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Cases - manslaughter - gross negligence

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Adomako, R v (1994) HL

Andrews v DPP (1937) HL

Attorney-General’s Reference (No 2 of 1999) (2000) CA

Bateman, R v (1925) CCA

Benge, R v (1865)  pre-SCJA 1873

Bennett, R v  (1858) CCR

Cato, R v [1976] CA

Bowles & Bowles, R v (2000) CA

Dalloway, R v (1847) Erle J

Donoghue v Stevenson (1932) HL

Franklin, R v (1883)

Gibbins and Proctor, R v (1918) CCA

Goodfellow, R v (1986) CA

Graves and Coates, R v (2003) Basildon Crown Court

Great West Trains, R v [2000] CA

Harris & Harris, R v (1993)

Henderson, R v (1995)

Hennigan, R v (1971) CA

Hood, R v (2003) CA

Instan, R v [1893] CCR

Jones, R v (1870)

Jones, R v (1874)

Khan, R v [1993] CA

Kong Cheuk Kwan v The Queen (1985) PC

Lawrence, R v (1981) HL

Litchfield, R v [1998] CA

Longbottom, R v (1849) pre-SCJA 1873

Mark and another, R v [2004] CA

Martin, R v (1827)

Mastin, R v (1834)

OLL Ltd, R v (1994) CA

P & O European Ferries, R v (1991) Turner J

Pittwood, R v (1902) Wright J

Pocock, R v (1851)

Reid, R v (1992) HL

Rigmaidon, R v (1833)

Seymour, R v [1983] HL

Singh, R v [1999] CA

Stone and Dobinson, R v (1977) CA

Swindall and Osborne, R v (1846)

Timmins, R v (1836) pre-SCJA 1873

Wacker, R v [2002] CA

Walker, R v (1824) pre-SCJA 1873

Waters, R v (1834) pre-SCJA 1873

West London Coroner, ex p Gray, R v  [1988] DC

Willoughby, R v (2004) CA

Wood & Hodgson, R v (2003) Crown Court

Adomako, R v (1994) HL


 

[Manslaughter by gross negligence subsumes reckless manslaughter]
D, an anaesthetist, failed to observe during an eye operation that the tube inserted in V’s mouth had become detached from the ventilator, causing V to suffer a cardiac arrest and eventually die.

 

Held: D was guilty of manslaughter by gross negligence, which is established where D breached a duty of care towards V that caused V’s death and that amounted to gross negligence.

Lord MacKay LC:

“…gross negligence…depends…on the seriousness of the breach of the duty committed by the defendant in all the circumstances in which he was placed when it occurred and 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 judgment to a criminal act or omission”.

the essential ingredients of involuntary manslaughter by breach of duty:

(1) proof of the existence of the duty;
(2) breach of that duty causing death; and
(3) gross negligence which the jury considered justified a criminal conviction.


Guilty

Andrews v DPP (1937) HL


 

[Manslaughter by gross negligence - subsumes reckless manslaughter]
D killed a pedestrian whilst attempting to pass another car by driving well over on the offside of the road. D had been sent by his employer to assist a disabled vehicle.

 

Held: The facts must be such that the negligence of the accused went beyond a mere matter of compensation between subjects and showed such a disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment.

 

Lord Atkin:

(1) ‘There is an obvious difference in the law of manslaughter between doing an unlawful act and doing a lawful act with a degree of carelessness which the legislature makes criminal. If it were otherwise a man who killed another while driving without due care and attention would ex necessitate commit manslaughter.’

(2) ‘[A] very high degree of negligence is required to be proved before the felony is established.’

Lord Atkin quoted the passage from Bateman and introduced the word "reckless" to denote the degree of negligence required. He conceded, however, that the word would not cover all cases and that there was still scope for manslaughter by a high degree of negligence. He excluded "mere inadvertence" but said that some forms of inadvertence might suffice. Conviction for manslaughter should follow if the defendant was proved to have had a "criminal disregard" for the safety of others.

