Criminal Law Review. The duty of care in gross negligence manslaughter

Transcription

1 Page1 Criminal Law Review 2007 The duty of care in gross negligence manslaughter Jonathan Herring and Elaine Palser Subject: Criminal law. Other related subjects: Torts. Keywords: Breach of duty of care; Duty of care; Foreseeability; Manslaughter by gross negligence; Omissions; Public policy Cases: R. v Adomako (John Asare) [1995] 1 A.C. 171; Independent, July 1, 1994 (HL) Caparo Industries Plc v Dickman [1990] 2 A.C. 605; Daily Telegraph, February 15, 1990 (HL) R. v Willoughby (Keith Calverley) [2004] EWCA Crim 3365; [2005] 1 W.L.R (CA (Crim Div)) R. v Wacker (Perry) [2002] EWCA Crim 1944; [2003] Q.B (CA (Crim Div)) Sutherland Shire Council v Heyman [ ] P.N.L.R. 238 (HC (Aus)) *Crim. L.R. 24 Introduction It seems churlish in the extreme to complain that the Law Commission in its paper, A New Homicide Act for England and Wales, 1 failed to consider an important issue relating to manslaughter. The document is so packed with detailed analysis and argumentation that to ask for more would be greedy. But there is an important issue relating to gross negligence manslaughter which is left barely mentioned by the proposals, and that is the meaning of duty of care. The House of Lords decision of Adomako set out the basic definition of gross negligence. 2 The offence elements are well known and are as follows: 1. The defendant owed the victim a duty of care. 2. The defendant breached the duty of care. 3. The defendant's breach of duty caused the death. 4. The breach of the duty was gross. It is the fourth element which has attracted most academic attention. But in this article we will focus on the first. It was widely assumed following their Lordships' decision that the phrase duty of care meant the same as it does in the law of tort. This seemed a natural interpretation because no other meaning of the phrase was offered by Lord Mackay. Indeed this is how many of the textbooks have understood it. 3 However, recent decisions have cast doubt on this and have suggested that the term may not correspond to the tortious definition. Indeed it may not even be a legal term of art at all, but rather a phrase to be defined by the jury. So this article will first consider how the phrase duty of care is currently understood in the law on gross negligence manslaughter. It will then summarise how tort law understands *Crim. L.R. 25 the concept of a duty of care. Consideration will then be given to the proposed redefinition of gross negligence manslaughter in the Law Commission paper, which suggests the removal of the notion of duty of care. In its place it would be necessary to consider whether it would have been obvious to a reasonable person in the defendant's shoes that the conduct involved a risk of death. 4 This article will consider how a straightforward reasonable foreseeability test would differ from a duty of care approach and whether the former is preferable to the latter. Duty of care: what is the current law?

2 Page2 Two key questions in relation to the duty of care in gross negligence manslaughter are inter-related: what does the term duty of care mean in the context of gross negligence manslaughter? and is it the role of the jury or the judge to determine whether the duty of care arises on the facts? If duty of care is to have a technical legal meaning then it should be a question for the judge. However, if its meaning is the everyday meaning then it should be for the jury, although it might be wondered whether there could be an everyday meaning of a phrase like duty of care, which is hardly the favoured topic of conversation on the London tube. It is useful to summarise three views that are likely to be taken on the issue: VIEW 1. It is for the judge to decide when in law a duty of care arises. But it is for the jury to decide what the facts are. The judge may therefore direct the jury in terms such as: If you find the facts to be X then there is in law a duty of care. But if you find the facts to be Y there is no duty of care. The decision as to whether there is a duty of care is, then, in a sense both that of the jury and the judge. However, it is the judge, not the jury, who defines the term duty of care. VIEW 2. The jury are to decide not only what the facts are, but also the meaning of duty of care and whether there is a duty of care on those facts. VIEW 3. The definition of the duty of care is shared between a judge and a jury. The judge can decide whether in law there could be a duty of care, but if there could it is for the jury to decide whether or not there is. The judge, in a sense, has a veto, but at the end of the day it is for the jury to fine tune the definition of duty of care. The case law supporting view 1 The starting point must be the decision in Adomako 5 where Lord Mackay referred to the need to find a duty of care as part of establishing gross negligence: On this basis in my opinion the ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who has died. If such breach of duty is established the next question is whether that breach of duty caused the death of the victim. *Crim. L.R. 26 If so, the jury must go on to consider whether that breach of duty should be characterised as gross negligence and therefore as a crime. 