R v Adomako

R v Adomako [1994] UKHL 6, was a landmark United Kingdom criminal law case where the required elements to satisfy the legal test for gross negligence manslaughter at common law were endorsed and refined.[1] It was held that in cases of manslaughter by criminal negligence involving a breach of duty the gross negligence test relied on by the Court of Appeal was sufficient and that it was not necessary to direct a jury to consider whether the recklessness definition should be applied. The test, as set out in R v Bateman 19 Cr. App. R.8 and Andrews v DPP [1937] AC 576, confirmed that there needed to be in existence a breach of duty of care where the serious and obvious risk of death was reasonably foreseeable and that the breach or omission in question caused actual death and that the conduct of the defendant, when all the circumstances were considered, was so bad as to amount to a criminal act or omission.[2][3] The requirement to show that the defendant's breach of duty was "gross" helped develop the definition of gross negligence.[4]

R v Adomako
CourtHouse of Lords
Full case nameRegina (Respondent) v. Adomako (Appellant)
Decided30 June 1994
Citation(s)
  • 98 Cr App R 282
  • [1994] 3 All ER 79
  • [1994] 3 WLR 288
  • (1994) 98 Cr App R 282
  • [1994] UKHL 6
  • [1995] AC 171
  • [1995] 1 AC 171
Transcript(s)transcript at BAILII
Cases cited
  • R v. Seymour (Edward) [1983] 2 A.C. 493
  • R v. Bateman 19 Cr. App. R. 8
  • Andrews v. Director of Public Prosecutions [1937] A.C. 576
  • R v. Lawrence (Stephen) [1982] A.C. 510
  • R v. Williamson (1807) 3 C. & P. 635
  • Kong Cheuk Kwan v The Queen (1985) 82 Cr. App. R. 18
  • R v. Stone [1977] Q.B. 354
  • R v. West London Coroner, Ex parte Gray [1988] Q.B. 467
Court membership
Judges sitting
Keywords

Facts

On 4 January 1987, Alan Loveland, a thirty-three-year-old man, underwent an eye operation for detached retina.[5][6] At 9:45 am, anaesthesia was induced by the intravenous administration of paralytic drugs and an endotracheal tube was inserted to enable the patient to breathe with the aid of a mechanical ventilator.[7]

At 45 minutes into the operation there was a change of anaesthetist from the registrar, Dr. Said and his assistant, to Dr John Adomako, a locum peripatetic.[5] Around 35 minutes later, the supply of oxygen to the patient was interrupted by the endotracheal tube becoming disconnected. The disconnected ventilator went unnoticed and unremedied by the appellant, Dr Adomako. It was not until an alarm sounded on a blood pressure monitoring machine that the anaesthetist was alerted to a problem of some kind at which point Dr Adomako checked various pieces of equipment but failed to notice the disconnected oxygen tube which by now had not been supplying oxygen for at least four and a half minutes.[7] A period of hypoxia led to cardiac arrest at 11:14 am, some 11 minutes after the tube became disconnected.[8] It was the eye surgeon who noticed that the ventilator was disconnected and this was after resuscitation had commenced.[5] Although Alan Loveland was successfully resuscitated, the prolonged period of oxygen deprivation caused cerebral hypoxia leading to severe brain damage. Alan Loveland never regained consciousness and died 6 months later.[5]

On 26 January 1990 a jury convicted John Adomako of gross negligence manslaughter by a majority of 11 to 1.[9][10] Mr Adomako appealed his conviction challenging the basis that a breach of duty should not have amounted to involuntary manslaughter, however, his conviction was upheld by the House of Lords.[11][5]

Judgment

Mr Adomako's appeal was dismissed.[11] The House of Lords held that the ordinary common law principles of negligence had to be applied and that it needed to be established whether the appellant's negligent conduct was so bad in all the circumstances as to amount to a criminal act or omission.[7] Adomako was under a duty to act as a reasonable anaesthetist.[12]

The House of Lords in R v Adomako clarified the requisite elements[lower-alpha 1] for gross negligence manslaughter at common law with a four-part test which became known as the Adomako test:[15][13]

  • The existence of a duty of care which was owed to the deceased
  • That this duty was breached by the accused
  • That the breach must have either caused or significantly contributed to the death
  • That the breach falls under the ordinary principles of gross negligence and therefore amounts to a crime

Lord Mackay of Clashfern expanded on how the test for involuntary manslaughter was formulated:

On this basis in my opinion 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 as a crime. This will depend on the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred. The jury will have to consider whether the extent to which the defendant's conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the patient, was such that it should be judged criminal.