 

D was guilty of manslaughter by gross negligence, not by an unlawful act

Note: "Life and safety" becomes "health and welfare" see Stone & Dobinson (1977)

Attorney-General’s Reference (No 2 of 1999) (2000) CA

 

Whole case here

[Manslaughter - involuntary - gross negligence - defendant’s state of mind pre-requisite to conviction – necessity to establish guilt of identified human individual before corporation can be convicted]
D a rail operator (Great Western Trains) was responsible for a fatal rail accident (seven passengers died at Southall) and was acquitted at trial.

 

Held: A non-human defendant, such as a corporation, could not be convicted of manslaughter by gross negligence in the absence of evidence establishing the guilt of an identified human individual for the same crime. Gross negligence is not a form of mens rea, which means that it must be treated as part of the actus reus.

 

 Although there might be cases where the defendant’s state of mind was relevant to the jury’s consideration when assessing the grossness and criminality of his conduct, evidence of his state of mind was not a prerequisite to a conviction for manslaughter by gross negligence. The test in R v Adomako was objective, but a defendant who was reckless as defined in R v Stone might well be the more readily found to be grossly negligent to a criminal degree.

Not guilty

Comment: This is dramatic because if no mens rea is required, then gross negligence manslaughter is a strict liability offence.

Bateman, R v (1925) CCA


 

 

 

 

R v Bateman (1925)

[Manslaughter by gross negligence subsumes reckless manslaughter - duty of care - care for another assumed]
D a doctor attended the confinement of a woman who died while giving birth.

 

Held: Where a doctor is consulted, by or on behalf of a patient, he owes a duty to that patient to use due caution in undertaking the treatment.

If he accepts the responsibility he owes a duty to the patient to use a fair and reasonable degree of diligence, care, knowledge, skill, and caution in administering the treatment.


Lord Hewart CJ:

“…in order to establish criminal liability the facts must be such that, in the opinion of the jury the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the state and conduct deserving punishment.”

Not guilty

Benge, R v (1865)  pre-SCJA 1873

[Causation - manslaughter - negligence of third parties]
D, a foreman platelayer misread the timetable as to when a train was to arrive. He placed a flagman at the wrong distance giving insufficient warning to the driver. A train left the rails at a spot where rails had been taken up and not replaced.  

 

D argued that the accident would not have occurred if other servants of the company had done their duty. It was the duty of the foreman of plate layers to direct when the work should be done, and also to direct effective signals to be given

 

Held: It was irrelevant that it might have been avoided if other persons had not also been negligent.  Though D was under the general control of an inspector of the district, the inspector was not liable; and the foreman was, assuming his negligence, to have been a material and substantial cause of the accident, even though there had also been negligence on the part of the engine driver, in not keeping a sufficient look-out.

 

Guilty of manslaughter
Also here

Bennett, R v  (1858) CCR

[Gross negligence manslaughter - D not liable for the negligent actions of his servants]

D's business was making fireworks contrary to the law. He kept a quantity of combustibles at his house for that purpose. During his absence, a fire broke out through the negligence of his employees. A rocket ignited flew across the street set fire to a house opposite, which caused the death of a person.

 

Held: The death was not caused by the unlawful act of D, but by the negligence of his employees.

 

Not guilty of manslaughter

Bowles & Bowles, R v (2000) CA


 

[Gross negligence by companies – corporate manslaughter]
D brother and sister directors of a haulage company ignored the excessive hours of one of their drivers who killed two motorists on the M25 in October 1997 after falling asleep at the wheel of his lorry. The driver was in a “dangerously exhausted state” and often worked more than 60 hours without taking proper breaks.

 

Guilty of ‘Corporate Manslaughter’
Given suspended sentences of 15 months and 12 months respectively.

