R v Rose [2017]

1. Facts:

• Defendant: Optometrist

• Breach: Negligently failed to perform a required eye examination.

• Consequences: Five years later, the patient died from a condition that would have been detected had the examination been conducted.

2. Outcome:

• Verdict: Acquitted of gross negligence manslaughter.

• Reasoning: The court found that the risk of death was not "obvious and serious" at the time of the breach. The patient showed no symptoms when the breach occurred.

3. Impact and Analysis:

• Rose Test:

◦ Restrictive Application: The decision restricts the application of Adomako, requiring a more apparent and serious risk of death for gross negligence manslaughter.

◦ Implications for Professionals: The ruling is significant for professionals such as optometrists, doctors, electricians, and builders, as it sets a higher bar for establishing criminal liability.

• Encouragement and Criticism:

◦ Professional Conduct: The restrictive approach may discourage professionals from performing tests, fearing criminal liability. However, this argument might be overstated.

◦ Liability and Misconduct: Even if criminal liability is not established, professionals may still face civil liability and professional misconduct proceedings for failing to meet their duties.

• Justification:

◦ The court's restrictive stance is seen as appropriate given the seriousness of gross negligence manslaughter, ensuring that only severe breaches of duty result in criminal charges.