6 The reference to the ordinary principles of the law of negligence appears to indicate that the phrase duty of care carries the meaning it has in tort law. If so it is a legal question. Therefore, applying the normal rule that it is for the judge to decide questions of law and the jury questions of fact it is for the judge to decide the legal requirements for a duty of care. Rose L.J. in Willoughby 7 did not interpret LordMackay's judgment as supporting view 1, that the judge decides the meaning of duty of care. He refers to the passage in Adomako quoted above and emphasises that the phrase the jury must go on as indicating that it is the jury's job to decide whether there is a duty of care. Although it is true that Lord Mackay's speech indicates that the jury do have a role in deciding whether there is a duty of care it is submitted that the most natural interpretation is that he is supporting view 1; that he is not saying the jury must define the concept of the duty of care, but rather that the jury must find the facts and follow the judge's direction on whether those facts give rise in law to a duty of care. Indeed Lord Mackay quoted with approval Bateman, 8 in which it was said explicitly that the civil law was used when determining whether there was negligence for the purposes of the criminal law. That said, it must be admitted, he did not undertake a review of the recent tort cases on the meaning of a duty of care, so whether he appreciated the full significance of using the tortious concept is a matter for debate. Later cases also support the view that view 1 is the correct interpretation. In Wacker 9 Kay L.J. accepts that in ordinary cases whether there was a duty of care was to be judged by the same legal criteria as governed whether there was a duty of care in the law of negligence. This dictum indicates that, although there are exceptions (a point we will come on to later), generally the phrase duty of care carries its ordinary tortious meaning. Also, in Singh (Gurphal ) 10 the Court of Appeal approved the trial judge's direction that on the facts a duty of care was owed, although it must be admitted that in that case there was no real discussion of the issue of whose job it was to decide whether or not there was a duty of care. 11

3 Page3 Case law support for view 2 or 3 The leading case against the view that the duty of care in gross negligence manslaughter is the same as that in tort is Willoughby. 12 There appears to be a clear statement by the Court of Appeal: whether a duty of care exists is a matter for the jury once the judge has decided that there is evidence capable of establishing a duty. 13 This seems to be a clear statement in support of view 3, that the jury has a role in deciding the meaning of the term duty of care. *Crim. L.R. 27 But there are a number of ambiguities in the judgment. At one point 14 Rose L.J. states: In the present case, we accept that there could not be a duty in law to look after the deceased's health and welfare arising merely from the fact that the defendant was the owner of the premises. But the fact that the defendant was the owner, that his public house was to be destroyed for his financial benefit, that he enlisted the deceased to take part in this enterprise, and that the deceased's role was to spread petrol inside were, in conjunction, factors which were capable, in law, of giving rise to a duty to the deceased on the part of the defendant. There are two points to emphasise about this passage. The first is that it is clear Rose L.J. regards the question of whether or not there is a duty of care as one of law. It is not one of fact, or a matter of opinion. On the other hand, he talks about the factors being capable in law of giving rise to a duty of care. This suggests that there is something to be added to these facts which determines whether or not there is a duty of care. But it is unclear what that is. A clue, perhaps, is his conclusion on his discussion of Wacker 15 that public policy considerations determine whether a duty of care exists. The missing element may therefore be that public policy can determine whether there should be a duty of care. In other words whether there is a duty of care is a mixture of a factual matrix and a policy justification. One possible interpretation, then, is that the judge decides whether the facts permit a legal finding of a duty of care and the jury decide whether there are public policy reasons for establishing the duty. All well and good, but why then is it the jury that determines those public policy questions? Is the jury equipped to answer such questions? Is the jury aware that what they are being asked is a matter of public policy, rather than a matter of justice in respect of the particular defendant? Another difficulty is the following statements of Rose L.J.: We add that there may be exceptional cases, for example where a duty of care obviously exists, such as that arising between doctor and patient, or where Parliament has imposed a particular type of statutory duty, in which the judge can properly direct the jury that a duty exists. But, for the reasons which we have sought to explain, that is a question normally for the jury's deliberation. 16 There is a problem here. The Court of Appeal appear to be using the phrase duty of care as a legal term of art. They suggest that there are some cases where the law is clear: there is a statutory duty of care or a very well-established duty of care, for example as between doctor and patient. 17 In that case the judge can declare there to be a duty of care. However, in borderline cases the jury can decide. This is, with respect, problematic. If we have a clear House of Lords case which declares there is a duty of care is that a category of an obvious case or not? What about *Crim. L.R. 28 a decision of the Court of Appeal? More importantly why does the question of whether there is a duty of care cease to be a legal question and become a jury question just because the law is not obvious? Willoughby has been interpreted in another way. Professor David Ormerod has suggested that all that is being said is that the judge should direct the jury that if they find the facts to be X then there is in law a duty of care, but if they find the facts to be Y then there is no duty of care. In other words it is supporting view 1, that the judge decides the meaning of duty of care. He states Willoughby does not relegate the duty question to one of fact. It remains a question of law, and the jury are to be directed on what the law is--i.e. whether a duty exists--if they find certain facts to be established. 18 This interpretation, however, does not fit with the statement that whether a duty of care exists is a matter for the jury once the judge has decided that there is evidence capable of establishing a duty. 19 More particularly it does not fit with the Court of Appeal's view that there was a conflict between the earlier authorities of Khan (Rungzabe ) 20 and Sinclair, 21 on the one hand and Singh (Gurphal) 22 on the other, with the Court of Appeal preferring the first two cases. The court summarised Singh as finding that the trial judge directed the jury that a duty of care was owed. 23 If Ormerod is correct, and

