Manslaughter - duty of care and its breach

There must have been a ‘duty of care’ relationship between the defendant and the person who died. To determine whether or not such a relationship exists one has to consider the civil law principles of negligence.

The recent court of appeal case of R v Willoughby (1) has held that:

‘Whether a duty of care exists is a matter for the jury once the judge has decided that there is evidence capable of establishing a duty.’

It should be noted that although a company may owe a duty of care towards the person who died, it does not necessarily mean that a company director owes one. In the Crown Court Ruling in case of R v Great Western Railways, the judge stated

‘the fact that an individual is a director of a company does not, of itself, give rise to a duty of care on that person's part to a third party who is injured by the company's activity’

Although this ruling does not set a precent, the principle does not appear to be in doubt. For example, in the case of C Evans and Sons Ltd v Spritebrand (2), the court held ‘The mere fact that a person is a director or a limited liability company does not itself render him liable for torts committed by the company during the period of his directorship

This is because, in law, the conduct of a company director is not seen as the director’s own individual conduct but conduct that the director undertakes on behalf of the company. The director’s ‘negligent’ conduct may well make the company liable for compensation but it will not necessarily make the director personally liable as an individual.

Whether or not a person has such a duty of care will depend on the facts of each case and whether it is appropriate that the director, as an individual, had a personal duty of care. Issues that are likely to be considered by the court are the specific responsibilities that the director had within the company, whether it is alleged that positive decisions or actions on his or her part was a cause of the death (rather than simply omissions), and whether or not the director had been made aware of the circumstances that created the risk of death.

In most cases prosecuted, the issue of whether or not the individual had a duty of care has not been contentious.

Breach of duty
Once it is shown that a duty of care exists it is then necessary to show that it has been ‘breached’ – an issue that continues to require a consideration of tort law principles. The duty would have been breached if the defendant failed to take reasonable care as judged against the conduct of a reasonable person in that person’s position.

However this part of the test for manslaughter is closely connected to the question of grossness of the breach – and the question of whether or not there has been a breach of duty appears rarely to be considered separately from the key question of whether or not the breach of duty has been ‘gross’ (see below): there will not have been a gross breach of duty if there has not been a breach of duty.

Footnotes (To access judgment, click on hyperlink)

1. [2004] EWCA Crim 3365, para 24

2. [1985] 2 All ER 415