Invol MS - Gross Negligence

Question 1

R v Adomako

Answer 1

Basis of gross negligence offence

Lord Mackay: ‘the jury will have to consider whether the extent to which the D’s conduct departed from the proper standard of care… that it should be judged criminal’

Question 2

R v Broughton

Answer 2

Provides the 6 requirements for Gross negligence that the prosecution must prove

Question 3

Donoghue v Stevenson

Answer 3

Duty of care

Lord Atkin outlines that D must owe V a duty of care, which is breached through negligence, causing the V’s death
Neighbour principle - ‘someone so closely and directly affected by your actions that you ought to have them in your compensation’

Requires foreseeability, proximity, fairness and reasonableness

Question 4

R v Pittwood

Answer 4

Duty of care

The duty can arise from a contract of employment

Question 5

R v Walker

Answer 5

Duty of care

A duty can arise from voluntary assumption of responsibility

Question 6

R v Singh

Answer 6

Serious and obvious risk

Serious and obvious risk of death of the faulty gas fire which caused deaths - the landlord owed a duty of care

Question 7

R v Litchfield

Answer 7

Serious and obvious risk

Ship owner owed a DoC to crew when he sailed knowing there was a serious and obvious risk that the engines would fail due to fuel contamination and cause deaths

Question 8

R v DPP ex parte Jones

Answer 8

Reasonably foreseeable that breach would give rise to risk

The risk would have been obvious to a reasonable person in D’s position

Question 9

A-G Ref No.2 of 1999

Answer 9

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

Question 10

R v Misra and Srivastava

Answer 10

Breach must be gross

Conduct is gross where there’s a disregard for the safety of another person and a risk of death - for jury to decide

Question 11

Gross negligence MS plan

Answer 11

Invol MS - common law offence, so requires AR and MR

Define - Where the death is a result of the D’s grossly negligent act or omission, rather than deliberately.

Adomako test in R v Adomako was culminated in R v Broughton - 6 elements to be proven by the prosecution for GN:

1. D owed an existing duty of care to V - Donoghue v Stevenson, R v Pittwood, R v Walker, R v Wacker
2. 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)
3. At the time of breach, there was a serious and 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 upon further investigation)
4. 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
5. The breach caused/ made a significant (more than minimal) contribution to V’s death
6. 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, not just civil law negligence - R v Misra and Srivstava, R v Adomako

Apply……

Causation + 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.

Question 12

R v Wacker

Answer 12

Duty of care

A duty of care is not excluded if both parties were engaged in a joint illegal activity