Tuesday, 28 June 2011


There is no general duty to act.

Arguments for

-          It would encourage a greater sense of responsibility.
-          It is immoral to allow a child for example to drown and die and this degree of morality should be reflected in the law.
-          A person who stands by and does nothing is as guilty as a person who administers a lethal injection.

Arguments against

-          Imposing a general duty to act would be far too difficult to legislate. For example supposing a child was drowning in front of a group of people. Which person in the group would be liable?
-          Could a well meaning person do more harm than good? How far would they be expected to go?
-          Should the criminal law interfere with issues of morality?
-          It is an imposition on individual liberty to impose a duty to act.
Clarkson and Keating ‘the imperilled stranger has no right to be rescued and therefore the defendant is under no duty to rescue.’

However there are circumstances when the law will impose a duty to act and these are as follows:

1)    Where the person is obliged to act due to some contractual duty.

Adomako (1994)

An anaesthetist allowed the breathing tube on an operation on a detached retina to become dislodged. The doctor was convicted of gross negligence manslaughter.

Pittwood (1902)

A man was employed a railway company to operate a level crossing gate. He omitted to close the gate after opening it previously to allow the through fare of traffic. Later a driver of a hay cart drove through the open gate and was struck down by the train and the driver of the car was killed. He was convicted of manslaughter.

2)    Where there is a special relationship between the parties. This special relationship may be imposed by common law or statute, such as parents and children, husband and wife.

Downes (1875)

The defendant was a member of a religious sect called the peculiar people who believed in prayer rather than medicine when their children became ill. His child died through his failure to seek medical treatment and the defendant was convicted of manslaughter.

Lowe (1893)

The defendant failed to call a doctor when his nine week old baby became ill as a result of gross emaciation and dehydration. He was however acquitted on appeal due to lack of mens rea. The defendant had severe learning difficulties.

-  It is possible to be charged with murder if the neglect is deliberate:

Gibbins & Proctor 1918

G was  living with P (lover) and his several children. The victim, Nelly was 7 years old, abused and kept apart from other children, she was deliberately starved to death. G and P were convicted of murder.

Dytham (1979)

Dytham was on duty near a hotdog van when a bouncer ejected the victim and three men kicked the victim to death. Dytham watched the incident and then drove off and did nothing to intervene. He was charged with ‘misconduct whilst acting as an officer for justice.’

3)    Where a person has assumed a duty of care for an elderly or infirmed person.

Instan 1893.

D lived with her aunt, who developed gangrene and was unable to care for herself. D was the only person knew of aunt’s condition and she failed to get her aunt food or medical assistance. After 12 days of suffering her aunt died. The defendant was convicted of manslaughter and her appeal failed. Colridge felt “the law would be hopelessly deficient if judges were unable to base liability on common duty of care owed by one relative to another”

Stone and Dobinson 1977.

Stone’s sister went to live with the couple who were intellectually sub normal as well as deaf and blind. She was anorexic and died through starvation. She was found lying in a pool of her own excrement. It was held that S and D owed the victim a duty of care and both were convicted of her manslaughter.

- Failure to minimise a risk.

Where a person inadvertently starts a chain of events which is not interrupted will result in harm or damage, that person when they become aware is under a duty to take all reasonable steps to minimise or prevent the harm.
 If he fails to he may be criminally liable

Miller 1983.
Miller was a vagrant, squatting in house, he lit a cigarette, fell asleep, awoke, discovered mattress on fire. Miller did nothing but just moved to another room. The fire spread, and the house was damaged. He was convicted of arson, upheld by the CA and HL

Khan and Khan (1998)
2 drug dealers supplied a 15-year-old girl with heroin, she overdosed and died. Men failed to get medical help and they left her to die alone. The court said that before they could convict the jury had to be sure that the men stood in such a relationship to the V that they were under a duty to act. The trial judge had not directed the jury on this crucial matter.

 The CA did not decide that no duty was owed on the facts, rather that it must be left to the jury to decide whether a duty of care was owed or not. It was up to the trial judge to decide on the facts if a duty was capable of arising and for the jury to decide whether it did in fact arise.

An unresolved issue is whether a duty once undertaken may be relinquished.

In Smith 1979
D’s wife bore a stillborn child at home. She hated doctors and would not let D to call one. When she finally gave permission it was too late and she died. The trial judge directed the jury to balance the wife’s wish to avoid calling a doctor against her capacity to make a rational decision. The Jury were unable to agree and the defendant was discharged.

So, it would seem that if the victim is rational they may release a relative or carer from their duty of care. Airedale NHS Trust v Bland 1993 HL gave further guidance on this difficult area. This is a civil case and strictly speaking is not binding on criminal courts.

The Trust applied to HL for a declaration that it was lawful for doctors to withdraw life-supporting medical treatment, including artificial feeding from Tony Bland. He was a patient, in a persistent vegetative state. (irreversible brain damage) with no prospect of improving. Permission was needed despite family and doctors consent to ensure that withdrawing treatment would not make them liable for murder. The House of Lords held that withdrawal of treatment would be lawful and Lord Goff stated several principles, which should apply.

1)    There is no absolute rule that a patients life must be prolonged no matter what
2)    Respect must be given for the patients wishes. If a person is of sound mind treatment can be withdrawn.
3)    Where treatment is futile there is no obligation on the doctor to provide it.
4)    Treatment can be provided in the absence of consent if the patient is incapable of provided.

Draft Offences Against the Person Bill 1998 proposes to create an offence of assault by omission. Bill states “a person is guilty of an offence if he omits to do an act which he has a duty to do at common law, the omission results in serious injury to another and he intends the omission to have that result”

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