The duty of care principle that was applied in R v Adomako (1994) is similar to the duty of care principle that is applied in Tort or negligence (civil negligence) and the prosecution must establish duty, breach and causation.
The elements that are required for a conviction are as follows: –
- The defendant must owe the victim a duty of care
- The defendant must have breached that duty of care
- The breach of the duty must have caused the death of the victim and
- The conduct of the defendant was so bad (gross) that a crime could easily be inferred.
Gross negligence is a strict liability offence and therefore there is no need to establish the mens rea or satisfy the mental element. It can be inferred from the defendant’s conduct.
In A-G’s ref no 2 of 1999 (2000) the defendant, a rail operator, was charged with manslaughter, following a train accident in which 7 passengers lost their lives. During the trial it became evident that despite the driver being an experienced driver, relevant safety procedures were not observed and it was the lack of compliance or the inability to comply with the stipulated safety procedures at the time, that had caused the accident.
One of the questions that was asked was can the defendant be convicted of gross negligence without taking into account the defendant’s state of mind? The answer is yes. The test that is to be applied is the objective test and the defendant can be convicted for gross negligence manslaughter without taking into account his state of mind, though it is easier to do so if it can be established that he was reckless. It (gross negligence) is a strict liability offence and therefore there is no need to establish the mens rea (or the mental element).
Copyright © 2018 by Dyarne Ward