and how does it relate to responsibilities placed upon individuals (s36) and Leaders s3&) in the Health and Safety at Work, etc Act 1974?
Gross negligence manslaughter occurs when someone is killed by someone else’s lack of care; that is, gross negligence.
There is no intent to kill or harm that person and consequently gross negligence manslaughter is often described as a type of involuntary manslaughter.
An individual can be deemed to be grossly negligent in relation to their acts and omissions, ie the actions they take or fail to take.
The legal test for manslaughter by gross negligence was confirmed by the House of Lords in R v Adomako (1995). Through a 4r-staged test, to prove gross negligence manslaughter:
1. The defendant must owe a duty of care towards the deceased
2. The defendant must have breached that duty of care
3. The breach must have caused or significantly contributed to the
death of the deceased
4. The breach must be characterised as gross negligence and
therefore considered a crime
Duty of care – There are many ways in which a duty of care can arise between one individual and another. The early and well known case of Donoghue v Stevenson 1932, (the “snail in the bottle” case) outlined the so-called “neighbour principle” to help establish whether a duty of care was owed by one party to another. So under the principle, for example, employers have a duty of care to their employees. In work-related death cases it may be established that employees or directors within the same company owed the deceased a duty of care.
Breach of duty – A breach of a duty of care arises if an individual who owes the duty fails to act as a reasonable person would do in their position. This is an objective test and will be based upon the defendant’s position at the time of the breach. Therefore, if the individual has acted within the range of what was generally accepted as being the standard practice, it will be difficult to describe such behaviour as falling far below the standard of a reasonable person in his position and the contrary.
Grossness of the breach – It is for a jury to decide whether the defendant’s conduct was so bad, in all the circumstances, as to amount to a criminal act or omission. In work-related death cases this may require the jury to consider any applicable standards, Approved Codes of Practice or guidance and how far below these standards the individual’s conduct fell. In plain English, defendants will be judged on their degree of carelessness or recklessness, and it must be extreme to be regarded as gross negligence, ie it amounts to a criminal act or omission. It is not just a very serious mistake or error in judgment.
The law states that the breach of duty must have caused the death in the sense that it more than minimally, negligibly or trivially contributed to the death.
Once these conditions are met cases of gross negligence manslaughter can be brought.
The police are responsible for investigating potential cases of manslaughter and for referring them to the Crown Prosecution Service (CPS) .
Custodial sentences are available on conviction of gross negligence manslaughter up to a maximum of life imprisonment.
There are of course other legal responsibilities on individuals in the workplace to take care of others and these include, in particular, ss.7, 36 and 37 of the Health and Safety at Work, etc 1974.
In the context of health and safety, relevant factors may include the seriousness of the offence where the offender showed a blatant disregard for a very high risk of death.
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