The court was asked ‘In assessing reasonable foreseeability of serious and obvious risk of death in cases of gross negligence manslaughter, is it appropriate to take into account what a reasonable person in the position of the defendant would have known but for his or her breach of duty?’ The appellant, a registered optometrist, had examined a boy who, five months later died suddenly of hydrocephalus. It was said that she should have identified this. Held; The appeal succeeded: ‘ The inherently objective nature of the test of reasonable foreseeability does not turn it from a prospective into a retrospective test. The question of available knowledge and risk is always to be judged objectively and prospectively as at the moment of breach, not but for the breach. The question of reasonable foreseeability is evident from the words used, i.e. what is reasonably fore-seeable at the time of the breach (a prospective view). It is not what would, could or should have been known but for the breach of the identified duty of care, i.e. if the breach had not been committed (a retrospective view).’
‘ In the circumstances, the relevant principles in relation to the cases of gross negligence manslaughter can be summarised as follows:
(1) The offence of gross negligence manslaughter requires breach of an existing duty of care which it is reasonably foreseeable gives rise to a serious and obvious risk of death and does, in fact, cause death in circumstances where, having regard to the risk of death, the conduct of the defendant was so bad in all the circumstances as to go beyond the requirement of compensation but to amount to criminal act or omission.
(2) There are, therefore, five elements which the prosecution must prove in order for a person to be guilty of an offence of manslaughter by gross negligence:
(a) the defendant owed an existing duty of care to the victim;
(b) the defendant negligently breached that duty of care;
(c) it was reasonably foreseeable that the breach of that duty gave rise to a serious and obvious risk of death;
(d) the breach of that duty caused the death of the victim;
(e) the circumstances of the breach were truly exceptionally bad and so reprehensible as to justify the conclusion that it amounted to gross negligence and required criminal sanction.
(3) The question of whether there is a serious and obvious risk of death must exist at, and is to be assessed with respect to, knowledge at the time of the breach of duty.
(4) A recognisable risk of something serious is not the same as a recognisable risk of death.
(5) A mere possibility that an assessment might reveal something life-threatening is not the same as an obvious risk of death: an obvious risk is a present risk which is clear and unambiguous, not one which might become apparent on further investigation.
A further point emerges from the above analysis of the authorities which is particularly germane to the present case: none of the authorities suggests that, in assessing either the foreseeability of risk or the grossness of the conduct in question, the court is entitled to take into account information which would, could, or should have been available to the defendant following the breach of duty in question. The test is objective and prospective.’
Judges:
Sir Brian leveson P QBD, Haddon-Cave J, Inman QC HHJ
Citations:
[2017] EWCA Crim 1168, [2017] WLR(D) 537, [2017] 3 WLR 1461
Links:
Jurisdiction:
England and Wales
Cited by:
Cited – Kuddus v Regina CACD 16-May-2019
The defendant appealed his conviction for gross negligence manslaughter. He ran a takeaway food business. A meal was ordered by the victim through a third party website, adding that she suffered mild allergies. There was no evidence that the . .
Lists of cited by and citing cases may be incomplete.
Crime
Updated: 04 July 2022; Ref: scu.591699