Reasonable foreseeability after R v Rose
Chris Gillespie examines the case of R v Rose from a health and safety perspective.
Honey Rose was an optometrist who negligently failed to perform her statutory duty to conduct an intra-ocular examination on her seven year old patient. As a result she failed to discover the clear indications of a life-threatening risk to the child who subsequently died of hydrocephalus.
The Court of Appeal in R v Rose  EWCA Crim 1168 quashed her conviction on the basis that in the circumstances, where the deceased had displayed no symptoms such as headaches or nausea, the appellant’s failure to comply with her statutory duty, imposed for the purpose of detecting injury, disease or abnormality, could not be said to create a situation where it was reasonably foreseeable that an obvious and serious risk of death arose.
Although Rose is a medical case, there is no legal distinction between a gross negligence manslaughter that arises from a medical rather than an Health & Safety setting and the case does raise some interesting issues for Health & Safety lawyers. There is a restatement of the relevant principles relating to gross negligence manslaughter, drawing together authorities from both medical and health and safety cases. In particular, the Court of Appeal held that where negligence arises from a failure to act, the question for the judge at the close of the prosecution case and the ultimately the jury must be this: can it be said that the negligent failure led to a situation where it was reasonably foreseeable that in consequence of that failure there was an obvious and serious risk of death, rather than of injury or even very serious injury.
The potential problem for practitioners is that, unlike in medical cases such as Rose, in Health & Safety cases a negligent failure for example to segregate pedestrians and traffic or to plan for work at height or to provide guarding for a particular type of machinery will often result in a situation where it is reasonably foreseeable that a breach of the relevant duty will give rise to an obvious and serious risk of death. The danger in those circumstances is that the obvious nature of the risk will be conflated with the question as to whether the negligence was gross, so that the more obvious the risk the easier it may seem to characterize any failure to mitigate it as not merely negligent but as grossly negligent. Evidentially, the obvious and serious nature of the risk may lead to a conclusion that the negligence was gross but it does not automatically follow in every case.
Rose does nothing to change the line of authority that makes it clear that gross means more than very negligent. Having regard to the circumstances of the case, the circumstances of the breach must be truly exceptionally bad and so reprehensible as to justify the conclusion that it amounts to gross negligence and warrants criminal sanction.
It may be that in practical terms medical professionals enjoy an advantage over those charged with gross negligence manslaughter in an Health & Safety case. Frequently, there will be issues as to causation especially if the patient was already very sick; medicine is as much an art as it is a science; there is no equivalent of the Bolam test for those whose activities at work may impact on the health and safety of others. However, this should not lead to any elision between what is reasonably foreseeable and what can be properly categorized as gross negligence.
As Michael Hayton QC points out in his article, if the current Draft Guidelines are adopted we can expect to see sentences for gross negligence manslaughter double. Whether this in itself will lead to more prosecutions remains to be seen. However, it will certainly be far more difficult for prosecutors to accept a deal whereby a company pleads guilty to corporate manslaughter in circumstances where gross negligence manslaughter charges are dropped against individuals. It may be that the greatest challenge for practitioners will be to ensure that their clients are not charged in the first place.