The English legal system

In the English legal system there is generally no liability for an omission to act, the English legal system does not have a 'good Samaritan rule' neither is there 'no duty of easy rescue'. Fitzjames Stephen gave a classical example of 'A seeing B drowning and is able to save him by holding out his hand. A abstains from doing so in order that B may be drowned, A will have committed no offence.

This example clearly shows that there is no positive duty for B to act, even though B holding his hand out may have saved A's life. This is a controversial issue as the law allows one to watch a person drown without them being prosecuted for any offence. However in some European countries this is different such as in France and Germany where there is a duty of easy rescue and failure to do so will amount to a criminal offence.

As I have earlier said generally there is no liability for failing to act, however there are six exceptions and if a person fails to act then they will be committing a criminal law offence, there is a vast amount of case law in this field which will be used to illustrate the exceptions to an omission. The first exception I will discuss is a special relationship, this is where the law will require an individual to act where there is a special relationship, it is generally recognised the more closer the relationship the more likely the law will impose a duty. Such as a parent and child relationship.

In Downes 18753 which is an early authority on how the law imposes a duty on a special relationship in this case the father failed to provide appropriate medical assistance to their child, they were a religious family and instead of seeing a doctor they were hopeful that the child would be healed by his parents religious prayers, however the child died and the parents sought no medical attention for an ill child so the courts found they were guilty of manslaughter as s47 of the poor law amendment act 1868 had imposed a duty on them and the courts went with this statute to convict Downes.

As the simple duty of seeking medical assistance for their child may have saved his life. Another case which confirms parents have a responsibility over their children is Gibbons and Proctor 19184 in this case the defendants failed to feed their 7 year old daughter who died of starvation, Gibbons the father of the child was found guilty of murder for failing on his duty as he clearly had a special relationship, Proctor who was Gibbons' girlfriend was given money by Gibbons but failed to buy the child any food and as she was living with them a duty was also imposed on Proctor as she should of used the money provided by Gibbons for food.

The law will not only impose a duty for special relationship for parent child relationships but will also impose a duty for other instances such as spouses as in Smith 19795 the defendants wife had a phobia of doctors, so gave birth at home however things went wrong and the baby was still born and there were other complications which affected the health of the victim and the defendant resisted calling an ambulance his wife died, the defendant was charged with manslaughter. Another situation where there is a special relationship is between doctors and patients, doctors must provide adequate care.

In Airedale NHS trust v Bland6 , the case involved a doctor-patient special relationship where a victim from the Hillsborough disaster had irreversible brain damage and could only live artificially with the help from a life support machine, the NHS trust and the family decided in the best interest of the patient would be to end his treatment, however the doctors wanted assurance from the courts if it is permissible for them to switch off the machines, the House of Lords held that the switching off of a life support amounted to an omission and not positive act which means there will be no liability for the doctors.

So it is clear that relationships such as parent child, spouses and doctor patients have a special relationship, however what is not clear is whether relationships such as distant family will class as a special relationship. Another exception for an omission is a voluntary assumed duty of care. This is where the defendant will have voluntarily assumed responsibility to another person, an example of this being where the defendant decides to let an elderly sick relative to stay for a length of time.

And if death occurs because of an omission to look after the victim then the result could be the defendant may be charged with murder or manslaughter, the reason for this is to ensure people who take on vulnerable sick people to stay in their home to ensure they receive proper attention and aren't left neglected.

An early authority of voluntary assumed duty of care is from the case of Nicholls 1874 where the defendant undertook the care of her grandchild, however the child died of neglect and the defendant was charged of manslaughter the trial judge in the case commented 'if a grown up person chooses to undertake the care of a human creature, helpless either from infancy, simplicity, lunacy or infirmity…

and if a person has chosen to take charge of a helpless creature lets it die by wicked negligence, than that person is guilty of manslaughter' Here the judgement made in this case still stands today concerning the law of voluntary assumed duty of care, if someone fails to look after a human, after undertaking the duty they will be guilty of an omission.

It must also be noted that an implied undertaking and then failing to look after that person will still amount to criminal liability which is illustrated in the case of Instan7. One of the leading cases in this field is Stone v Dobinson 19778, Stone and Dobinson in court were regarded to have lower than normal levels of intelligence, and Stone was almost blind.

Dobinson was also held to be inadequate, the reason being both Stone and Dobinson allowed Stone's sister Fanny to live with them as a lodger, she paid small amounts of rent to the family, however she suffered from a psychological disorder and also anorexia and was mainly confined into her own room, she would not eat and keep herself locked in for days at a time, Stone and Dobinson tried to find her doctor but with no luck, Fanny's condition meanwhile was getting worse and Stone and Dobinson did not have the capacity to solve the issue, they asked a neighbour Mrs Wilson to help wash Fanny, they even asked her to help find a doctor and make calls but still no attempt was successful.

Stones Sister passed away and Stone and Dobinson were found guilty of manslaughter because of an omission , as they had not taken proper care of Fanny. A case like Stone and Dobinson, the verdict may seem unfair to punish a couple of clearly low capacity to even look after themselves let alone Stones ill sister. The issue could have been resolved with social services intervention who failed to keep an eye on this family, Lord Lane CJ made it clear that as the family had tried to feed her and also care for her then they must be responsible, as they had voluntarily assumed duty.