In addition to involuntary manslaughter and reckless manslaughter there is a third category of manslaughter called gross negligence manslaughter. The test that is to be applied in order to determine if the defendant is guilty of gross negligence manslaughter or otherwise is the test in R v Cunningham (1957) and what is required is as follows:-
(1) An actual intention to do the particular kind of harm that in fact was
(2) Recklessness as to whether such harm should occur or not. It is neither limited to nor does it indeed require any ill will towards the person injured.
However subjective recklessness is not a prerequisite to obtaining a conviction for gross negligence manslaughter if it can be proven that the conduct of the defendant was reckless see A-G’s ref no 2 of 1999 (2000).
Between R v Cunningham (1957) and A-G’s ref no 2 of 1999 (2000) there were a series of cases that broadened the scope of liability and the restrictive approach in R v Cunningham (1957) was widened in R v Lawrence (1981). The cases dealt with deaths caused by reckless driving.
The court in R v Lawrence (1981) held that in order for a rider or a driver to be guilty of manslaughter the following criteria or requirements had to be satisfied:-
1) The accused was riding or driving in a manner that created an obvious and serious risk to other road users and property.
2) The rider or the driver by riding or driving in the manner he or she did, did not give thought to the risk or having given it some thought dismissed it.
The test in R v Lawrence (1981) has an objective element in it. For example when deciding if the accused was riding or driving in a manner that created an obvious and serious risk to other road users, the benchmark that is to be used to determine whether there was an obvious and serious risk to other road users is that of the reasonable man
The decision in R v Lawrence (1981) was reaffirmed in two other cases. In both cases the deaths were caused by either reckless driving or reckless piloting of a craft . The cases are:-
- R v Seymour (1983)
- Kong Cheuk Kwan v The Queen (1985)
At that stage the courts had yet to introduce the duty of care principle which was largely applied and limited to civil cases into criminal law and they first did so in the case of R v Adomako (1994).
The facts of the case were different from the facts of R v Lawrence (1981), R v Seymour (1983) and Kong Cheuk Kwan v The Queen (1985) and it is fair to say that the test in R v Lawrence (1981) should be limited to cases involving reckless driving.
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