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Gross Negligence Manslaughter Evaluation Plan
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An in-depth evaluation of the law on gross negligence manslaughter. The plan provides a balanced argument and is of an A* standard.
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Gross Negligence ManslaughterIntroduction
Gross negligence manslaughter is committed where the defendant owes a duty of
care to the victim but breaches that duty in a very negligent way, causing the death
of the victim.
It can be committed by act or omission.
The leading case on gross negligence manslaughter is R v Adomako. This established
the 3 elements of the offence.
Firstly, there must be an existence of a duty of care by the defendant towards the
victim.
Secondly, there must be a breach of that duty which causes the death.
And thirdly, there must be a ‘gross’ breach of that duty (which the jury considers to
be criminal).
Duty of Care – Act or Omission
The ordinary principles of negligence in tort apply to gross negligence manslaughter.
These principles are derived from the case of Caparo v Dickman, requiring
foreseeability that damage or injury would occur, proximity in terms of physical
space, time or relationship and it being fair, just and reasonable to impose a duty.
The law arguably lacks fairness because the absence of a ‘Good Samaritan’ law in
England and Wales means that, in most cases, an omission cannot make a person
guilty of an offence.
Critics argue that a duty of care should mean a person is responsible for helping
another in an ‘emergency situation’, even though they are complete strangers.
As a result, it can be argued that the scope of the law on gross negligence
manslaughter is too narrow and that the law should be widened to encompass duties
outside contracts (Pittwood), relationships (Gibbins and Proctor), dangerous
situations created by defendants (Miller), duties voluntarily undertaken (Stone and
Dobinson) and statute (Road Traffic Act 1988).
Despite this, problems would likely arise in determining how the law would operate
under a Good Samaritan law.
It would be difficult to decipher whether a person would have to put themselves at
risk in order to help, whether an emergency situation was unfolding, and if every
witness to the situation would have a duty to help.
This highlights that any amendment to the duty of care aspect of gross negligence
manslaughter would promote unnecessary confusion.
The law in this regard can therefore be said to be satisfactory in its current form.
Overall, the neighbour principle under Donoghue v Stevenson can be said to provide
ample guidance of when behaviour should constitute liability for omitting to act.
‘Gross’
The elusive nature of the term ’gross’, is a common problem within the entire
spectrum of law, and whilst academics may look for enlightenment from higher
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