Slides in this set
b) an omission (a failure to act)
· The general rule is that there can be no liability for failing to act, unless at
the time of the failure to act the defendant was under a legal duty to take
positive action .
· A positive duty to act exists in the following circumstances:
-- duty arising from a statutory duty
-- under a contract
-- duty arising from an official position
-- where the defendant had assumed responsibility for a person
-- where the defendant has started a chain of events…read more
1) DUTY ARISING FROM A STATUTORY DUTY
Liability for failing to act will be imposed where the defendant can be shown to
have been under a statutory duty to take positive action. A leading example of
such a case is provided by the Children and Young Persons Act 1933, which
creates the offence of wilfully neglecting a child. Hence by simply failing to
provide food for the child, or failing to obtain appropriate medical care, a parent
could be held criminally liable for any harm that results. Another example is the
Road Traffic Act 1988 which creates the offences of failing to provide a specimen
when required to do so and failing to give a create name and address when
required to do so.
2) UNDER A CONTRACT
Where a person is under a positive duty to act because of his obligations under a
contract, his failure to perform the contractual duty in question can form the
basis of criminal liability.
R v Pittwood (1902) Pittwood was employed as a gatekeeper at a railway
crossing. He went on his lunch leaving the gate open, and a man got killed when
a cart got hit by a train. Pittwood was convicted of manslaughter, based on his
failure (omission) to close the gate when a train approached, which was part of
his contract of employment.…read more
3) DUTY FROM ARISING FROM AN OFFICIAL POSITION
A person in a public office may be under a public duty to care for others.
R v Dytham (1979) a uniformed police officer saw a man who ended up
being kicked to death. He took no steps to stop the attack and drove away
when it was over. He was convicted of the offence of misconduct in a public
office, as he neglected to act to protect the victim.
· 4) WHERE THE DEFENDANT HAS ASSUMED RESPONSIBILITY FOR A PERSON
There is a common law duty of care where there is a relationship of reliance
between defendant and victim. Thus if someone voluntary assumes
responsibility for another person then they also assume the positive duty to
act for the general welfare of that person and may be liable for omissions
which prove fatal.
R v Stone and Dobinson (1977) - the defendants lived together and Stone's
sister came to live with them. She was anorexic and refused medical help,
but Stone and Dobinson tried to help but didn't call for medical services, and
so they were convicted of manslaughter , as they had taken on a duty of
care and she died.…read more
5) WHERE THE DEFENDANT HAS STARTED A CHAIN OF EVENTS
Where the defendant accidently commits an act that causes harm, and
subsequently becomes aware of the danger he has created, there arises a
duty to act reasonably to avert the danger.
R v Miller (1983) Miller fell asleep on a mattress whilst smoking a
cigarette. He was awoken by the flames, but instead of putting the fire
out, he simply got up and went into another room, as s result, the house
was damaged by the fire. He was convicted of criminal damage.…read more