4 Page4 Willoughby is supporting view 1 but believed Singh was wrong, the court must have believed that Singh was a case where the judge had decided not only the meaning of duty of care but also whether there was a duty of care in the case. But that is hard to believe. No judge would see his role as to decide the facts of the case. Willoughby must have interpreted Singh as a case which suggested that the definition of a duty of care was a job just for the judge. If they thought that decision wrong, then the Court of Appeal in Willoughby were supporting view 3 and believed it was for the jury to decide whether or not there was a duty of care, as long as the judge thought conceivably there could, in law, be one. And its objection to Singh was precisely because the judge there believed it was his or her role to determine whether or not there was a duty of care. So the current law is unclear. Although the weight of authority supports the view that the meaning of duty of care matches that in tort, there is Court of Appeal authority for the view that a jury plays a role in deciding what duty of care means. It is time to consider what the tortious understanding of duty of care is. Duty of care in tort The current starting-point for determining the existence of a duty of care in negligence is generally considered to be the three-fold approach formulated by Lord Bridge in Caparo Industries v Dickman, 24 in which he summarised the effect of a series of previous decisions of the House of Lords and Privy Council in relation to the duty of care as follows: *Crim. L.R. 29 in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of proximity or neighbourhood and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other. Lord Bridge acknowledged, however, that these additional ingredients were insufficiently precise to be used as practical tests, and were little more than convenient labels to attach to the features of specific situations which, on a detailed examination of all the circumstances, the law recognises pragmatically as giving rise to a duty of care of a given scope. 25 He then went on to approve the view of Brennan J. in the High Court of Australia in Sutherland Shire Council v Heyman 26 that the law should develop novel categories of negligence incrementally and by analogy with established categories. 27 In Marc Rich & Co AG v Bishop Rock Marine Co Ltd (The Nicholas H ) 28 Lord Steyn confirmed that the Caparo factors apply whatever the nature of the harm sustained: since the decision in Dorset Yacht Co Ltd v Home Office [1970] AC 1004 it has been settled law that the elements of foreseeability and proximity as well as considerations of fairness, justice and reasonableness are relevant to all cases whatever the nature of the harm sustained by the plaintiff. 29 On Lord Steyn's view, it would appear that all three Caparo factors are relevant to the determination of the existence of a duty of care, although it must be assumed that, as a matter of both precedent and principle, where such a duty is already well established in the case law, these factors need not be considered. There is, however, some disagreement as to whether all of the Caparo factors are relevant in those cases where the nature of the harm sustained is direct physical damage, as it is in gross negligence manslaughter cases. In Alcock v Chief Constable of South Yorkshire Police, 30 Lord Keith said: in the ordinary case of direct physical injury suffered in an accident at work or elsewhere, reasonable foreseeability of the risk is indeed the only test that need be applied to determine liability. A similar view was taken by Lord Hobhouse in Perrett v Collins 31 : Where the defendant is involved in an activity which, if he is not careful, will create a foreseeable risk of personal injury to others, the defendant owes a duty of care to those others to act reasonably having regard to the *Crim. L.R. 30 existence of that risk. The limiting factors are the concepts of foreseeability and reasonableness. If Lord Keith and Lord Hobhouse are correct, then (apart from where the death could be said to arise

5 Page5 from an omission) all that has to be established in gross negligence manslaughter cases, in relation to the duty of care, is reasonable foreseeability. 32 Of course, it may be that whether all three factors are used in determining a duty of care, or reasonable forseeability alone is used, will, in practice, not matter. Only very rarely could it be said that even though the victim's death was reasonably foreseeable there was no proximity between them, or that it was not fair, just and reasonable to impose a duty of care. Lord Oliver stated in Caparo 33 : it is now clear that mere foreseeability is not of itself sufficient to ground liability unless by reason of the circumstances it itself constitutes also the element of proximity (as in the case of direct physical damage). and Lord Lloyd, dissenting in Marc Rich, 34 said that in such cases proximity, very often goes without saying. Nevertheless there might be a small band of cases where taking into account the other two Caparo factors could influence the outcome. It is necessary, therefore, to look further at the Caparo factors. The meaning of the Caparo factors The criterion of reasonable foreseeability focuses on the knowledge that someone in the defendant's position would be expected to possess. 35 This requires the court to consider what a reasonable person in the defendant's shoes would have foreseen. Whether the defendant did (or indeed could) have foreseen the risk is not relevant in establishing whether there was a duty of care. 36 The greater the awareness of the potential for harm, the more likely it is that this criterion will be satisfied. 37 If the risk of harm is far-fetched, a duty will not arise. 38 Thus, a speeding motorcyclist was not held liable to a passer-by who suffered a miscarriage shortly after experiencing the shock of hearing the motorcyclist collide with a car and subsequently seeing a pool of blood. 