Cato, R v [1976] CA

[Gross Negligence Manslaughter - consent no defence, but relevant to recklessness or gross negligence]

D and F went from a pub to the house that they shared. They injected each other with heroin a number of times throughout the night.  Each man prepared a mixture of heroin and water in the syringe to his own liking and for his own consumption and then gave it to the other to administer by injection. F died the following morning.

 

D knew that the injection of heroin might result in addiction but he had no idea that it could give rise to death or serious bodily harm.
 

Held: Although F's consent to the injection of heroin was no defence to a charge of manslaughter, it was something which had to be taken into account when the jury came to consider whether the appellant had acted with recklessness or gross negligence.

 

Guilty

Note: this case also considered unlawful and dangerous act manslaughter

Dalloway, R v (1847) Erle J


 

[Gross negligence manslaughter – causation – the negligence must cause the death]
D driving a cart not holding the reins. A three-year-old child ran into the road was struck by one of the cart wheels and was killed.

 

Held: D could not have prevented the child’s death by using the reins.

 

Not guilty

Donoghue v Stevenson (1932) HL

 

Whole case here


 

[Gross negligence manslaughter – there must be a duty of care]
Mrs Donoghue went to Minchella’s Wellmeadow Cafe in Paisley with a friend. The friend ordered ice cream over which part of a bottle of ginger beer was poured. When the remainder of the ginger beer was poured, it was found to contain a decomposed snail. Mrs Donoghue became ill through having consumed contaminated ginger beer.

 

Held:

“The rule that you are to love your neighbour become in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? Receives a restricted reply. You must take reasonable care to avoid acts or omissions, which you can reasonably foresee, would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”

C won.

Franklin, R v (1883)

[Gross negligence manslaughter - more than civil level of negligence – there must be some advertence]
D threw a large box into the sea from the West Pier at Brighton and killed a swimmer.

 

Held; the accused was convicted on the ground of gross negligence.

 

Guilty

Gibbins and Proctor, R v  (1918) CCA

[Gross Negligence Manslaughter  omissions – duty situations–  actus reus]
D and his common law wife failed to feed the man's 7 year-old child, Nelly, and she died from starvation. The woman hated Nelly, and was clearly the moving force.

 

Held: Where there is the duty to act, failure to do so can lead to liability even for murder if the necessary mens rea is present.

The woman was held to be liable because, while the child was not hers, she was living with the man and had accepted his money for food.

The courts regarded the parent's duty towards a young child as so self-evident as not to require analysis or authority.

 

At common law a parent has a duty to act for the welfare of his child and, if harm is caused to the child by his failure to act, he may be criminally liable for the resulting harm

 

Guilty of murder

Goodfellow, R v (1986) CA

 

 

[Manslaughter - unlawful act/gross negligence]
D wished to move from his council house but could not, so he set fire to it as part of a scam. His wife, son and another woman died.

Held: D would be liable for reckless manslaughter if D either was inadvertent as to the risk of injury to others entailed in setting fire to the house in circumstances where

'it would have been obvious that there was some risk', or was aware of the risk but adverted to it nonetheless. '[I]n the circumstances of this case if there was risk of injury at all to the people upstairs then it must follow that there was a risk of death.'

Guilty of manslaughter by either unlawful act or recklessness.

Graves and Coates, R v (2003) Basildon Crown Court

[Gross negligence by companies – corporate manslaughter - example of conviction]

DD the owner of a haulage company and one of his lorry drivers.   An articulated lorry crashed into the back of a vehicle, killing the driver. The lorry driver had been working continuously for 20 hours without proper rest breaks and was suffering from sleep deprivation.

 

Held: The owner was found guilty of manslaughter. The lorry driver was convicted of causing death by dangerous driving. Both men were also convicted of tachograph offences relating to falsifying records.
 

Both were jailed for four years

Great West Trains, R v [2000] CA


 

[Gross negligence by companies – corporate manslaughter]
D’s automatic warning system was not working on a train travelling at 125mph from Swansea to London collided with a freight train. 151 people injured seven died, £10 million worth of damage.

