murder and involuntary manslaughter - Law Reform Commission

negligence so as to produce a fluctuating standard as was noted byMegaw J in Nettleship v Weston.” 60It was observed that it is for this reason that some commentators (eg theVictorian Law Commission in its Report on homicide 61 ) would restrict“capacity” to the mental and physical kindswhich are arguably more readilyquantifiable than, say, that of inexperience.5.63 In the context of liability for gross negligence manslaughter due toan omission, the question was raised about what type of test should beintroduced. Two related examples were given and the Commission wasasked where the line should be drawn between the two scenarios. In the firstcase a person watches a child drown in a three-inch-deep pond and in thesecond a person watches a child drowning in a stormy sea.(d)The Commission’s Response5.64 In the Commission’s view liability for gross negligencemanslaughter will not arise unless the defendant owed the deceased a duty ofcare. Duties of care normally occur where there is a pre-existing relationshipbetween the accused and the deceased, eg between parents and theirchildren, spouses, employers and employees etc.5.65 The Commission is still in favour of amending the Dunleavy testto make the capacity of the accused to advert to the risk or to attain theexpected standard a necessary feature of liability. As stated above, there wasenormous support for this proposal at the involuntary manslaughter seminarand in submissions received.5.66 The Commission suggests that “capacity” in this context shouldbe understood as the defendant’s mental and physical ability (or lack thereof)to appreciate the risk or to attain the expected standard. Capacity, shouldtherefore not be understood as inexperience eg in administering cytotoxicdrugs by lumbar puncture as was the case in R v Prentice. 625.67 The Commission accordingly recommends that the Dunleavy 63gross negligence test be amended so that the capacity of the accused toadvert to risk or to attain the expected standard is relevant to liability.60616263[1971] 2 QB 691, 707.See Law Reform Commission of Victoria Homicide (Report No 40 1990-1991) atparagraph 270.[1993] 4 All ER 935.[1948] IR 95.111