Gross negligence is the alternative to unlawful act manslaughter for the offence of involuntary manslaughter. Gross negligence manslaughter occurs when the defendant owes the victim a duty of care, but breaches that duty in a very negligent way thus causing the death of the victim. This can either be through an act or an omission, and the act need not be unlawful. The leading case which set the precedent for gross negligence manslaughter is Adomako (1994), where the defendant (an anaesthetist) failed to realise a tube had become undone from his patient which resulted in the death of his patient.How is gross negligence manslaughter proved?
First of all, as mentioned above, the defendant must owe the victim a duty of care. This duty of care originates from the civil concept of negligence, defined in the case of Donoghue v Stevenson as “taking reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”. The neighbour is defined as ‘people so closely and directly affected by the act’.
The duty of care breached is usually a contractual duty, as seen in the case of Singh (1999), where the defendant was found guilty of gross negligence manslaughter as a result of failing to maintain a faulty gas fire, which eventually caused the death of his tenants. However, the duty of care owed need not be a contractual duty, a voluntary duty is also sufficient. This was seen in the case of Stone & Dobinson (1977), where the defendants had undertaken a voluntary duty to care for Stone’s elderly sister, but failed to feed her or seek medical help. This eventually caused her death and they were both convicted of gross negligence manslaughter. This case also highlighted the facts that an omission (failure to act) is sufficient to prove gross negligence manslaughter; not just an act and that this omission or act need not be unlawful.
Gross negligence manslaughter may also cover a duty not to supply drugs, as seen in the case of Khan and Khan (1998) where the defendants supplied heroin to a new user who collapsed. They left the building and returned later to find her dead. Although the defendants were originally convicted of unlawful act manslaughter, the Court of Appeal stated that there could be a duty to summon medical assistance in certain circumstances, for example if the defendants had assumed a duty before the act or omission. A further type of duty recognised by the courts appeared in Wacker (2002). In this case the defendant shipped 60 illegal immigrants in a container to the United Kingdom. When the container arrived, all the immigrants were dead due to a lack of oxygen. It was decided here that because the immigrant’s safety relied on the defendant, the defendant had assumed a duty of care and was therefore liable for gross negligence manslaughter. This case also set out that, unlike in civil law, it is not necessary that the victims were party to an illegal act. If it can be established that there is a duty of care, and that this duty has been breached, then gross negligence manslaughter can be proved providing that the negligence is ‘gross’ and that there was a risk of death to begin with.
The negligence must also be ‘gross’ – The fact a defendant is just ‘negligent’ isn’t enough to be convicted. ‘Gross’ negligence was defined in Bateman (1925) as ‘beyond a matter of mere compensation between subjects and showing such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving of punishment’. The House of Lords approved this definition in the case of Adomako (1994), but also stressed that it was a matter for the jury to decide whether, having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances to amount to a criminal act or omission – Considering the seriousness of the breach in all the circumstances in which the defendant was placed when it occurred. This definition has, however, led to inconsistent verdicts due to different juries having different opinions as to what is ‘gross’ negligence.
Finally, for gross negligence manslaughter to be proved there must be a risk of death involved. Although it is actually unclear on whether there has to be a risk of death through the defendant’s conduct or whether the risk need only be to the health and welfare of the victim. This is because in the case of Stone & Dobinson there was only a risk to the health and welfare of Stone’s sister, who eventually died, and Lord Mackay approved this in Bateman (1925) where he stated the test is ‘disregard for the life and safety of others’. This has therefore left the law a little bit unclear on this point, however, due to the seriousness of the offence of gross negligence manslaughter one would assume that the test should be a ‘risk of death’.
In conclusion, if it is proved that a duty of care exists, which has been breached in a grossly negligent way where a risk of death is involved towards the victim, then gross negligence manslaughter can be proved – With sentences passed at the judge’s discretion and ranging from absolute discharge to life imprisonment.