39 Proximity focuses on the relationship between the claimant and defendant. In the much-quoted Australian case of Sutherland Shire Council v Heyman, 40 Deane J. described the proximity requirement as follows: It involves the notion of nearness or closeness and embraces physical proximity (in the sense of space and time) between the person or property *Crim. L.R. 31 of the plaintiff and the person or property of the defendant, circumstantial proximity such as an overriding relationship of employer and employee or of a professional man and his client and what may (perhaps loosely) be referred to as causal proximity in the sense of the closeness or directness of the causal connection or relationship between the particular act or course of conduct and the loss or injury sustained. It may reflect an assumption by one party of a responsibility to take care to avoid or prevent injury, loss or damage to the person or property of another or reliance by one party upon such care being taken by the other in circumstances where the other party knew or ought to have known of that reliance. The meaning of proximity is, however, far from clear. It has been referred to as a slippery word (by Lord Nicholls in Stovin v Wise 41 ) and as now the key word, though it doesn t unlock many doors (by Weir). 42 In Caparo, Lord Bridge said proximity is just a convenient label identifying the features of different specific situations. In any event, as indicated above, proximity rarely adds anything in physical damage cases 43 and is thus of limited relevance to the duty of care in gross negligence manslaughter cases. The fair, just and reasonable head encompasses the amorphous issues of legal, social and public policy as well as considerations of fairness and justice as between the parties. 44 Factors the court may consider include: (a) whether imposing a duty would result in a flood of claims, placing too heavy a burden on a particular class of defendant and/or insurance companies 45 ; (b) whether imposing a duty might lead defendants to give up a socially-beneficial activity altogether or to take unnecessary and costly safety precautions 46 ; (c) the relative exposure to risk of the class of claimant and defendant concerned; (d) the availability of protection through insurance 47 or contractual arrangements 48 ; and

6 (e) whether the claimant will be left without a remedy. 49 Page6 The court has a considerable discretion in determining what is fair, just and reasonable, although the views of the general public may be relevant and, in this *Crim. L.R. 32 respect, Lord Steyn has twice considered the likely views of commuters on the London Underground. 50 Duty of care and omissions in the law of tort In some cases, death might arise out of a pure omission rather than a positive act, although the distinction is not always clear. The general rule is that there is no tortious liability for a pure omission: Smith v Littlewoods Organisation Ltd. 51 The exceptions arise where there is some sort of pre-tort relationship between the parties, such as: where there is a voluntary assumption of responsibility; 52 where there is a special relationship of vulnerability or control between parties (for example, the duty of a parent or school in relation to a child to ensure the child's safety and that he does not cause harm to third parties); where the defendant creates a source of danger; 53 or where the defendant's position as an occupier gives rise to a duty in respect of the safety of lawful visitors. Gross negligence manslaughter cases: a tort perspective Given the judicial acknowledgment that the ordinary principles of the law of negligence apply to the establishment of a duty of care in cases of gross negligence manslaughter, we consider below to what extent--if at all--the directions given and judgments in a number of the principal cases reflect and take account of those principles. In the leading case of Adomako 54 it was conceded at trial that the defendant had been negligent. 55 There was therefore no need to consider the duty of care and the focus was solely on the fourth element, namely gross negligence. Similarly, in Misra and Srivastava, 56 another case of medical negligence, no issue arose as to whether the defendants owed a duty of care to the deceased. In any event, it is well established in the case law that a doctor owes his patient a duty of care (although the exact nature and extent of that duty may vary in each case). Wacker 57 concerned the death of 60 illegal immigrants who suffocated when the defendant, who was transporting them in a refrigerated container lorry, closed the container's small air vent, prior to the ferry crossing at Dover, to prevent detection. The judge set out for the jury the four requirements for gross negligence manslaughter. He then went on to explain to them how in certain circumstances one person owes a duty to take reasonable care for the safety of another, indicating, with reference to the duty upon a motorist in relation to a pedestrian, that the essential feature was that the person ought reasonably to have foreseen that his conduct or omission, might cause injury to that person. He then said: *Crim. L.R. 33 if the driver knew that he was carrying 60 passengers and ought reasonably to have foreseen that his failure to take any reasonable care to see that there was adequate air or ventilation to sustain life was supplied to the container so that it might result in injury or loss of life, then that driver owed a duty of care to each and every occupant. 58 The judge therefore made a clear reference to reasonable foreseeability, as one would expect in a tort case involving personal injury. As indicated above, it is not clear whether, in such a case, all three Caparo factors are relevant and, if so, whether they must necessarily be considered or can simply be inferred. If the former is correct, then there is a strong argument that the directions were deficient, although the jury may have reached the same conclusion had they taken into account all three factors. Insofar as proximity is relevant, and to the extent that it can be said to have the meaning set out in Sutherland Shire Council, 59 it is strongly arguable that the proximity requirement is met in the form of physical, circumstantial and/or causal proximity, and/or an assumption of responsibility, and/or reliance. The court gave extensive public policy reasons as to why the defence of ex turpi causa, by which a successful claim may be barred where the claimant was involved in a criminal activity at the time she was harmed by the defendant should not apply. These reasons would weigh strongly in favour of imposing a duty under the fair, just and reasonable head. 60 Another issue raised by Wacker is the distinction between acts and omissions. Although the issue of