 

The driver was packing his bag and not looking went through two warning signals before The prosecution could not prove a particular senior executive was grossly negligent. D, the railway company.
 

No evidence was offered against the driver Larry Harrison, “for parity” (the same as they did for the company)

 

Mr Justice Scott Baker:

“There is little purpose in the Law Commission making recommendations if they are to be allowed to lie for years on a shelf gathering dust….It has remained notoriously difficult for the Crown to establish manslaughter against a corporation and as far as I am aware they have only succeeded once and that was in the case of a one-man company.”

 

Great Western pleaded guilty under health and safety legislation and faced unlimited fines

The Attorney General appealed see Attorney-General’s Reference (No 2 of 1999) (2000) CA

Harris & Harris, R v (1993)

Times news report 29/10/93

[Gross Negligence Manslaughter  omissions – duty situations–  actus reus]

DD the parents of a girl refused to allow doctors to treat her diabetes with insulin.

 

Held: Their duty to act arose from their relationship: parents have a duty to take proper care of their children, and if they fail to do so they can be criminally liable for the consequences.

 

Guilty of manslaughter

Smith & Hogan suggest adult children may have a similar duty to their infirm parents. were found guilty of the manslaughter

Henderson, R v (1995)


 

[Gross negligence by companies – corporate manslaughter]
The Marchioness was in collision with the gravel dredger Bowbelle on the Thames. The Marchioness sank. 81 survived, 51 died, including Francesca Dallaglio 19, sister of former England rugby captain Lawrence Dallaglio.

 

A Marine Accident Investigation Branch report found that the cause of the accident was the failure of crew on the Marchioness and the Bowbelle to keep an adequate lookout. An inquest jury found that the disaster had been caused by “gross negligence” but the Crown Prosecution Service decided there was insufficient evidence to prove such a criminal charge.

 

Two trial juries had earlier failed to reach a verdict against Captain Douglas Henderson, skipper of the Bowbelle, who was formally acquitted of endangering life by failing to keep an adequate lookout.

Hennigan, R v (1971) CA

^[(Gross negligence manslaughter) - causing death by dangerous driving - 'substantial' means cause of accident - civil and criminal distinction, more than de minimis]

D drove at 80 mph into the side of a car which emerged from a side turning.  Two passengers were killed in the other car.

 

Held: If this was a civil action the driver of the other car might be held substantially to blame emerging from a minor road, because she clearly was at fault; on the other hand D in a restricted area at night - it  was 11·00 pm - was clearly going too fast, and dangerously too fast.

 
So long as the dangerous driving is a cause and something more than de minimis, it is sufficient.  There is nothing which requires the manner of the driving to be a substantial cause, or a major cause.

Even if he was only one-fifth to blame, he was a cause of the death of these two people.

 

In this context, if the word ‘substantial’ is used it must be taken as indicating no more than that the dangerous driving, as a cause of the accident, was something more than de minimis.

 

Guilty

Hood, R v (2003) CA

^[Manslaughter by omission - sentencing]
D by gross negligence by omission allowed his sick wife to remain untreated for 3 weeks after she had a fall.  She died in hospital when he eventually called an ambulance.

 

Held: D was acquitted of murder, but was convicted of gross negligence manslaughter. On any view, this case was one of pure omission. There was no doubt that the victim had suffered, but she had been reluctant to go to hospital. In the event, the defendant had called for medical assistance and his neglect had not been the sole cause of death.

 

Sentence reduced to 30 months.

Instan, R v [1893] CCR

^[Manslaughter by omission - distinction between unlawful commission and omission – existence of duty – advertence needed]
D lived with her aunt, who was suddenly taken ill with gangrene in her leg and became unable either to feed herself or to call for help. D did not give her any food, nor did she call for medical help, even though she remained in the house and continued to eat her aunt's food. The aunt's dead body was found in the house decomposing for about a week.

