Bawa-Garba v R.

In gross-negligence manslaughter, causation is proved where the jury is sure that the defendant’s gross negligence caused the deceased to die significantly sooner. That conclusion is equivalent to being sure that competent treatment would have saved or significantly prolonged life. It is insufficient to prove a lost opportunity which might have prolonged life.

Whether a contribution is significant is ordinarily a matter for the jury’s good sense, provided it is more than trivial or minimal. A concurrent cause defeats liability only if it is so dominant that the defendant’s negligence did not significantly contribute to the death or its timing.

The appellant, a paediatric registrar, was convicted at the Crown Court at Nottingham of manslaughter by gross negligence arising from the treatment of a seriously ill six-year-old child who died from sepsis. She received a two-year sentence of imprisonment, suspended for two years.

She renewed an application for leave to appeal against conviction. The principal challenge was to the trial judge’s directions on causation. It was contended that the jury should have been directed that proper treatment would have saved or significantly prolonged life, rather than that the child died significantly sooner because of gross negligence. The appellant also relied on the possible contribution of enalapril and on the alleged point at which treatment could no longer affect the outcome.

1. The renewed application for leave to appeal was refused. The causation direction was legally correct. A jury’s conclusion that gross negligence caused a patient to die significantly sooner necessarily entails that proper treatment would have prolonged life. The formulations are not opposing tests, but express the same causal inquiry from different perspectives.

2. The prosecution had to prove affirmative causation. It was not enough to show a lost opportunity for treatment that might have saved or prolonged life. The judge repeatedly directed the jury that it had to be sure that the appellant’s gross negligence significantly contributed to the death or to its timing.

3. The judge was entitled to leave the meaning of significantly to the jury’s good sense, after making clear that the contribution had to be more than trivial or minimal. Further elaboration would have been confusing and unnecessary.

4. The direction concerning enalapril correctly addressed concurrent causation. If its effect was, or might have been, so dominant that the defendants’ acts or omissions made no significant contribution to the death or its timing, the prosecution case failed. Conversely, a significant contribution by gross negligence was sufficient even if enalapril also played a significant part.

5. The directions also adequately addressed the possible point of no return. If that point had been reached, later negligence could not have caused the death, and the judge had fairly put that issue to the jury. The analogy concerning a later unlawful shooting was a permissible illustration of a new cause superseding an earlier cause.

6. Although a further ground concerning gross negligence was not pursued, the court confirmed that juries must be left in no doubt that the negligence required for this offence is truly exceptional.

• Court of Appeal (Criminal Division): The renewed application for leave to appeal against conviction was refused: [2016] EWCA Crim 1841.

• Crown Court at Nottingham: The appellant was convicted of manslaughter by gross negligence on 4 November 2015 and received a two-year sentence of imprisonment, suspended for two years.