7 Page7 whether closing the vent and/or not opening it again might best be classified as an act or omission is mentioned in the judgment, 61 the court actually appears to make no finding on this (although the passing reference to a failure to act might suggest it was considered to be an omission). 62 The court did, however, state that they had: no difficulty in concluding that in these circumstances the defendant did voluntarily assume the duty of care for the Chinese in this regard. He was aware that no one's actions other than his own could realistically prevent the Chinese from suffocating to death 63 As already noted above, in the case of an omission a court may impose a duty where additionally there has been a voluntary assumption of responsibility, and indeed the court may have had this in mind when it referred to a voluntary assumption. However, the better interpretation is surely that the deaths were caused by the positive act of closing the vent, rather than by the subsequent failure to open the vent again (an omission which admittedly could have prevented the deaths). *Crim. L.R. 34 Nevertheless, even if the conduct is to be treated as an omission, there was a clear voluntary assumption of responsibility on the part of the defendant, arguably thereby giving rise to a duty of care. In summary, Wacker was decided broadly in line with the approach in tort, save of course that the defence of ex turpi causa may have defeated a claim in tort. Willoughby 64 is more troublesome from a tort perspective. The defendant recruited a man to help him to set fire to a disused public house which the defendant owned and on which there was a substantial mortgage. They spread petrol about the building and ignited it. In the explosion which followed, the premises collapsed and the man died. The judge set out for the jury the four requirements to establish gross negligence manslaughter. He then went on to direct them as to the duty of care as follows: we are concerned with the owner of a public house, who the Crown say engaged Derek Drury to assist him in destroying that public house by fire, and to be with him at the pub while the preparations for the arson were taking place. Even though both were engaged on such an enterprise, there was still a duty of care on the defendant, you may think, when Drury was on or near the defendant's premises, the Crown say to safeguard his health and welfare, to ensure that he would be safe from the risk of injury. If you are sure that those facts have been proved, then there is an evidential and a legal basis for you to say that a duty of care existed. 65 On appeal it was alleged that the direction was inadequate because it amounted to no more than that two men had set fire to the public house owned by one of them. The Court of Appeal held that there could not be a duty to look after the deceased's health and welfare arising merely from ownership of the premises, but that four factors taken in conjunction were sufficient to establish a duty, namely that: (a) the defendant was the owner; (b) his public house was to be destroyed for his financial benefit; (c) he enlisted the deceased to take part in this enterprise, and (d) the deceased's role was to spread petrol inside. 66 Having acknowledged that the ordinary principles of negligence apply, 67 it is surprising that neither the directions nor the judgment makes any reference whatsoever to the Caparo factors. The most one finds is a statement referred to by Counsel for the Crown which states that (a)ll the judge had to do was to identify the factors which might have given rise to proximity in the present case, without having to go into details of proximity as a legal concept. 68 No mention is made of reasonable foreseeability, although it may have been assumed that it went without saying that, if you enlist someone to spread petrol around your property with a view to setting it alight, physical harm to that person is a reasonably foreseeable risk. It is not, however, clear in what way the four factors set out by the Court of Appeal are relevant, but it is arguable that, although not expressed in these terms, they do go to the second and third Caparo factors. *Crim. L.R. 35 Relying on Sutherland Shire Council, 69 it is arguable that there was physical proximity, circumstantial proximity (the defendant enlisted the deceased's help) and causal proximity, particularly due to the fact the defendant had enlisted the deceased to play a part in the joint enterprise. It does not appear that the defendant voluntarily assumed a responsibility to look out for the deceased's welfare nor that the deceased relied on the defendant to take the necessary care for his welfare. As in Wacker, the court in Willoughby gave various public policy reasons for excluding the ex turpi causa defence which, along possibly with the financial benefit to the defendant, would also weigh heavily in favour of finding a duty of care in the context of the third Caparo factor. Public policy considerations were clearly a significant factor in both Wacker and Willoughby, although not directly in the context of the fair, just and reasonable head. In Willoughby, Rose L.J. stated that it was apparent that the court in R v Wacker were there accepting that public policy considerations

