R v Adomako [1994] 3 WLR 288 House of Lords

The appellant was an anaesthetist in charge of a patient during an eye operation. During the operation an oxygen pipe became disconnected and the patient died. The appellant failed to notice or respond to obvious signs of disconnection. The jury convicted him of gross negligence manslaughter.

The Court of Appeal dismissed his appeal but certified the following question to the House of Lords:

"In cases of manslaughter by criminal negligence not involving driving but involving a breach of duty is it a sufficient direction to the jury to adopt the gross negligence test set out by the Court of Appeal in the present case following R. v. Bateman (1925) 19 Cr. App. R. 8 and Andrews v. Director of Public Prosecutions [1937] A.C. 576, without reference to the test of recklessness as defined in R. v. Lawrence (Stephen) [1982] A.C. 510 or as adapted to the circumstances of the
case?"

Held:

His conviction for gross negligence manslaughter was upheld. The Lords ruled that the law as stated in R v Seymour [1983] 2 A.C. 493 should no longer apply since the underlying statutory provisions on which it rested have now been repealed by the Road Traffic Act 1991.

The certified question was answered thus:

"In cases of manslaughter by criminal negligence involving a breach of duty, it is a sufficient direction to the jury to adopt the gross negligence test set out by the Court of Appeal in the present case following R. v. Bateman 19 Cr. App. R. 8 and Andrews v. Director of Public Prosecutions [1937] A.C. 576 and that it is not necessary to refer to the definition of recklessness in R. v. Lawrence [1982] A.C.
510, although it is perfectly open to the trial judge to use the word "reckless" in its ordinary meaning as part of his exposition of the law if he deems it appropriate in the circumstances of the particular case."
Lord Mackay LC set the test for gross negligence manslaughter:

"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. 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. This will depend on the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred. The jury will have to consider whether the extent to which the defendant's conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the patient, was such that it should be judged criminal.

The essence of the matter which is supremely a jury question is whether having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in their judgment to a criminal act or omission...

It is true that to a certain extent this involves an element of circularity, but in this branch of the law I do not believe that is fatal to its being correct as a test of how far conduct must depart from accepted standards to be characterised as criminal. This is necessarily a question of degree and an attempt to specify that degree more closely is I think likely to achieve only a spurious precision. "

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