Gareth and Amanda Edwards14 were found guilty of manslaughter through gross negligence, after their daughter and a friend were killed while playing on a railway line by a high-speed train as they dropped stones through the gaps in a railway bridge. Parents have a duty of care to their children, and this case shows that judges are not going to say 'it was an unfortunate accident' to these cases, the girls where left on the train track unsupervised for over half an hour. Although what Harriet suggested to Tom was wrong, can you put her on the same level of gross negligence, even if a duty of care was present?
There was also no contractual duty of care towards Tom, this would only emerge if Tom was in some way contracted to Harriet. In the case of Adamako (1994)15 the surgeon was guilty of gross negligence and has confirmed that liability still exists for killing by gross negligence in common law. The Concise Oxford dictionary defines the term of recklessness as 'lacking caution regardless of consequences, rash, heedless of danger' Harriet it seems simply gave no thought to the consequences of her prompting Tom to stand on the cliff edge, so does this make her reckless?
There was no malice what so ever in Harriet's encouragement, a subjective test of recklessness would be, if she had foreseen the consequences of such actions. Stephenson (1979)16 proved that even though he was classed as having schizophrenia he was found guilty of closing his mind to the obvious facts of risks from his act. Harriet was not closing her mind to the obvious risk, but was not foreseeing a potential risk. Courts in recent years have chosen to see a duty of care of common law, within reliance.
With Harriet advising Tom to stand on the edge, did this mean that she would be there to protect him if anything went wrong? In the case of R v Stone and Dobinson (1977)17 they had a duty of care arising from their voluntarily assuming the responsibility for looking after Stone's sister, even though Dobinson was not a relative, he was convicted of manslaughter. Harriet I feel had no idea how much Tom was afraid of heights, almost as if she did not believe him, she made her error when she refused to pull him back, surely if Tom said he felt dizzy an instant reaction would be to do so?
The duty of care is present, as Harriet encouraged Tom to stand on the edge, almost as if to say 'i am right here behind you' she willingly put herself in that position. When someone feels dizzy they loose balance and any person of sound mind would have regarded this as a problem, and foreseen the consequences of such an action. With regards to a murder conviction, there are a lot of elements missing to facilitate a conviction for murder, for example, there is no intention, and she had no intention to kill or cause grievously bodily harm.
But she was however negligent in taking responsibility for Tom. The question that needs to be asked is did Harriet cause the occurrence that caused tom's Death? I would say yes, she encouraged him, she refused to pull him back, and the situation was down to her own decisions. Since the decision in Franklin (1883)18 it has been settled law that unlawful act manslaughter must be based on a criminal act, in that case Field J stated that:- '… The mere fact of a civil wrong committed by one person against another ought not to be used as an incident which is a necessary step in a criminal case' .
Does this sum up Harriet? On the basis of Lowe (1973)20 and Khan (1998)21 it would appear that unlawful act manslaughter cannot be based on an omission. The appropriate basis for liability will be killing by gross negligence22, although, crimes of negligence requires proof of both actus reus and mens rea. The Draft Criminal Codes Bill states that a person causes a result, which is an element of the offence, when he omits to do an act which could have prevented it even occurring.
Harriet is liable for her actions, and I feel if she is to receive any type of conviction or trial, it would be for manslaughter by causation. Gross negligence is close because of the actual death of Tom, and a conviction is always based on how the judge directs the jury. Was what Harriet doing a civil wrong or a criminal wrong? It all points to a criminal wrong, when you weigh all the options up and what can be classed as morally wrong can also be classed as criminally wrong.