8 Page8 determine whether a duty of care exists. 70 Whilst it is not clear whether Rose L.J. was suggesting that it is only public policy considerations that determine whether a duty of care exists, such a view would clearly be incorrect: public policy issues are but one factor, and indeed one which, in the context of personal injury, may not even need to be considered. 71 One final difficulty in this case is whether the victim's death was caused by the omission of the defendant (in failing to ensure that adequate care was taken for the safety of the victim) or the positive acts of both the defendant and the victim (in spreading and/or igniting the petrol), and this is not a question on which the court sheds any light. If the conduct is characterised as an omission, it is still possible that a duty of care could have arisen in tort, absent the ex turpi causa defence, since where one is dealing with an omission a court may impose a duty where, additionally, the defendant has created a source of danger, as is strongly arguable here. 72 In spite of the recognition that the ordinary principles of the law of negligence apply to cases of gross negligence manslaughter, there seems to have been no consistent or accurate focus on the tort law requirements for establishing a duty of care. Whilst the Caparo factors do not amount to a precise or definitive test, they are indicative of the relevant considerations and it is striking that so little reference is made to them in this context. Whilst it may be argued that, given the existence of personal injury and the compelling public policy arguments in such cases, there is no need for any such detailed consideration, this is a view that remains largely unarticulated by the courts. It remains unclear therefore whether the term duty of care, as used in these cases, does in fact equate to the term as used in the law of tort. It may well be that in cases of gross negligence manslaughter the courts will separately develop a duty concept based on its own factors. If that is the case, it is surely time for a clear statement of the law. *Crim. L.R. 36 mean? If duty of care does not carry the tortious meaning, what could it If the courts decide that the phrase duty of care in gross negligence manslaughter does not share the tortious meaning, but has some other meaning, what could that be? In Sinclair 73 the jury, having been given the Adomako direction came back to the judge and asked for assistance over the meaning of duty of care. This is not surprising as the term is not one which is in ordinary usage. If the legal position is now that the jury play a role in defining the duty of care, what exactly is expected of them? Professor Ormerod has suggested: In cases of positive action by the accused, the duty should be easy to establish from the fact that a risk of death would be obvious to the ordinary prudent individual 74 As already mentioned the Law Commission have suggested that the law be reformed so that, in place of the concept of duty of care, the jury are simply asked whether death was reasonably foreseeable. 75 Indeed some support for this can be found in the case law. In Wacker 76 the fact that the death was foreseeable was emphasised as an important point in finding a duty of care. Further in R. (Lewin) v DPP 77 one of the reasons why the court held that the CPS had acted properly in not pursing a prosecution for gross negligence manslaughter was that it would not have been foreseeable to the defendant that leaving the drunk victim in a car on a hot day posed a risk of death. In this interpretation, duty of care means no more than the risk of death being reasonably foreseeable. There would then be no difficulty in such a question being left to the jury. It would avoid the technicalities of the law of tort, although, as we have seen, the phrase, duty of care, in the law of tort often means no more than reasonable foreseeability. What should the law be? Should the criminal law use the understanding of a duty of care in the law of tort? Would it not be easier to use a test based simply on whether it was reasonably foreseeable that an act of the defendant could cause the victim's death, as the Law Commission have suggested? Cases where the criminal law may not want to match the civil law The blameworthiness of the victim. The law of tort involves a claim by one party against another. This

9 Page9 can involve the court in assessing the extent to which both parties may be responsible for the resulting harm. The law of tort can recognise this in one of three ways. First, if the claimant is partly responsible for their loss then the amount awarded may be reduced on account of contributory negligence. Secondly, if the claimant has put himself in a position where injury was inevitable his claim may be defeated on the basis of the principle volenti non fit injuria. Thirdly, *Crim. L.R. 37 if the claimant is not deserving of an award because at the time of the injury he or she was committing a criminal offence then the principle of ex turpi causa can lead to a defeated claim. In all of these three the claimant is restricted in her claim due to fault or at least responsibility on her behalf. However, criminal proceedings are brought by the state and not by the victim. Hence the culpability of the victim is not relevant to the guilt of the defendant. A defendant charged with burglary will have no defence that the victim was foolish in leaving her house unlocked and was therefore partly responsible for the crime. This is the point behind the Wacker 78 decision. Although the victims were committing a crime and had even consented to the dangerous activity this was irrelevant to the guilt of the accused. Criminal proceedings are not about balancing the responsibility between the defendant and the victim, but in determining whether the activity engaged in by the defendant is sufficiently harmful and blameworthy in the eyes of the state to justify a criminal conviction. Kay L.J. put it this way in Wacker : Why is there, therefore, this distinction between the approach of the civil law and the criminal law? The answer is that the very same public policy that causes the civil courts to refuse the claim points in a quite different direction in considering a criminal offence. The criminal law has as its function the protection of citizens and gives effect to the state's duty to try those who have deprived citizens of their rights of life, limb or property. It may very well step in at the precise moment when civil courts withdraw because of this very different function. The withdrawal of a civil remedy has nothing to do with whether as a matter of public policy the criminal