GNM Essay Model Answer

• Prima facie, the defendant (state name) may be charged with the Common Law Offence of Gross Negligence Manslaughter (GNM) in relation to the death of the victim, (state name), when (state what happened).
• R v Adomako initially set out the test; there must be a duty of care, there is a breach of that duty which causes death and the negligence must be grossly negligent. There must also be an obvious risk of death. All must be satisfied for the d to be convicted.
• A duty of care must first be established. A duty of care can arise in certain situations where the defendant fails to act when he has a responsibility to act or a relationship of protection. This is based on the civil tort of negligence initially established in the 'neighbour principle' from Donoghue v Stevenson. This shown that a duty of care was owed to 'anyone directly affected by your acts or omissions that one should have in their contemplation.'
• This was narrowed in Caparo v Dickman where a three part test must be satisfied: was there foreseeability of harm, proximity between the D and V and the policy test of whether it is fair, just and reasonable to impose a duty of care. However, the Supreme Court in the recent case of Robinson established two ways of deciding if a duty of care exists: if the case deals with an existing duty of care there is no need to look at the 3 part test from Caparo v Dickman. But, if it's a novel case then Caparo v Dickman can be used to guide the court.
• Next, it must be established that there was a breach of duty. The d will be judged against whether they fell below the standard of a reasonable man performing the same activity which is an objective test (Blythe v Birmingham Waterworks). Professionals, learners and children will be judged against different standards.
• The breach of duty must cause death. The d is/is not the factual cause of the V's death as 'but for' (apply) the v would/would not have died (White).
• Under legal causation, the d is/is not de minimis as he is/is not more than a minor cause of harm to the v (Apply) (Kimsey).
• Whether the d is the operating and substantial cause and the most to blame for the V's death will also need to be considered (Smith). The Court will consider whether there were any novus actus interveniens that could have broken the chain of causation (Apply).
• The Court also need to decide whether the D's actions were grossly negligent. According to Lord Hewart in R v Bateman, grossly negligent means 'going beyond mere compensation and showing such disregard for the life and safety of others as to amount to criminal punishment.'
• In R v Finlay, he didn't follow some safety procedures whilst climbing a mountain which was not grossly negligent. In R v Zaman, it was grossly negligent as there was a disregard for the life and safety through the ignoration of the Trading standard warnings about allergens in his food and serving the V food containing peanut sauce despite the V requesting no peanut due to allergies.
• There must be a clear risk of death from the defendant's actions or omissions (Misra).
• In conclusion, there is/is not enough evidence to argue that the defendant will/will not be found guilty of the common law offence of GNM of the victim. Subject to any defence, if convicted they can receive up to a life sentence at the discretion of the Judge.