— Lord Mackay of Clashfern L. C., R v. Adomako [1995] 1 A.C. 171., BAILII transcript

Circularity of the Adomako test

The application of the test for gross negligence manslaughter in Adomako has been identified as involving an element of circularity.[16] Lord Mackay conceded that the formulation of the test involved a circularity element but that this was not fatal to this test being the right one in order to identify how far the defendant's "conduct must depart from accepted standards to be characterised as criminal".[7][17] The circularity problem is that the jury must be directed to convict the defendant if they, the jury, believe the conduct of the defendant was "criminal". This, however, leaves the burden of a question of law to be decided by the jury where they would not usually be expected to supply reasons for their verdicts which, in turn, leads to the problem of not being able to readily identify which criteria the jury applied for their determination in a certain case.[18]

Grossness element

The determination of the element of "grossness" in negligence can be variable and inexact.[19] In a criminal court, it must be established that there is mens rea, where the extent of the defendant's liability depends on the amount of damage done and the degree of negligence.[20][21] It is for the jury to examine the defendant's conduct in order to determine whether the element of "grossness" is sufficiently serious that it amounts to a criminal offence and would therefore warrant criminal liability for manslaughter.[22] In the case of Adomako, the breach of duty was so serious that the appellant's conduct amounted to "a gross dereliction of care".[23]

See also

Notes
  1. The Court of Appeal in R v Prentice made reference to ingredients at [1994] Q.B. 302[13] and in R v Rudling [2016] EWCA Crim 741 at para. 18, as critical ingredients[14]