law applies. The criminal law should not be disapplied just because the civil law is disapplied. It has its own public policy aim which may require a different approach to the involvement of the law. 79 So the compensatory heart of the law of tort may require different factors to be considered in assessing a duty of care than the criminal law. Omissions. In general the criminal law is reluctant to impose criminal responsibility for omissions. There are several reasons for this, and it is not possible to go into them all here, but one is the law's reluctance to restrict an individual's freedom by compelling someone to act in a particular way if she is to avoid criminal liability. As is well known, a defendant can only be guilty in connection with an omission in English criminal law where there is a duty to act. Confusingly this duty is said to arise in cases where the defendant has assumed a duty of care towards the victim. This is, however, not to be confused with the term duty of care in the Adomako test or the tortious meaning. That said, where there is a duty to act there is almost inevitably a duty of care. So, although an occupier might be liable in tort in failing to take steps to protect a visitor, there would be no criminal liability in respect of such an omission, unless there was a special relationship or assumption of responsibility between the owner and the visitor. This, however, would not be due to a difference in understanding over the term duty of care, but rather because *Crim. L.R. 38 there would not be a duty to act, which is required under criminal law for there to be liability for an omission. Cases where a duty of care approach would be preferable to a reasonable foreseeability approach There are a number of tort cases where, although it was foreseeable that the act or omission of the defendant would cause a loss to the victim, no duty of care was found. As already discussed, whether this applies in cases involving physical injury is unclear, but assuming it does, in what kind of cases might a duty of care not arise? The most obvious category would be cases where imposing a duty would lead to defendants giving up a socially beneficial activity or taking unnecessary safety precautions. 80 In JD v East Berkshire Community Health Trust 81 their Lordships decided that a doctor or social worker who reported concerns about child abuse to the authorities did not owe the parents of the children a duty of care. One powerful factor was that imposing such a duty on the doctors or social workers may interfere with the duty owed to the child. Presumably what their Lordships were concerned about was that imposing a duty of care towards parents might mean that doctors or social workers would be reluctant to report to the authorities some suspicions of abuse for fear of being sued by the parents. It is perhaps not

10 Page10 impossible that a similar issue could arise in a criminal case. If a social worker was aware that a mentally-ill parent was suicidal and was liable to commit suicide if a report of a suspicion of child abuse was made, she may be reluctant to report abuse for fear of a manslaughter conviction. 82 Such arguments might be thought to be even stronger in criminal cases than tort claims. If we do not want our decision-maker put off her job by the fear of being sued in negligence we certainly do not want her put off by the even greater fear of a criminal prosecution. This argument would lead one to conclude that, where a duty of care is denied in tort due to such a public policy, criminal law should follow suit. However, that may be to move too quickly. The liability in tort will follow from a finding of negligence. For a criminal prosecution it will be necessary to find that the negligence is gross. So, although a decision-maker may have a nagging fear that her decision could possibly be found to be unreasonable, she should not ever fear that the her decision could be categorised as gross. That said, it may be replied that the distinction between negligence and gross negligence is one that that may be appreciated by lawyers and not by the decision-makers themselves. A forseeability plus test As we have seen, there are problems with using only reasonable foreseeability, and also problems with using the concept of a duty of care in the law of tort, but, the alternatives for the law of gross negligence manslaughter are not just foreseeability or the duty of care in tort. It would be possible to develop a test which would be a criminal law version of the tort one. It could, for example, ask whether it was *Crim. L.R. 39 reasonably foreseeable that an act or an omission of the defendant would cause the death of the victim and that it was just and reasonable to hold the defendant liable under criminal law for the death. This might appeal if it is accepted that foreseeability alone is not sufficient and that there may be public policy arguments for not imposing a criminal duty of care in some cases. In effect this proposal would be putting the tort law duty of care in terms readily comprehensible to the jury. Further, if it is accepted that there is a sufficient number of cases where the tortious definition is inappropriate in a criminal law context, it would be preferable for criminal law to develop its own version of the idea. The major disadvantage with this approach is that it would produce uncertainty. We would not know, until the case law developed significantly whether a particular scenario was one where reasonable foreseeability alone was sufficient or not. At least sticking with the tort definition would provide a degree more certainty due to the extensive case law on the issue. Conclusion This article has sought to consider the meaning of duty of care in the offence of gross negligence manslaughter. It would appear from the case law that, despite the clear indication in Adomako that the ordinary principles of negligence apply, there remains considerable uncertainty as to the appropriate test, with directions given to juries varying significantly in approach. As a result, it is difficult to conclude that the test being applied (if there is any consistent test) is entirely in line with that adopted in tort. This