 

Held: A duty was imposed upon D to supply the deceased with sufficient food to maintain life, and that, the death of the deceased having been accelerated by the neglect of such duty.

Lord Coleridge, CJ:

"It would not be correct to say that every moral obligation involves a legal duty; but every legal duty is founded on a moral obligation. A legal common law duty is nothing else than the enforcing by law of that which is a moral obligation without legal enforcement."

Guilty of manslaughter.

Jones, R v
(1870)

[Gross negligence manslaughter - contributory negligence]

D drove a vehicle, V a passenger interfered with the horse and the accident occurred, killing V.

 

Held: D is bound to exercise proper care in regard to the safety of his passenger, but he cannot be found guilty of manslaughter if the deceased himself interfered in the management of the horse, and thereby assisted in bringing about an accident.

There is no contributory negligence getting into a vehicle and al being driven, by a driver who is perceptibly drunk.

Jones, R v
(1874)

[Gross negligence manslaughter - dangerous weapons]

D pointed a gun at V, without previously examining whether it was loaded or not and the weapon accidentally went off and killing him.

 

Held: Such conduct amounts to manslaughter.

Khan, R v [1993] CA

^[Gross negligence manslaughter – there must be a duty of care]
D drug dealers supplied a 15-year-old girl with heroin. It became apparent that the girl was in need of medical attention but the defendants left her alone until the next day when they found her dead. They dumped her body on waste ground.

Held: The actus reus of the offence was the omission to summon medical assistance and not the supply of heroin. To say a drug dealer owed a duty of care to a person to whom he supplied heroin would be too wide an extension.
The jury should have been directed to decide whether a duty of care was owed by the defendants to the girl, whether there was a breach of that duty and whether that breach constituted gross negligence and was therefore a criminal act.

 

Verdict at the retrial not recorded

Guilty of manslaughter by omission

Kong Cheuk Kwan v The Queen (1985) PC

^[Gross negligence manslaughter - risk to life taken or not considered]

D were the navigators of two hydrofoils which collided in Hong Kong harbour in perfect weather resulting in loss of life.

 

Held: The model direction R v Lawrence applied. D’s acts had to created an obvious and serious risk of causing physical damage to some other ship, and thus to other persons, and D had not given any thought to the possibility of that risk, or whether they had recognised that the risk existed, but had decided to take it.

 

Lord Roskill:

"The Court of Appeal [of Hong Kong] . . . felt . . . able to conclude that other later passages in the summing-up, including repeated references to ''gross negligence'' put the matter sufficiently right...from beginning to end of the summing-up neither the word ''reckless'' nor the word ''recklessness'' ever appears"

Not guilty.

Lawrence, R v (1981) HL


 

[Manslaughter by gross negligence subsumes reckless manslaughter – Caldwell/Lawrence]
D was driving a motorcycle along an urban street and collided with a pedestrian, causing her death.

 

Held: Lord Diplock: manslaughter by recklessness is established first, where D is

“…driving the vehicle in such a manner as to create an obvious and serious risk of causing physical injury to some other person who might happen to be using the road or of doing substantial damage to property’; and second, where D ‘did so without having given any thought to the possibility of there being any such risk, or, having recognised that there was some risk involved, had nonetheless gone on to take it’."

D was not guilty of manslaughter.

Litchfield, R v [1998] CA


 

[Gross negligence manslaughter - more than civil level of negligence – there must be some advertence]
D a ship’s captain followed an unsafe course and relied too heavily on his engines even though he knew the fuel was contaminated. The ship foundered off the Cornish coast and three crew members were drowned.

 

Held; It is up to the jury to decide whether or not negligence is gross negligence even though negligently endangering a ship is a statutory offence. The question for the jury is whether it amounts to the crime of manslaughter.

 

Guilty

Also here

Longbottom, R v (1849) pre-SCJA 1873

[Gross negligence manslaughter - contributory negligence not a bar to conviction]

DD negligently drove a gig along a public thoroughfare in the evening at a rapid pace, and down a shaded hill killing a pedestrian.

