The criminal offence of gross negligence manslaughter is experiencing a renaissance after a number of recent and ongoing cases.
Sentences for gross negligence manslaughter are serious, and can stretch as far as life imprisonment. The recent example of the Bath Tipper Truck case resulted in sentences of seven years and six months in prison (for the company owner), and five years and three months (for the mechanic who failed to remedy brake defects). In this case, the fundamental failure was a lack of proper vehicle maintenance systems.
This recent example serves as a stark reminder of the duties owed by companies (and the people within) to its employees and members of the public. The essential elements of the offence are in fact very similar to the tort of negligence - with an extra factor required to justify criminalising the individual. Looking at these factors in more detail can help identify the particular risks faced by businesses.
Step 1 - The accused must have owed a duty to the deceased and that duty must have been breached
This step is decided on the normal principles of the tort of negligence. The well-established principles of Caparo v Dickman will be applied in novel cases, but many gross negligence cases will revolve around well-established duties, for example those:
- Between an employer and their employees
- Between vehicle users and pedestrians
- Between companies and members of the public affected by their undertaking.
Practically, companies will face an uphill struggle to argue that a duty was not owed in most situations. Companies will owe statutory duties to their employees and members of the public as a general rule.
Step 2 - That breach of duty must have caused the death of the deceased, and the death must have been reasonably foreseeable
As with the tort of negligence, the breach of duty must have been a substantial cause of the loss (in this case, the death). The more nuanced point is that death must have been reasonably foreseeable for the offence to be made out. Foresight of injury (or even serious injury) is not sufficient. As always the defendant does not need to have foresight of the death personally - it is enough that the reasonable person would foresee the risk.
Companies should consider where their operations pose a risk of death, however remote. Fire safety, electrical safety, use of vehicles and working at height are common risks within many companies, and should be considered carefully.
Step 3 - Was the defendant's conduct so bad, in all the circumstances, as to amount to a criminal act?
This step is the most important, and is the difference between a tortious civil claim and a criminal prosecution. Case law has established that criminal liability only arises where conduct has been "truly, exceptionally bad" or that a gross degree of negligence is present.
However, ultimately this decision is left to the jury's moral conscience rather than any technical or legal test. As such, there is a high degree of unpredictability, and the conduct and behaviour of individuals will be heavily scrutinised. What decisions were made and, more importantly, how they were made will be a key consideration for any jury in deciding whether to criminalise the defendant.
Businesses and in-house counsel should reflect on the practical risks posed by their business, and undertake a gap analysis to ensure that nothing has slipped past.