vehicle’s MOT resulting in a fatal accident involving that vehicle.
Importantly, the issue here is whether an individual has failed to perform their contractual obligation. Should an individual perform such an obligation but the victim suffers regardless, it will become harder to establish that individual’s liability. Take the following example:
example
Jack is a lifeguard at the local swimming pool. Jack notices that Jill is struggling to swim and appears to be drowning. Jack dives into the pool without hesitation to save her. Unfortunately, despite his best efforts, Jack is unable to save Jill from downing.
In this instance, Jack cannot be said to have failed to act – he dived into the pool to save Jill. His contractual obligation will require him to protect the safety of pool users. Whilst Jack has failed to save Jill, he has appeared to make every effort to do so and has not omitted in his contractual duties. In that regard, Jack may not be liable for the death of Jill.
A debate that is open for interpretation is whether the duty to act imposed on emergency service providers, such as the police, paramedics and the fire service, would more accurately fall under this heading. Indeed, each of these services act under an official duty; however, such duty cannot exist without a contract of employment. On that basis, it is questionable whether the duty on emergency services personnel would be more apt under this heading given their contractual obligation or whether the duty remains one of official duty. Such point remains moot as, in practice, a failure to act will be found in certain circumstances, but it is still helpful to attempt to categorise such individuals and find the potential basis for their duty to act.
2.6.4.4Duty by relationship
One of the most common and cited examples of the duty to act is in the circumstances where a duty arises as a result of a relationship between the defendant and the victim. Known as ‘derivative liability’, where a bond exists between two individuals such that they are in a close or special relationship with one another, the law may impose a duty on either individual to act. In practical terms, the closer the relationship between the pair, the more likely the law is to impose a duty to act on one for the other.
Examples of common duties by relationship include:
•parent and child;
•spouses; and
•doctor and patient.
As shall be questioned below, however, the extent of relationships may well vary with certain classes of individual being responsible for others. Indeed, the law in this area has developed on a case by case basis and may not always appear to be consistent or coherent. Table 2.7 provides an overview of these duties.
Table 2.7Duty established by special relationship
| Duty | Examples |
| Parent and child | Section 1 of the Children and Young Persons Act 1933 provides: ‘A parent or any other person over the age of 16 years who has responsibility for a child under that age may incur liability for any wilful neglect of that child that was likely to cause unnecessary suffering or injury to health.’ This includes a failure to provide adequate food, clothing, medical care, etc. See R v Lowe [1973] QB 702 for an example of an upheld conviction under this statute. |
| In R v Gibbins and Proctor (1918) 13 Cr App R 134, the defendants deliberately starved the victim, Nelly (D1’s daughter; D2 being the girlfriend of D1), who died as a result. Both defendants were convicted of murder. D1 owed the victim a duty as a parent, and D2 owed a duty by voluntarily assuming parental responsibility for the victim (in that she received money for purpose of buying food but failed to do so). It remains unclear how far this relationship ground may extend and whether an obligation is owed by a child to their parent. | |
| Spouses | In R v Hood [2003] EWCA Crim 2772, the defendant failed to summon help for his wife who had fallen three weeks earlier, due to her poor health and condition, and suffered broken bones. She died as a result and the defendant was charged with gross negligence manslaughter due to his failure to act in circumstances where there was a familial duty to act. (Note that the defendant’s appeal was against sentence and not conviction.) In the older case of R v Smith [1979] Crim LR 251, the Court of Appeal held that a duty to act between spouses existed upon a voluntary assumption of care and not simply because they are married. |
| Doctor and patient | A doctor owes a duty to their patient to act to preserve life. Such is detailed in the Hippocratic Oath sworn by doctors. They have a duty to act in the best interests of their patient. Can a doctor therefore kill a patient if it is in the patient’s best interests? According to Lord Goff in Airedale NHS Trust v Bland [1993] AC 789, a doctor will be liable for murder or manslaughter where his positive act brings about the death of the patient. However, an omission on the part of a doctor (ie the withdrawal of treatment where it is in the best interests of the patient) may be lawful. See below at 2.6.6. |
At the start of this section, it was stated that this is one of the most cited examples of liability arising out of a failure to act. However, there remains relatively little case law on such relationships. The question before us is exactly how far this duty will extend.
Based on the idea of a special relationship, would you say that the following owe a duty of care to their counterpart:
•unmarried couples;
•siblings;
•extended family (uncles and aunts);
•students or friends cohabiting together;
•parent and child over the age of 18?
Using the authorities before us, it appears unlikely that any of the above situations would justify imposing a duty to act (see cases such as R v Shepherd (1862) Le & Ca 147 and R v Sinclair (1998) (unreported) 21 August, CA). It is for this reason that Child and Ormerod (Smith, Hogan, & Ormerod’s Essentials of Criminal Law, 3rd edn (OUP, 2019)) argue that the better and ‘more justifiable’ way to proceed is to focus on ‘dependence’ as opposed to special relationships. Let us use an example to assist our understanding here.
example
Jack and Jill are law students sharing a flat at university. Jack locks himself in his bedroom refusing to eat or drink. It is later discovered that Jack has died from starvation.
A number of questions arise from this scenario, including:
•Is Jill under a duty to ensure that Jack is safe?
•If Jill tries to offer Jack food and drink, does she then assume responsibility for Jack?
•Is there a point where Jack becomes dependent on Jill (ie how much dependence is required) and does Jack or Jill have to be aware of this? (see Ashworth, ‘Manslaughter by Omission and the Rule of Law’ [2015] Crim LR 563)
Put yourself in Jill’s shoes. Would you:
•contact the police;