 

Held:  Even though deceased was himself guilty of great negligence in persisting in walking in the middle of such a road, though he was quite deaf, and thereby contributed to his own death, D was liable.

 

Guilty of manslaughter

Mark and another, R v [2004] CA

[Gross negligence manslaughter – D need not actually be aware of risk of death]
DD were involved in the management of a company that contracted to clean a resin storage tank. V, an apprentice died when an explosion occurred because a halogen lamp was knocked over by another apprentice. The appeal was made so DD could obtain permission to take the case to the House of Lords to ask them to consider whether  R v G had altered the position in R v Adomako [1994].

Held: Actual foresight by D of the risk of death was not essential in gross negligence manslaughter (R v Adomako). Further, the decision in R v G was limited to recklessness in the context of a particular statutory provision (Criminal Damage) and no reference had been made to R v Adomako.

Guilty leave to appeal against conviction refused.
[Comment] The court considered the following two cases:
A-G’s Ref (No 2 of 1999) [2000] (CA) which confirmed that where the defendant’s state of mind was relevant in Gross Negligence manslaughter the test was objective.
R v DPP, ex p Jones [2000] (QBD) IRLR 373 which said that the test of negligent manslaughter is an objective one confirming Attorney General’s Reference No 2 of 1999.

If the accused is subjectively reckless, then that may be taken into account by the jury as a strong factor demonstrating that his negligence was criminal.

Where D fails to consider the risk (as opposed to taking a risk) in an obvious and important matter, he can still be convicted.

In the instant case the Court of Appeal has followed the law to the letter and decided that the law is in no need of revision.

Martin, R v
(1827)

[Gross negligence manslaughter - care of another]

D caused the death of a child by giving it strong drink in a quantity quite unfit for its tender age.

 

Held: he was guilty of manslaughter.

Mastin, R v
(1834)

[Gross negligence manslaughter - joint enterprise]

A and B be were racing on the highway B rode against the horse of C killing him

 

Held: A is not liable.

OLL Ltd, R v (1994) CA


 

[Corporate manslaughter – gross negligence]
D the company owned and run by Peter Kite organised a canoe expedition in Lyme Bay where 4 sixth-formers drowned.

 

Held: The company was fined £60,000, Kite and company were each convicted of four counts of manslaughter. Kite was jailed for three Years.

Jury verdict 10 to two.
The four sixth-formers who died were Dean Sayer, 17, Simon Dunne 16, Claire Langley 16, and Rachel Walker 16.

 

Guilty

P & O European Ferries, R v (1991) Turner J


 

[Gross negligence by companies – corporate manslaughter]
DD, a seaman, captain and five other crew failed to close the main loading doors on a cross-channel ferry the ship sank, drowning several hundred people.

 

Held: There was insufficient evidence that the “controlling mind” of the company had been reckless and the judge directed the jury to acquit them. The prosecution, for parity, offered no evidence against the lower-ranking individuals who had been directly responsible

Pittwood, R v (1902) Wright J


 

[Gross negligence manslaughter – there must be a duty of care]
D a level crossing keeper negligently left open the crossing gate. A man’s cart was struck by a train and he died.

 

Held: D had a duty arising from his contract of employment to shut the gate, and although this duty was owed to his employers rather than to the public at large, it was enough to lead to his conviction.

 

Guilty

Pocock, R v
(1851)

^[Gross negligence manslaughter – there must be neglect of a duty of care]

D were trustees of a road, they failed to arrange for repairs. V driving a cart went into a hole was thrown off the cart and died.

 

Held: The omission to raise a rate, or to contract for the repair of the road, did not directly causes the death.

If D were held liable, the surveyors or the inhabitants of the parish would be equally guilty of manslaughter; for the law casts upon them the duty of keeping the roads in repair.

Campbell, CJ said that to uphold this inquisition would be to extend the criminal law in a most alarming manner, for which there is no principle or precedent.