References
  1. Quick, Oliver (2010). "Medicine, Mistakes and Manslaughter: A Criminal Combination?". The Cambridge Law Journal. 69 (1): 186–203. doi:10.1017/S0008197310000231. ISSN 0008-1973. JSTOR 40731214. S2CID 145789041.
  2. "Gross Negligence Manslaughter". www.cps.gov.uk. The Crown Prosecution Service. 14 March 2019. Retrieved 6 January 2023.
  3. "Gross negligence manslaughter: prison awaits | Croner-i". app.croneri.co.uk. 1 July 2019. Retrieved 6 January 2023.
  4. Herring, J. (2018). Criminal Law: Text, Cases, and Materials. Oxford University Press. p. 273. ISBN 9780198811817. It must be shown that the defendant's breach of duty was gross. Lord Mackay in Adomako explained that the jury should ask themselves whether the defendant's actions or omissions were so bad as to deserve a criminal conviction.
  5. Alghrani, A. Griffiths, D. Bennett, R. Sanders, A. Ost, S. Bioethics, Medicine and the Criminal Law, p. 57, at Google Books
  6. Brahams, Diana (23 July 1994). "MEDICINE AND THE LAW: Medical manslaughter". The Lancet. 344 (8917): 256. doi:10.1016/S0140-6736(94)93018-X. ISSN 0140-6736. PMID 7913168. S2CID 54397721. During an operation for detached retina the patient showed clear signs of hypoxia...
  7. R v Adomako [1994] UKHL 6, [1995] 1 AC 171, [1994] UKHL 6, [1995] AC 171, [1994] 3 All ER 79, (1994) 98 Cr App R 282, 98 Cr App R 282, [1994] 3 WLR 288 (30 June 1994), UKHL (England and Wales)
  8. Marshall, S. E. (2011). The Structures of The Criminal Law. OUP Oxford. p. 25. ISBN 978-0-19-964431-5.
  9. Brahams, D. (November 1990). "Two locum anaesthetists convicted of manslaughter". Anaesthesia. 45 (11): 981–982. doi:10.1111/j.1365-2044.1990.tb14638.x. ISSN 0003-2409. PMID 2252199. S2CID 34037299. On 26 January 1990 Dr John Adomako was convicted of manslaughter at the Old Bailey after the death of a patient at the Mayday Hospital from cerebral hypoxia in July 1987.
  10. Dyer, Clare (9 July 1994). "Anaesthetist loses final appeal". BMJ. 309 (6947): 78. doi:10.1136/bmj.309.6947.78. ISSN 0959-8138. S2CID 71495046. The jury found him guilty of manslaughter by a majority of 11 to 1.
  11. Teacher, Law (November 2013). "R v Adomako - 1995". Fujairah, UAE: LawTeacher.net. Retrieved 6 January 2023.
  12. Herring, J. (2018). Criminal Law: Text, Cases, and Materials. Oxford University Press. p. 270. ISBN 9780198811817.
  13. "The Legal Framework" (PDF). gosportpanel.independent.gov.uk. December 2014. DPR000036-0001. Retrieved 6 January 2023. The ingredients of the offence of gross negligence manslaughter are set out in R v. Adomako [1995] 1 A.C. 171. The Crown must establish...
  14. Rudling, R. v, 741 Crim, 18 (EWCA Crim 741 2016) ("The critical ingredients of gross negligence manslaughter can be taken from R v Prentice, Adomako and Holloway [1994] QB 302 in this court and Adomako [1995] 1 AC 171, [1994] 99 Crim App R 362 in the House of Lords as well as R v Misra [2005] 1 Cr App R 21.").
  15. Alghrani, A.; Griffiths, D.; Bennett, R.; Sanders, A.; Ost, S. (2013). Bioethics, Medicine and the Criminal Law. Cambridge University Press. p. 149. ISBN 9781107021532. LCCN 2012027129. They go on to offer an expansion of the four-part Adomako test...
  16. Baird, N. (2009). Q&A Criminal Law 2009-2010. Taylor & Francis. p. 42-44. ISBN 9781135242855. [A] problem with the [Adomako] test is that it is circular: the jury must be directed to convict the defendant of a crime if the think his conduct was 'criminal'. In effect, this leaves a question of law to the jury, and, because juries do not give reasons for their decisions, it is impossible to tell what criteria will be applied in an individual case.
  17. Lodge, Anne (2017). "Gross Negligence Manslaughter on the Cusp: The Unprincipled Privileging of Harm over Culpability". The Journal of Criminal Law. 81 (2): 125–142. doi:10.1177/0022018317694719. ISSN 0022-0183. S2CID 152012083. Indeed, Lord Mackay acknowledged the circularity of the test in Adomako, above n. 22 at 187, but he did not perceive this circularity as 'fatal'.
  18. "Legislating the Criminal Code Involuntary Manslaughter" (PDF). Law Commission. 4 March 1996. 3.9. Retrieved 14 January 2023. The first problem with this test is that it is circular: the jury must be directed to convict the defendant of a crime if they think his conduct was "criminal". In effect, this leaves a question of law to the jury, and, because juries do not give reasons for their decisions, it is impossible to tell what criteria will be applied in an individual case. This must lead to uncertainty in the law. The CPS has told us that prosecutors find it difficult to judge when to bring a prosecution, defendants have difficulty in deciding how to plead, and there is a danger that juries may bring in inconsistent verdicts on broadly similar evidence.
  19. Lodge, Anne (April 2017). "Gross Negligence Manslaughter on the Cusp: The Unprincipled Privileging of Harm over Culpability". The Journal of Criminal Law (published 9 April 2018). 81 (2): 125–142. doi:10.1177/0022018317694719. ISSN 0022-0183. S2CID 152012083. Despite playing a significant role in defining the boundaries of manslaughter, the 'gross negligence' concept is notoriously indeterminate.
  20. Rex. v. Bateman, 19, 10-11 (Cr App. R8 1927) ("...and the opinion of Lord Hewart C.J., where he said, at pp. 10-11: "In expounding the law to juries on the trial of indictments for manslaughter by negligence, judges have often referred to the distinction between civil and criminal liability for death by negligence. The law of criminal liability for negligence is conveniently explained in that way...").
  21. Cases on Criminal Law. Bobbs-Merrill. 1923. p. 296 – via CUP Archive. ...In the civil action, if it is proved that A fell short of the standard of reasonable care required by law, it matters not how far he fell short of that standard. The extent of his liability depends not on the degree of negligence but on the amount of damage done. In a criminal court, on the contrary, the amount and degree of negligence are the determining question. There must be mens rea.
  22. Child, John; Ormerod, David (2017). Smith, Hogan, and Ormerod's Essentials of Criminal Law. Oxford University Press. p. 196. ISBN 978-0-19-878868-3.
  23. Dobinson, Ian (1 July 2009). "Medical Manslaughter". University of Queensland Law Journal. 28 (1): 107. Two expert witnesses for the prosecution described the defendant's standard of care as 'abysmal' and a 'gross dereliction of care'.
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