ISSUE 54 EWJ web - Journal - Page 76
was applicable at that time) was held to be too broad
in its definition. Second the Caldwell/ Lawrence direction was applicable in situations where the defendant
had created the risk; Adomako had not created the
risk, his actions were that of omission. Third “the obvious risk” proposed in the Model Direction alluded to
the risk being obvious to the ‘ordinary prudent individual’. In this circumstance Adomako was perceived
as an expert in his field and he would have appreciated risk that the ordinary person would have not.
Fourth was with regard to how Dr Adomako had foreseen the risk and tried to eliminate it in an incompetent manner. A person is not covered by the Model
Direction unless he realised he had not entirely eliminated the risk before acting.
(I would like to acknowledge both Dr Robson and Dr
Swift from the Academic Department of Law,
Northumbria University in their guidance with these
articles. This work was submitted to Northumbria
University as part of a thesis submitted for the award
of LLM)
From this the “Adomako Test” was developed in the
Court of Appeal, the outline from Taylor LCJ was as
follows:
5. Lewthwaite, J. and Hodgson, J., 2001. Law Of Torts. 3rd
ed. London: Blackstone., pp.66-77
6. R v Bateman (1925) 19 Cr App R 8
7. R v Williamson (1807) 3 Car & P 635; 172 ER 579
8. Andrews v DPP
9. R v Noakes [1866] EngR 2; (1886) 4 F & F 920
10. R v Crick [1859] EngR 97; 1 F&F 519
11. Akerele v R [1943] AC 255, PC
References
1. R v Adomako [1994] 3 WLR 288 – see p18 for a fuller
description of the ingredients of the offence
2. R v Bateman (1925) 19 Cr App R 8
3. Quick O, ‘Medicine, Mistakes and Manslaughter: A
Criminal Combination?’ Cambridge Law Journal, 69(1),
March 2010, pp186-203
4. The opinion of McNair J in Bolam v Friern Hospital
Management Committee, [1957] 1 W.L.R 582
1. There is a duty of care between the defendant and
deceased
2. There is a breach of that duty
3. The breach causes or significantly contributes to the
death of the victim
12. Percy Winfield “The History of Negligence in the Law
of Torts”, Law Quarterly Review 42 (1926): 184-201, at 185“Not until the nineteenth century” can the law of negligence
be said to have taken coherent shape.
4. The breach should be characterised as “gross
negligence” and thus a crime.
13. R v Bateman [1925] 19 Cr App R 8
Having been dismissed in the Court of Appeal,
Adomako was subsequently addressed in the House of
Lords. The ingredients of the offence were authoritatively set out by Lord Mackay of Clashfern LC in the
House of Lords who opined.33:
14. Law Commission Consultation Paper No 135, Involuntary manslaughter (1994). Section 20
15. R v Bateman [1925] 19 Cr App R 8
16. Andrews v DPP [1937] AC 576
17. Andrews v DPP [1937] AC 576
"In my opinion, the law as stated in these two
authorities Bateman (1925) 19 Cr. App. R. 8 and Andrews v DPP [1937] AC 576 is satisfactory as providing a
proper basis for describing the crime of involuntary
manslaughter. Since the decision in Andrews was a decision
of your Lordships' house, it remains the most authoritative
statement of the present law, which I have been able to find
and it has not been departed from. On this basis, in my opinion the ordinary principles 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." 34
Mr Rakesh Bhardwaj
Consultant Colorectal and General Surgeon,
Clinical Lead Colorectal Surgery
MBChB MD FRCS FRCS(Ed) FRCS(Gen Surg) LLM
Mr Rakesh Bhardwaj is an experienced Consultant Colorectal and General
Laparoscopic Surgeon with a current NHS practice. He is Clinical Lead for
Colorectal Surgery.
Mr Bhardwaj has expertise in General and Colorectal Disorders. His main
interests are the treatment of Colon and Rectal Cancer and Inflammatory
Bowel Disease (Crohn’s and Ulcerative Colitis). He also has a practice in
Proctology dealing with anorectal conditions, including haemorrhoids,
fistulae and fissures. He also deals with emergency abdominal surgical
conditions.
In addition his General Surgical interests include treatment of Inguinal and
abdominal wall Hernias. He will also treat abdominal adhesions. He also
deals with diseases of the spleen.
We were left with a common law test that ostensibly
reaffirmed the framework set out in Bateman, overruled recklessness and set the standard for convictions
in manslaughter where a duty of care applied. It was
however open to challenge and with further cases the
test was further complicated and deemed far from
being comprehensive.
He has developed an extensive legal Practice and has a masters in
Medical Law. His LLM was undertaken in Medical Negligence. He has also
a keen interest in consent and standards of medical care. He undertakes
screening reports for solicitors.
Mr Bhardwaj currently undertakes medicolegal work at Harley Street,
London. However, he is happy to report when requested only to review
medical records. He conducts video consultations.
Mr Bhardwaj has attained the Cardiff University Bond Solon Civil Expert
Certificate.
In this article we have summarised how the common
law has evolved into its current formulation with the
test set out in Adomako. The next article examines the
flaws in the test and addresses some of the old
problems that have caused concern in deciding what
is the correct formulation for negligence through
breach of duty.
EXPERT WITNESS JOURNAL
His LLM was in the field of Gross Negligence.
Contact: Lindsay Mannion - Tel: 07388 187231
Email: lindsaymannion@ymail.com
Practice address: 10 Harley Street, London, W1G 9PF
Correspondence address: Ebbsfleet Medical Consulting,
c/o Sian Formworks, Stonebridge Road, Northfleet, Kent, DA11 9BA
74
APRIL 2024