Omission Evaluation

The Law on omission's I found to be extremely difficult to evaluate. For this reason I wrote an essay and placed a vast amount of evaluation within it. I then bullet pointed these points and extended them. This handout is to help cover the AO2's on Omissions.

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Evaluation on the Law of Omissions.
Moral and Legal duty: There are many instances where we can see a moral duty to act. However, as Stephan J.
stated a person does not have to act if there is not a legal duty to. For this reason the difference between a
moral and legal duty can be difficult. A person could watch a child fall of a cliff but does not have to stop the child
from doing so. This raises serious issues morally, but under legal rights a stranger would not have to act. This is a
problem on the law of omissions and shows our need for Good Samaritan Law.
Strict Liability offences: It can appear vastly unfair that there can be a crime that is strict liability and can also be
committed through an omission. This means that all that needs to be proven is that the defendant failed to act,
the mens rea is irrelevant. This is illustrated in the Domestic Violence Crime and Victims Act (2004) which makes it
clear that any member of a household where a child dies to due to domestic violence will be liable. This raises
serious policy issues as surely a defendant should not be liable of a strict liability offence and failure to act.
Where a duty exists: The concept of a duty can be extended to a
vast amount of areas. This is illustrated by Khan and Khan (1998)
where the Court of Appeal made it clear that due to judge and jury
deciding where a duty exists that the area covered by the law on
omissions will continue to grow. This could cause serious problems
for human liberty and it would mean that it would be reduced to the
extent that we are not free to act in any situation.
When does a duty cease to exist: If the defendant has formed a
duty of care then how to they get out of this duty? This is one
problem on the law. This is because a defendant may take on a
voluntary duty of care of an individual but then wish to make this duty cease to exist ­ how does this occur? This
can be a serious problem for the law on omissions as a person may be unable to escape a duty of care and liability
will be imposed for any harm that they could have avoided.
Contractual duty: A person bound by contract to have a duty may be at
risk of harm themselves, does this appear fair? This is one of the major
problems with the creation of a contractual duty of care as it appears
unreasonable that the defendant should put themselves in harm's way to
stop another harm from occurring.
Potential problems with Good Samaritan Law:
o It appears irrational that a defendant should put themselves at risk
to help an individual they know. This appears more irrational if it is a
complete stranger.
o A rogue could act like they are in an emergency situation in order
to lour people into harm's way. Since people would have to act they would have no choice. Therefore, they
could be harmed due to executing a legal duty.
o It is not clear what is meant by an "emergency situation" for this reason if
this law was brought about in our law this would have to be clearly defined
in order to be fully understood.
Incompetent of taking on a duty: If the defendant suffers with some form of
disorder that makes them incapable of caring for themselves then surely they
could not take on a duty of care of another. The law has not made this distinction
and so this could be serious area of issue. If a person, incompetent of taking on a
duty does so but they fail to carry out the duty accurately then can they be liable.
Suppose a person took on voluntary duty of care of their elderly parents but
were unable to help due to a disorder, would they liable for a failure to act?


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