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Gross negligence manslaughter

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Cases of gross negligence manslaughter are common, with several charges so far this year. Andrew Christodoulou examines how this offence is defined in law, what the penalties are and some recent prosecutions.

The Corporate Manslaughter and Corporate Homicide Act 2007 introduced a new offence of corporate manslaughter. While an important criteria for the new offence is the behaviour of individuals, and in particular that of senior managers, the offence of corporate manslaughter by definition does not apply to individuals, only corporations.

When the Act came into force, the manslaughter law, which applies to individuals, was not amended and is still in full force. In terms of health and safety incidents, the law of gross negligence manslaughter is applied to individuals and cases are common.

So what is gross negligence manslaughter? What constitutes an offence? What are the penalties? How can an individual avoid conviction?

What is gross negligence manslaughter?

Gross negligence manslaughter is a form of involuntary manslaughter where a person causes another person’s death, but without any intent to kill or harm that person.

In the case of gross negligence manslaughter the death is a result of a grossly negligent act (or omission) on the part of the defendant. Case law has determined that there is a test, which has to be applied to show gross negligence manslaughter. The stages are as follows.

  • The existence of a duty of care to the deceased.

  • A breach of that duty of care which:

    • causes (or significantly contributes to) the death of the victim

    • is characterised as gross negligence.

This test might appear complex but, when analysed, the stages should be familiar to health and safety managers and line managers who have received training on health and safety matters.

The duty of care

The question of when a duty of care is owed to someone was established in the landmark case of Donoghue v Stevenson [1932] UKHL 100, sometimes known as the “snail in the bottle” case. In this case it was established that a duty of care is owed to our “neighbours”. A neighbour is defined as someone whom one might reasonably foresee could be injured by our acts and omissions. The definition has been developed by a number of other cases.

In practice this means that a duty of care is owed by employers to their employees, landlords to their tenants, contractors to members of the public, employers to contractors, occupiers to trespassers and so on.

A breach of the duty of care

The law of negligence applies here and those with a duty of care must act in a “reasonable” manner. This is an objective test, but in health and safety at work cases, compliance with health and safety legislation might be an indicator of whether someone has acted in a reasonable manner in the situation under scrutiny.

Causation

Of particular relevance is the case of R v HM Coroner for Inner London, ex p. Douglas-Williams (1999) 1 All ER 344. Lord Woolf’s statement, that “negligence must have caused the death in the sense that it more than minimally, negligibly or trivially contributed to the death”, will be used as a guide to help determine causation in gross negligence cases.

The grossness of the breach

It will be up to a jury to decide whether the defendant’s conduct was so poor as to constitute a “gross breach”. The Corporate Manslaughter and Corporate Homicide Act 2007 defines this as behaviour which falls far below what could reasonably be expected in the circumstances. Again, what is required by health and safety legislation and guidance may be a helpful guide. Some case law has described a gross breach as that resulting from reprehensible behaviour.

Enforcement and penalties

The police investigate suspected cases of manslaughter. Prosecution decisions are made by the Crown Prosecution Service in England and Wales, the Crown Office and Procurator Fiscal Service in Scotland and the Director of Public Prosecutions in Northern Ireland. The Health and Safety Executive is involved through a joint approach to work-related deaths between all the relevant regulatory authorities in line with the principles of the Work-related Deaths Protocol.

The maximum penalty for those convicted of gross negligence manslaughter is life imprisonment. The factors which may be involved in deciding the length of any prison term include whether:

  • multiple deaths were involved

  • the case involved a prolonged and dangerous course of conduct

  • there was an awareness of a significant risk of death or really serious injury

  • warnings had been ignored

  • the defendant was pursuing a course of conduct for financial gain.

Health and safety cases

Cases of gross negligence manslaughter linked to health and safety at work issues are common and there have been several charges so far this year. The charges are often combined with offences under health and safety legislation, such as the Health and Safety at Work, etc Act 1974 (HSWA) and also corporate manslaughter.

Malcolm Fyfield, the manager of the Gleision coalmine in South Wales where four men died after it flooded has been charged with gross negligence manslaughter, while the mine owner MNS Mining Ltd faces charges of corporate manslaughter.

In another case, a company director has been charged with gross negligence manslaughter after a little girl was crushed by an electronic gate. Six-year-old Semelia Campbell died when the motorised gate closed on her as she played. Kristian Kearns, the director of the company that automated the gate, has been charged with gross negligence manslaughter.

A structural engineer, Barry Potts, has been charged with gross negligence manslaughter along with health and safety offences following the deaths of two men killed when a wall collapsed on them at a building site in Suffolk.

In April 2007, 15-year-old Adam Gosling was employed by subcontractor Maldon Groundworks as a labourer to work on a large scale landscaping project. Work was being carried out on a swimming pool and the pool house had to be demolished. The project manager Darren Fowler had previously been warned that a cracked wall at the pool house made it unsafe and should be carefully dismantled. Instead, sledgehammers were used. When the wall started to lean over, Adam was asked to pull it back; it collapsed on him and he was killed. Colin Holtom, the builder involved, was jailed for three years after pleading guilty to gross negligence manslaughter. Darren Fowler was jailed for 12 months after admitting breaches of the HSWA. He was also disqualified from being a company director.

Conclusions

Cases of gross negligence manslaughter are relatively common and much more so than cases of corporate manslaughter. The cases are a reminder of each individual’s responsibility for the health and safety of others.

The recent news that the train driver involved in the terrible Spanish train crash faces charges of “reckless homicide” reinforces the stark reality that individuals can go to prison if they do not take care of others. The only way to prevent a potential situation leading to a charge of gross negligence manslaughter is to behave responsibility and always treat health and safety in a serious and proactive manner. Anything less can lead to a lengthy prison sentence.

Last updated 14 August 2013

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