R v Willoughby [2004] EWCA Crim 3365 Court of Appeal


The appellant owned an old disused pub. He had become increasingly in debt and was unable to sell the pub. He engaged Mr Drury to help him set fire to the pub in order to claim on the insurance. Unfortunately during the course of igniting the fire an explosion occurred resulting in the building collapsing on Mr Drury killing him. The appellant was convicted of gross negligence manslaughter. He appealed contending that no duty of care was owed in the circumstances.

Held:


The appeal was dismissed. The appellant's conviction was upheld.

The Vice President:

"In the light of the illuminating analysis of principle in Wacker, with which we respectfully agree, and the other authorities and principles to which we have referred, we can summarise our conclusions in relation to the present appeal as follows:


(i) It would have been preferable and much simpler if this case had been left to the jury on the basis of death caused by an unlawful and dangerous act.

(ii) A verdict of manslaughter may, depending on the circumstances, be appropriate both by reason of an unlawful and dangerous act, and by reason of gross negligence.

(iii) 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.

(iv) There was here evidence for the jury's consideration in the four factors which we earlier identified, capable, in conjunction, of establishing a duty.

(v) In so far as the judge focused on ownership as giving rise to a duty, that was a misdirection. But it was not a material misdirection, having regard to his correct identification of the further relevant factors that the appellant engaged the deceased to participate in spreading petrol with a view to setting fire to the appellant's premises for the appellant's benefit.

(vi) Even if there were a material misdirection in relation to duty of care, in our judgment, in the light of the jury's verdict in relation to arson, there is no proper basis on which it can be said that their verdict in relation to manslaughter is unsafe.

Accordingly, this appeal against conviction must be dismissed."

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