 

Not guilty

Reid, R v (1992) HL

[Gross negligence manslaughter - mens rea - objective recklessness]

D was driving in the inside lane of a dual carriageway. D tried to overtake another car on its nearside but there was a hut protruding into the road in the nearside lane. D's car struck the hut and his passenger was killed.

 

Held: Recklessness could not be restricted to a subjective test and included failing to appreciate an obvious risk. However, it was not always necessary to direct the jury precisely in the terms of Lord Diplock's specimen direction in Lawrence they must have regard to all the available evidence’.

 

Lord Ackner:

Lord Diplock's dicta in Lawrence was

"no more than a cautionary instruction to the jury ... yet before reaching any firm conclusion they must have regard to any explanation which accounts for [D"s] conduct. In short, they must have regard to all the available evidence".

 

Held: Lord Goff:

"I accept that if D is addressing his mind to the possibility of risk and suffers from a bona fide mistake as to a specific fact which if true would have excluded the risk, he cannot be described as reckless though he may be guilty of careless driving."

 

Guilty

Rigmaidon, R v
(1833)

[Gross negligence manslaughter - example]

D negligently fastened cask which fell and killed two women.

 

Held: guilty of manslaughter.

Seymour, R v [1983] HL

^[Gross negligence manslaughter – test of recklessness]
D a lorry driver
having recently quarrelled with the woman with whom he lived, was involved in a minor collision between his 11-ton lorry and her car. The woman got out of the car, but was crushed between the lorry and her own car as the accused tried, allegedly, to shunt her car out of the way (moving it 10 to 20 feet and forcing a tyre off in the process).

 

Held: The appropriate direction to the jury in a manslaughter case where death was caused by reckless driving was Lord Diplock's dicta in Lawrence.

Lord Roskill (obiter) :

“[there is]…a need to prescribe a single and simple meaning of the adjective "reckless" and the adverb "recklessly throughout criminal law unless Parliament has otherwise ordained in particular case. That simple and single meaning should be the ordinary meaning of those words as stated in this House in R v Caldwell and in R v Lawrence.”

Guilty of death by reckless driving

[Comment]: Although Lord Roskill held that the test is recklessness rather than gross negligence:

"it is no longer necessary or helpful to make reference to compensation and negligence", in subsequent cases the civil law of negligence has been the prevailing one.


The question of whether there is or can be a duty seems to be a question of law: Khan [1998] and Singh [1999].

Singh, R v [1999] CA


 

[Gross negligence manslaughter – there must be a duty of care]
D managed a block of flats where one of the tenants died of carbon monoxide poisoning. The gas fires in many of the flats were unsafe, and there had been complaints from other tenants.

 

Held; D had a duty of care.

 

Guilty

Stone and Dobinson, R v (1977) CA


 

[Manslaughter by omission - distinction between unlawful commission and omission – existence of duty – advertence needed]
S and D allowed an ill and unstable sister to live in their house; she died after they failed to call for medical attention.

 

Held: Geoffrey Lane LJ:

“The duty which the defendant has undertaken is a duty of caring for the health and welfare of the infirm person. What the prosecution have to provide is a breach of that duty in such circumstances that the jury feel convinced that the defendant’s conduct can properly be described as reckless, that is to say a reckless disregard of danger to the health and welfare of the infirm person. Mere inadvertence is not enough.

The defendant must be proved to have been indifferent to an obvious risk of injury to health, or actually to have foreseen the risk but to have determined nevertheless to run it."

Both guilty of manslaughter by gross negligence.

Swindall and Osborne, R v
(1846)

^[Gross negligence manslaughter - joint enterprise - contributory negligence not relevant]

DD were racing two carts/coaches furiously along the public road, and inciting and encouraging each other.  One of the carts ran over a man and killed him.


Held: Pollock CB: It matters not whether V was deaf, or drunk, or negligent or in part contributed to his own death, for in this consists a great distinction between civil and criminal proceedings.

