DISCUSS BY REFERENCE TO WHETHER WE HAVE A DUTY TO ACT WHEN WE ARE WALKING PAST AN INJURED MAN AND WE ARE IN A POSITION TO HELP.

Antonio Garibaldi Rodrigues

"We all have a ‘social responsibility’, as fellow citizens, to assist a vulnerable person when we are aware that they are in peril and we are in a reasonable position to prevent the harm. An omission to do so should, under certain conditions, establish criminal liability."

Generally, a person can only commit a crime if they commit a voluntary act. As Lord Denning stated: ‘the requirement that it should be a voluntary act is essential in every criminal case’.[1] Nevertheless, a failure to act, an omission, can give rise to criminal liability. In cases where the offence is capable of commission by omission (murder and manslaughter offences;[2] non-fatal offences against the person;[3] and property offences.[4]) the failure to act can constitute the actus reus of the crime. After establishing that an offence is one capable of omission, the next requirement is that the defendant must be under a duty to act imposed by the law. This duty will narrow the law’s focus from all those who failed to act, to isolate those whose omissions can constitute the actus reus of an offence. This prevents the emergence of a ‘Good Samaritan’ law and a general duty to act which exists in France.

 

A duty to act will only be imposed in very narrow categories: as Lord Mustill stated in Airedale National Health Trust v Bland, a person is only to be held liable for the consequences of an omission if he stands “in such a relation to the victim that he is under a duty to act.”[5] Various categories have been developed through case law to determine whether there is such a duty to act (close family relationship, the voluntary assumption of responsibility, the creation of a dangerous situation, duty imposed by statute and duty imposed by contract). It must also be proved in result crimes that the defendant’s failure to act caused the prohibited harm. The normal rules of causation apply as clarified by Lord Coleridge in Morby: “…it was necessary to show that what the parent neglected had the effect of shortening the child’s life”.[6] 

 

A duty to act may be imposed on the defendant by contract or statute. Regarding a duty to act imposed by a contract the relevant authority is Pitwood[7], where the defendant, a railway crossing gate-keeper, forgot to close the gate and as a result someone died. The court stated that “…as the man was paid to keep the gate shut and protect the public... a man might incur criminal liability from a duty arising out of contract”. It follows that in the case of a child drowning in a shallow pool the lifeguard is under a duty to act imposed by a contractual duty. Others that are in a position to rescue, but choose not to, would not be liable for a failure to act because they are not under a duty to act. A duty to act may also be imposed by statute, for example under the Domestic Violence Crime and Victims Act 2004 the defendant might be held liable for failing to protect a child or vulnerable adult from harm.

 

A duty to act imposed by a close family relationship only arises in relation to spouses and between parents and their minor child. It was established in R v Downes[8]  that a parent is under a duty to provide medical aid for his child. In Gibbs and Proctor,  the defendant was found guilty of murder when he failed to feed his child.[9] However, it seems that a duty to act will only be imposed on the parents to safeguard the life of a child who has reached the age of maturity if there is an assumption of responsibility. This was decided in Shepherd[10], in which it was stated that a mother did not owe a duty to act to her 18-year-old daughter, since she was fully emancipated. In Chattaway[11], the victim aged 25 returned to live with her parents, became ill and the parents failed to summon help and were held liable for breaching their duty to act, which arose because they assumed responsibility for their daughter. Regarding a duty towards a spouse it seems that the major factor when finding a duty to act is the idea of prolonged interdependence and communal living.[12] This is illustrated by several cases, such as Hood[13] where it was held that the defendant owed a duty to act towards his wife. Nevertheless, the law lacks clarity from what is required from the person who owes the duty to act when his spouse refuses assistance. In Bonnyman[14] and Hood a duty to act was imposed on both defendants after their spouses refused help. However, the same reasoning did not apply in Smith.[15] In the latter case a husband who did not call a doctor for several days for his ill wife, who refused to have medical assistance, was not held liable. Griffiths J ruled that it was "reasonable to abide by her wishes" and the defendant was acquitted of manslaughter. It remains unclear whether it is reasonable to abide by the wishes of a spouse who refuses help or whether a duty to act will be imposed on the defendant nonetheless.

 

 

The voluntarily assumption of responsibility will also impose a duty to act. No duty will arise if the defendant refused to accept to be responsible for the deceased’s welfare in the first place.[16]  It follows that if a person sees a stranger drowning and offers assistance, he could be liable if he later abandons the rescue.[17] In Nicholls[18] it was held that a grandmother had no obligation to look after a grandchild unless there was a voluntarily assumption of responsibility. In Instan[19] a duty to act arose because the niece of the victim implicitly promised to care for her aunt. In Barrass[20]  the defendant helped his disabled sister which amounted to an assumption of responsibility. He breached his duty to act when he failed to call a doctor for over two weeks while she was lying on the floor after falling, suffering from hypothermia and covered in sores. In Stone and Dobinson[21] there was a duty to act based on the assumption of responsibility imposed on Stone, which arose after allowing the victim to stay in his house. A similar duty to act was imposed on Stone’s cohabitant Dobinson because she made efforts to wash and feed the victim. It seems draconian to impose a duty to act on the defendants in the present case since their ability to act was diminished by their lack of capacity and low functioning….

 

Written by Antonio Garibaldi Rodrigues

 

[1] Bratty v Attorney General of Northern Ireland [1963] A.C. 386

[2] Gibbs and Proctor (1918) 13 CR App R 134

[3] Santana Bermudez [2004] Crim LR 471

[4] Miller [1983] 2 AC 161

[5]

[6] Morby (1882) 15 Cox CC 35

[7] R v Pitwood (1902) TLR 37

[8] R V Downes (1875) 13 Cox C.C. 111

[9] Gibbs and Proctor (n2)

[10] Shepherd (1862) 9 Cox C.C. 123

[11] Chattaway (1924) 17 Cr. App. R. 7

[12] Andrew Ashworth ‘Manslaughter by omission and the rule of law’ Crim. L.R. [2015] 8, 563, 567

[13] Hood [2003] EWCA Crim 2772

[14] Bonnyman (1942) 28 Cr. App. R. 131

[15] Smith [1979] Crim. L.R. 251

[16] Michael Jefferson, Criminal Law (9th edn, Pearson Education Limited) 73

[17] David Ormerod and Karl Laird, Smith and Hogan’s Criminal Law (14th edn, Oxford University Press 2015) 79

[18] R v Nicholls (1875) 13 Cox 75

[19] R v Instan (1893) 1 QB 450

[20] R v Barrass [2011] EWCA Crim 2629

[21] R v Stone and Dobinson [1977] QB 354

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