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OMISSION

1. General rule: there can be no liability for a failure to act

2. Exception: there can be liability, provided the following 4 conditions can be established :

a) The offence must be capable of being committed by omission; AND

b) There is a duty to act; AND
c) There was a breach of that duty to act; AND
d) The breach of duty to act caused the consequences

3. The offence must be capable of being committed by omission

a) murder

- yes
- AR: killing
- Death can result by a person’s inaction
- Gibbins & Proctor (1918):
- Ms Proctor: by living with Mr Gibbins and receiving money from him for food, she had assumed
a duty towards the child – she had withheld food with the intent to cause gbh
- Mr Gibbins: at Ms Proctor’s request, he burned the child
- “There is also evidence that when the child died of starvation both appellants took part in hiding
the body and preventing the death being known”

b) gross negligence manslaughter

- yes
- D must be under a duty of care
- A duty of care can cover a duty to not act and a duty to take action
- Stone & Dobinson (1977)

c) constructive manslaughter

- no
- D must commit an unlawful act
- Lowe (1973): “a charge of manslaughter should not be an inevitable consequence even if the omission
is deliberate”
- Smith & Hogan: “if the omission is truly wilful - a deliberate omission to summon medical aid, knowing
it to be necessary, there seems to be no valid ground for the distinction”

d) section 18 OAPA 1861: wounding with intent to do grievous bodily harm

- yes
- AR: wounding / causing gbh
- Smith & Hogan: drawing an analogy from Gibbins & Proctor - “if the child had sustained grievous
bodily harm but had not died, it is difficult to suppose that the court would not have held the
defendants guilty of an offence under s18”

e) assault

- no
- AR: causing another to apprehend the application violence
- Fagan v MPC (1968):
- D accidentally drove his car onto the foot of the policeman
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- D argued that he should not be liable since he had failed to remove the car
- D as found liable on the basis that his act of driving the car is continual

f) criminal damage

- AR: causing damage to property

- Miller (1983)

4. Duty to act

a) statute

- Children & Young Persons Act 1933: A person who wilfully neglects a child is guilty of an offence

b) contract

- Pittwood (1902): Wright J - “there was gross and criminal negligence … A man might incur criminal
liability from a duty arising out of a contract”

c) creation of a dangerous situation

- Miller (1983): Lord Diplock – “I see no rational ground for excluding from … liability conduct which
consists of failing to take measures that lie within one’s power to counteract a danger that one has
oneself created”
- Lewin v CPS (2002): “the young man who was left in the unlocked car was an adult, not a small child
or dog”

d) special relationship

- Hood (2004): D (husband) only called for medical assistance for V (wife) after 3 weeks
- Wilson: it is probably not the fact of being a spouse / parent / carer which grounds the duty. Rather,
it is the fact that such persons have placed themselves in the frame by their status / role / conduct
and in so doing excite expectations, whether in V or in the wider society, which render the victim
vulnerable if those expectations are not fulfilled

e) voluntary assumption of duty

- Nicholls (1874): “If a grown up person choses to undertake the charge of a human creature helpless
either from infancy, simplicity, lunacy or other infirmity, he is bound to execute that charge without
… negligence”
- Stone & Dobinson (1977):
- “The duty which a defendant had undertaken is a duty of caring for the health and welfare of
the infirm person”
- “Whether Fanny was a lodger or not she was a blood relation of the appellant Stone; she was
occupying a room in his house; the appellant Dobinson had undertaken the duty of trying to
wash her, of taking such food to her as she required. There was ample evidence that each
appellant was aware of the poor condition she was in ... It was not disputed that no effort was
made to summon an ambulance or the social services or the police despite the entreaties of Mrs.
Wilson and Mrs. West. A social worker used to visit Cyril. No word was spoken to him. All these
were matters which the jury were entitled to take into account when considering whether the
necessary assumption of a duty to care for Fanny had been proved.”
- Lewin (2002): D’s responsibility to his passenger “persisted for so long as the vehicle was in motion,
but … would normally have come to an end as soon as the vehicle was properly parked in a safe place
at the end of its journey”
- Ruffell (2003): “… he had taken upon himself the duty of trying to revive him after what had
happened”
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5. Breach of duty to act

- Airedale NHS Trust v Bland (1993): Lord Goff - “no absolute obligation upon the doctor who has the
patient in his care to prolong his life, regardless of the circumstances”
- Re B (a minor) (1998):
- An “entirely responsible” decision
- DUTY TO NOT KILL c/f DUTY TO PRESERVE LIFE
- Wilson: Generally speaking, the level of obligation imposed by a duty to act has yet to be fully worked
out. Such statements as there are indicate that a duty holder must take such steps that are
reasonable in the circumstances to prevent the relevant consequences materializing
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2017 (October) Question 1

Explain and discuss the approach of the criminal law to the following cases with reference to the question as
to whether A is under a duty to rescue.

a) A is a swimming pool attendant. He sees V, a swimmer, struggling out of her depth in the pool.
b) A is the mother of V. She sees V struggling out of her depth in the pool.
c) A is the mother of T, aged 10, who has invited V his friend, also aged 10, to go swimming with him at
the local pool. A sees V struggling out of his depth in the pool.
d) A and V are an unmarried couple who live together. A sees V struggling out of his depth in the pool.
e) A, who is supervising her child at a swimming pool, drops an ice cream accidentally at the poolside.
V, a child, slips on the ice cream and falls into the pool. A sees V struggling out of her depth in the
pool.

a) A is a swimming pool attendant. He sees V, a swimmer, struggling out of her depth in the pool.

Issue: Is A required to rescue V?