has led to confusion as to whether the duty of care is regarded as a matter for the judge or for the jury. What is clear is that there is a real need for greater clarity and consistency in this respect, and that raises the broader question of whether it is appropriate to use the tort test or whether criminal law should develop its own, such as a test based on reasonable foreseeablity alone. An approach based simply on reasonable foreseeability may also lead to a conflict with the policy underlying tort law where it has been decided that certain people performing certain tasks should be free from the fear of litigation. The benefit of using the tort test is that it encapsulates restrictions on liability based on policy and principle which would otherwise be lost with a straight-forward reasonable foreseeability test. However, there are important ways in which the relevant issues of principle and policy may differ between tort and criminal law, as is demonstrated in the deviation of the courts from tort law principles in certain respects, such as where the ex turpi causa test would apply. Whilst there may be some areas in which policy considerations and objectives differ between tort and criminal law, only rarely will these justify a significant deviation from the well-established principles governing the tortious duty of care, upon which Adomako clearly appears to have been predicated. In this light, though there may be calls for the criminal law to develop its own understanding of the duty of care, distinct from that in tort, we would suggest that use is made of the development of the concept of a duty of care in the law of tort as the normal meaning of duty of care in gross negligence

11 Page11 manslaughter but recognising that there may be rare cases where the judge can direct that the tortious duty will not be relied upon. These will be in cases where the blameworthiness of the victim leads to there being no duty of care in tort when it may still be appropriate to *Crim. L.R. 40 impose a criminal liability (e.g. the ex turpi causa doctrine) and cases involving omissions, where the court will need to find not only a duty of care, but also a duty to act. Such an approach is the best way to achieve clarity and consistency in the law. We are grateful for the comments of Rebecca Williams and Emily Finch on drafts of this paper. The usual caveats apply. Crim. L.R. 2007, Jan, The Law Commission, A New Homicide Act For England And Wales? (Consultation Paper No.177, 2005). 2. [1995] 1 A.C e.g. D. Ormerod, Smith and Hogan Criminal Law (11th edn, Oxford University Press, 2005), at p.484. But see A. Ashworth, Principles of Criminal Law (4th edn, 2003), at p.298 who seems to take the view that the definition of a duty of care should be resolved on case by case basis and C. Clarkson and H. Keating, Criminal Law (Sweet and Maxwell, 2003), at p.655 who state emphatically that, concepts such as duty of care and breach do not bear the same meaning in the criminal law as under the law of tort. 4. The Law Commission, A New Homicide Act For England And Wales? An Overview (Consultation Paper No.177, 2005), at para [1995] 1 A.C [1995] 1 A.C. at p [2004] EWCA Crim 3365; [2005] 1 Cr.App.R. 29 at [22]. 8. (1925) 19 Cr.App.R [2003] Q.B at [37]. 10. [1999] Crim. L.R The point may have been conceded by the prosecution: D. Ormerod Commentary [2005] Crim. L.R. 389 at p [2004] EWCA Crim 3365; [2005] 1 Cr.App.R ibid., at [24]. 14. fn.12 above, at [20]. 15. [2003] Q.B at [20]. 16. [2003] Q.B at [23]. 17. In Nationwide Heating Services Ltd [2004] EWCA Crim 2490 the trial judge, whose direction was approved by the Court of Appeal, simply told the jury that an employer owed an employee a duty of care. 18. D. Ormerod, Commentary [2005] Crim. L.R. 389 at p [2004] EWCA Crim 3365; [2005] 1 Cr.App.R. 29 at [24]. 20. [1998] Crim. L.R (1998) 148 N.J.L [1999] Crim. L.R [2004] EWCA Crim 3365; [2005] 1 Cr.App.R. 29 at [24]. 24. [1990] 2 A.C. 605 at pp [1990] 2 A.C. 605 at p.618.

12 Page (1985) 60 A.L.R. 1 at pp [1990] 2 A.C. 605 at p [1996] A.C. 211 at pp Note that Lord Bridge also indicated that the Caparo factors are applicable in any situation [1990] 2 A.C. 605 at p [1992] 1 A.C. 310 at p [1998] 2 Lloyd's Rep See also Murphy v Brentwood District Council [1991] 1 A.C. 398 at pp and Mobil Oil Hong Kong Ltd and Dow Chemical (Hong Kong) Ltd v Hong Kong United Dockyards Ltd (The Hua Lien) [1991] 1 Lloyd's Rep. 309 at pp [1990] 2 A.C. 605 at p [1996] A.C. 211 at pp Clerk and Lindsell on Torts (18th edn, Sweet and Maxwell, 2001), at It could, however, be relevant in considering whether or not there was a breach. So although a child might owe a victim a duty of care, if she acted reasonably for a child there would be no breach. 37. Clerk and Lindsell on Torts (18th edn, Sweet and Maxwell, 2001), at Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty [1967] 1 A.C. 617 at p Bourhill v Young [1943] A.C (1985) 60 A.L.R. 1 at pp [1996] A.C. 923 at p A. Weir, Fixing the Foundations (1991) 50 C.L.J. 24 at p Marc Rich & Co AG v Bishop Rock Marine Co Ltd (The Nicholas H ) [1996] A.C. 211 at pp Clerk and Lindsell on Torts (18th edn, Sweet and Maxwell, 2001), at This is the so-called floodgates argument. 46. This is the so-called overkill argument. Such concerns are particularly strong in cases concerning the police and local authorities providing key social services. 47. Morgan Crucible v Hill Samuel [1991] Ch. 295 at p Pacific Associates Inc v Baxter [1990] 1 Q.B. 993 at p The lack of availability of an alternative remedy was crucial to the decision to impose a duty in Donoghue v Stevenson [1932] A.C. 562; White v Jones [1995] 2 A.C. 207; and Spring v Guardian Assurance Plc [1995] 2 A.C Frost v Chief Constable of South Yorkshire Police [1999] 2 A.C. 455 at pp.494, 1542 and McFarlane v Tayside Health Board [2000] 2 A.C. 59 at p [1987] 2 A.C. 241 at p For example, in Stansbie v Troman [1948] 2 K.B. 48 a decorator agreed to lock the premises on leaving (a voluntary assumption of responsibility) but failed to do so and property was subsequently stolen by thieves. 53. Haynes v Harwood [1935] 1 K.B [1995] 1 A.C [1995] 1 A.C. 171 at p [2005] 1 Cr.App.R [2003] Q.B [2003] Q.B at p (1985) 60 A.L.R. 1