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Manslaughter - gross negligence manslaughter - other factors to consider

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What of the egg-shell skull rule?

Using Smith v Leech Brain & Co Ltd [1962] as an example, if D in a grossly careless manner causes a relatively minor burn to V's lip and V subsequently dies of cancer because of the pre-malignant condition of the lip, can D really be guilty of manslaughter by gross negligence?


It is submitted that the duty of care arises only if serious injury is foreseeable and that references to risks to the health and welfare of infirm people are explicable on the basis that such risks are inevitably serious because of the precariousness of their health to start with.


This would be consistent with the reference of Lord Hewart CJ in Bateman (1925) to 'disregard for the life and safety of others' where it is strongly arguable that his lordship was referring to safety from serious injury, not absolute safety from any degree of minor injury.


Contributory negligence will only be relevant in rare cases

If the accusedís negligent act or omission was a substantial cause of death, the fact that the deceased was himself negligent and so contributed to the accident or other circumstances by which the death was occasioned does not afford a defence to an indictment for manslaughter R v Longbottom (1849).


This principle has been followed in many cases, for example in R v Walker (1824) where deceased was intoxicated.  


But where D caused death by dangerous driving (now reckless driving) it was held that D was only guilty if the dangerous driving was more than a minimal factor in causing death and even if in a civil action he might be held to be only partly to blame (R v Waters (1834) and R v Hennigan [1971] CA).


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