Law: contractual duty à Pittwood: “there was gross and criminal negligence … A man might incur criminal
liability from a duty arising out of a contract”

Application:
à A is employed to rescue swimmers in need of help.
à He must rescue anyone in need of help as long as he is on duty

Conclusion: YES

HOW TO WRITE IN EXAMS:

A person may incur criminal liability due to a failure to comply with a contractual
duty (Pittwood). As a swimming pool attendant, A’s contract of employment will
dictate that he has a duty to rescue any swimmers in need of help. Assuming A
was on duty, he is duty bound to rescue V

b) A is the mother of V. She sees V struggling out of her depth in the pool.

Issue: Is A required to rescue V?

Law: special relationship

à Gibbins & Proctor: parent and child
à Wilson: It is probably not the fact of being a spouse / parent / caregiver which grounds the duty.
Rather it is the fact that such persons have placed themselves in the frame (causal and moral) by their
status / role / conduct and in so doing excite expectations, whether in the victim or the wider society,
which render the victim vulnerable if those expectations are not fulfilled. Confounded expectations
can cause harm

Application:
à As mother and child, the relationship between A and v is special
à A is duty bound to help V in some way
à A may not be duty bound to rescue V, especially if A is unable to do so
à Any duty to act is also going to depend on V’s age
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Conclusion: MAYBE

HOW TO WRITE IN EXAMS:

A person is duty bound to act if they are in a special relationship with the victim.
As seen in Gibbins & Proctor, the relationship between a mother and child is
special. Therefore A should do something to help V. However, duty to act does
not necessarily extend to a duty to rescue, especially if A is unable to effect rescue.
Whether A is duty bound to rescue will depend on the expectation of society in
general, i.e. whether A was able to do so (Wilson). This is assuming that V is a child
under the age of 18.

c) A is the mother of T, aged 10, who has invited V his friend, also aged 10, to go swimming with him at the
local pool. A sees V struggling out of his depth in the pool.

Issue: Is A required to rescue V?

Law:
(i) special relationship
à Gibbins & Proctor: parent and child
à Wilson: It is probably not the fact of being a spouse / parent / caregiver which grounds the duty.
Rather it is the fact that such persons have placed themselves in the frame (causal and moral) by their
status / role / conduct and in so doing excite expectations, whether in the victim or the wider society,
which render the victim vulnerable if those expectations are not fulfilled. Confounded expectations
can cause harm

(ii) voluntary assumption of duty à Stone & Dobinson: “The duty which a defendant had undertaken
is a duty of caring for the health and welfare of the infirm person”

Application:
à Following the argument in Wilson, the relationship between A and V is special, i.e. A has placed herself
in the position as V’s mother, and an expectation by society for A to act is now present
à However, as with part (b) above, it is questionable whether a duty to act here will include a duty to
rescue
à By agreeing to take V to the pool, A would have assumed the responsibility to provide care to V as if A
were V’s mother

Conclusion: MAYBE

HOW TO WRITE IN EXAMS:

There are 2 categories under which A can be said to be duty bound to act. Firstly,
special relationship. By relying on Wilson, it can be argued that the relationship
between A and V are sufficiently special, as A has placed herself in the position of V’s
mother. Given V’s young age, A is surely duty bound to act. However, that act need
not necessarily extend to rescue, if A is unable to effect rescue.

Secondly, A has voluntarily assumed a duty over V. V is considered an infirmed

person due to her young age and also due to her struggling in the pool. However, it
is once again noted that A’s duty to act may not necessarily extend to a duty to rescue
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d) A and V are an unmarried couple who live together. A sees V struggling out of his depth in the pool.

Issue: Is A required to rescue V?

Law: special relationship

à Hood: husband and wife
à Wilson: It is probably not the fact of being a spouse / parent / caregiver which grounds the duty. Rather
it is the fact that such persons have placed themselves in the frame (causal and moral) by their status / role
/ conduct and in so doing excite expectations, whether in the victim or the wider society, which render the
victim vulnerable if those expectations are not fulfilled. Confounded expectations can cause harm

Application:
à A and V are not married, their relationship may be sufficiently special so as to put them in the position
of husband and wife
à However, it is questionable whether a duty to act here will include a duty to rescue

Conclusion: MAYBE

HOW TO WRITE IN EXAMS:

A is duty bound to act if A and V are in a special relationship. Hood demonstrates

that a husband and wife are in a special relationship. It must first be noted that the
facts of Hood differ, in that A and V are not married. Nonetheless, Hood can be
applied as it appears that the relationship between A and V is akin to husband and
wife. The statement by Wilson supports this, as society will expect A to act. However,
it is once again argued that any duty to act may not extend to a duty to rescue, if A
is unable to effect rescue

e) A, who is supervising her child at a swimming pool, drops an ice cream accidentally at the poolside. V, a
child, slips on the ice cream and falls into the pool. A sees V struggling out of her depth in the pool.

Issue: Is A required to rescue V?

Law: creation of a dangerous situation à Miller: “I see no rational ground for excluding from … liability
conduct which consists of failing to take measures that lie within one’s power to counteract a danger that
one has oneself created”

Application:
à By creating an opportunity for V to slip and fall, A is duty bound to take action
à any duty to act may not extend to a duty to rescue

Conclusion: MAYBE

HOW TO WRITE IN EXAMS:

Eating ice cream anywhere is hardly considered to be a dangerous act, just as

smoking is not dangerous (Miller). A’s act of eating ice cream has resulted in a
dangerous situation, as dropping ice cream at the poolside creates a slipping hazard.
Following Miller, A is now duty bound to take action to counteract any danger that
he has created, i.e. by cleaning up the mess he has made. As argued before, A’s duty
may not extend to rescue, if A is unable to do so