The principles from Adomako can be broken down into four tests. Firstly, did D owe a duty of care? The CA in R v Wacker39 confirmed that the 'duty of care' is usually to be given the meaning it has in the tort of negligence. Whether there is a duty of care is a question for the jury40. It would be a simple task for the jury to find Dr Martin had a duty of care to Steve; all doctors owe a duty to their patients. Secondly did D breach a duty of care? The jury must ask whether Dr Martin's actions fell below the standard expected of the reasonable doctor.
A jury should only "convict a doctor of causing a death by negligence if they think he did something which no reasonably skilled doctor should have done41". There is no doubt that Dr Martin breached his duty of care to Steve; as no reasonable doctor would have failed to read the medical notes of a patient. Thirdly did the breach cause the death? For this test it would be difficult to establish that Dr Martin's omission caused Steve's death as it was not the operating and substantial cause; even though 'but for' his omission Steve may have lived. Lastly; should the breach be characterised as grossly negligent and therefore a crime?
Was Dr Martin's omission so bad as to justify a criminal conviction? This is a question purely for the jury to decide and leaves them a wide discretion. This can often lead to inconsistency; but the courts try to leave GNM as vague, broad and undefined as possible to catch people out. As such it has come under criticism for being so vague that it contravenes Article 5 of the European Convention of Human Rights42. Furthermore the CA in Attorney – General's Reference (No. 2 of 1999)43 made it clear that it is not necessary to prove that Dr Martin foresaw a risk of death.
In conclusion then there is strong prima facie to show a causal link between Roger's attack and Steve's death; with Roger most likely being charged with unlawful and dangerous act manslaughter. He would seem to satisfy the four tests for UDA but the decision is down to the jury. As for Dr Martin, depending on whether or not the jury find that he has caused Steve's death, which is unlikely, then he would be charged with gross negligence manslaughter and even though there would appear to be insufficient cause for conviction; again the decision is one for the jury.
However if he did not know, it would be harder to prove the dangerousness. It could be possible that during the attack Steve informed Roger of his weak heart; the reasonable person could then be invested with that knowledge and would accept the act as dangerous35. Steve suffered terror and it could be reasonable foreseeable that he may go into shock or have a heart attack as a result of that terror. Gross Negligence Manslaughter The third area of law this question concerns is the possible charge of Gross Negligence Manslaughter (GNM) of Dr Martin.
GNM is the second form of involuntary manslaughter; where D's conduct, act or omission; which is not otherwise unlawful, causes V's death; D may be liable for manslaughter by gross negligence. Lord Hewart set out the principles in R v Bateman36 saying the prosecution had to prove civil negligence and satisfy the jury that "the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the state and conduct deserving of punishment. " In the 1980's gross negligence gave way to Caldwell recklessness manslaughter.
However in 1995 the HL reverted back to GNM in the leading case R v Adomako38. Lord Mackay stated the basis of the law as follows "… 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 a crime. "