 

Both are guilty of manslaughter, the one as principal in the first degree, the other as principal in the second degree.

Timmins, R v
(1836) pre-SCJA 1873

 

^[Gross negligence manslaughter - joint enterprise - contributory negligence not relevant]

D raced a carriage with another carriage, and was unable to pull up his horses in time the carriage overturned, and a person thrown off it and killed.

 

Held: Manslaughter.

Wacker, R v [2002] CA


 

[Gross negligence manslaughter – there must be a duty of care – can include persons on joint criminal enterprise]
D caused the deaths of 58 illegal immigrants travelling in the back of his lorry because he failed to ensure they had air.

 

Held: The ordinary principles of the law of negligence do not create a duty of care between those involved in a criminal enterprise; the principle had no application to the facts of this case, as a matter of pubic policy.

 

Guilty

Note: Sentences on appeal increased from 6 years to 14 years.

Walker, R v
(1824) pre-SCJA 1873

 

^[Gross negligence manslaughter - joint enterprise - contributory negligence not relevant]

D drove a cart at an unusually rapid pace, and ran over a pedestrian killing him.  He called to deceased to get out of the way, and he might have done so if he had not been drunk.

 

Held: Guilty of manslaughter

Waters, R v
(1834) pre-SCJA 1873

 

[Gross negligence manslaughter - example]

D was on one ship, and B in a boat alongside.  Both of them were drunk. They argued about payment for some goods. D pushed away the boat on which B was standing with his foot. B reached out to grab hold of a barge to prevent his boat from drifting away.  He overbalanced fell into the water and drowned.

 

Held: Not guilty of manslaughter

West London Coroner, ex p Gray, R v  [1988] DC

[Gross negligence manslaughter - duty of care - disregard of health and welfare - recklessness required]

Gray was one of the police officers in whose custody, and care, the deceased was when he died.  The deceased was a black member of the Hell's Angels and his death received much publicity.

Allegations were made against various police officers concerning their use of force and their failure to summon an ambulance promptly when he became unconscious.

This case was judicial review of the coroner's inquest, the jury’s verdict was ‘unlawful killing’.

 

Held:

Four ingredients are required

  1. that the police were under a duty to have regard to the health and welfare of the deceased,

  2. that in the circumstances there was a failure to do what should have been done for the health and welfare of the deceased,

  3. that the failure amounted to a substantial cause of death and

  4. that the failure amounted to recklessness;

The test for ‘recklessness’ was whether a police officer, having regard to his duty, was indifferent to an obvious and serious risk to the health and welfare of the deceased or, recognising that risk to be present, deliberately chose to run that risk by doing nothing about it.

 

A failure to appreciate that there was such a risk was not by itself sufficient to amount to recklessness.

 

Unlawful killing must be attributed the unlawful conduct to a single police officer and not by aggregating the conduct of two or more officers.

 

The verdict was quashed and a new inquest ordered.

Willoughby, R v (2004) CA

 

 

[Gross negligence manslaughter - judge can direct jury on existence of duty]

Although, on a charge of manslaughter by gross negligence or in the course of an unlawful act, it was ordinarily a question for the jury, where there was evidence capable of establishing a duty of care, whether the defendant owed the victim such a duty, in an exceptional case arising, for example, between doctor and patient or where Parliament had imposed a particular type of statutory duty, a judge could properly direct the jury that such a duty existed.

 

Wood & Hodgson, R v (2003) Crown Court

[Gross negligence manslaughter - jury standards]

DD the householders where a ten-year-old girl used to go round to play with their baby and to watch videos. On one visit she found ecstasy tablets in a cigarette packet and ate some of them (?5). She was obviously ill but DD did not call an ambulance for about 1½ hours. V died.
 

Held: DD were acquitted of gross negligence manslaughter in allowing V to get hold of the tablets, the jury obviously thought that DD had taken care to hide them from her, and so were not grossly negligent.

 

Not guilty



 

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