Cases of gross negligence manslaughter, which is manslaughter caused by an individual as opposed to corporate manslaughter, appear to be on the increase. Andrew Christodoulou investigates.
On 6 April 2008, the Corporate Manslaughter and Corporate Homicide Act 2007 came into force throughout the UK and created a new statutory offence of corporate manslaughter. However, since that date there have been relatively few successful convictions of corporate manslaughter, particularly against large corporations.
On the other hand, cases of gross negligence manslaughter against individuals — that is manslaughter caused by an individual, as opposed to a corporation — appear to be on the increase and feature very regularly in our courts. Such cases apply not only to workplace deaths, but to life in general and mean that individuals in our society have very important responsibilities towards each other, which if not met can result in prosecution and penalties often including a custodial sentence.
So what is gross negligence manslaughter and how does it relate to responsibilities placed upon individuals in the Health and Safety at Work, etc Act 1974? How are such cases enforced and what are the penalties on conviction?
What is gross negligence manslaughter?
Gross negligence manslaughter can occur when someone is killed by someone else’s extreme carelessness; that is, gross negligence. There is no intention 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). It is a four-staged test, and the essential elements to be established to prove gross negligence manslaughter are as follows.
The defendant must owe a duty of care towards the deceased.
The defendant must have breached that duty of care.
The breach must have caused or significantly contributed to the death of the deceased.
The breach must be characterised as gross negligence and therefore considered a crime.
There can be further analysis of these tests as described below.
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.
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) for review and prosecution. 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. These legal requirements run in parallel to gross negligence manslaughter and are related and connected. Often in manslaughter prosecutions, cases under the Health and Safety at Work, etc Act 1974 and related regulations are also taken against the defendant.
The Sentencing Council is currently consulting on proposals for sentencing those convicted of manslaughter in England and Wales (gross negligence manslaughter is one of four types listed, see the What’s New Manslaughter sentencing consultation launched. It is the first time that comprehensive guidelines have been drawn up for such cases, which could include a workplace fatality caused by an employer’s negligence. It is hoped the guidelines will promote consistency and transparency in sentencing.
The proposed guidelines are based on an analysis of current sentencing practice, so are not expected to change sentencing levels except for a possible increase in sentences in gross negligence cases. The consultation runs until 10 October 2017.
In October 2015, Truro Crown Court sentenced a farmer and his employee to four years in jail over the death of a contractor who was electrocuted when his ladder touched an overhead power cable. Roger Matthews and his employee Norman Treseder were found to be “grossly negligent” following the death of 33-year-old Jason Morgan, from Bristol, who died while working at Great Brynn Barton Farm near Roche, Cornwall in June 2011.
In April 2017, a mother Lucy King was jailed for three and half years after her two-year-old daughter died when she swallowed a heroin substitute used by the mother. Ms King had left a cup containing methadone on the floor while she slept.
The prosecution said in court:
“That is the tragic reality. The failing was so basic, so far removed from the standard of care that a mother should owe to her child, that it was grossly negligent.”
In May 2017, a construction supervisor was jailed for a year for gross negligence manslaughter over the death of a lawyer crushed by half-tonne windows. Amanda Telfer, 43, was killed when a stack of large unglazed frames collapsed on her as she walked past a building site in central London. Members of the public rushed to help, but Telfer could not be saved and she was pronounced dead at the scene. A jury found the supervisor at IS Europe Ltd, Kelvin Adsett, guilty of manslaughter and breaching health and safety legislation.
Sentencing him to 12 months in prison, Judge Peter Rook QC told him: “Your actions contributed to the wholly needless and untimely death of Amanda Telfer.” The judge said he had shown “reckless disregard” for what was a life-threatening situation.
Also in May 2017, a company director admitted causing the death of a golf club worker who was found dead in a resort lake. Gareth Pugh, 29, of Glynneath, Neath Port Talbot, died on 11 February 2016 while collecting golf balls with a weighted belt and breathing equipment at Peterstone Golf Club, near Newport.
Dale Pike, 25, also of Glynneath, admitted manslaughter by gross negligence, in breach of a duty of care to Mr Pugh, who had ADHD and learning difficulties, at Cardiff Crown Court. In July 2017 he was sentenced to 32 months in prison.
These examples show that cases of gross negligence manslaughter are a regular occurrence in the courts. They also show that the need for individuals to take care of others applies not just to the workplace, but also to everyday life. Those who act extremely carelessly, and where this results in the death of another person, may be liable to prosecution and imprisonment. We all need to be alert to our responsibilities to others or face the consequences.
Last reviewed 27 July 2017