

The mens rea of gross negligence manslaughter is gross negligence. However, this is determined in the opinion of the jury which means it is subjective.

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