to a member of staff at the university;
•try to contact a member of Jack’s family?
These are the sorts of questions you will have to consider when assessing the potential liability of individuals. Remember, the law here is judge-made and therefore has the opportunity to develop. An interesting case that considers these questions is R v Ruffell [2003] EWCA Crim 122, where the defendant and victim had both self-administered drugs. The victim showed signs of overdose and collapsed. The defendant first attempted to revive the victim before then leaving him outside his house and asking his mother to collect him. The victim died as a result of hypothermia and opiate intoxication and the defendant was charged with gross negligence manslaughter. Whilst the appeal was made against sentence, the Court of Appeal took the opportunity to affirm the reasoning of the trial judge who concluded that:
the deceased was a guest of the appellant in the appellant’s family home and that he was a friend … and that he had taken upon himself the duty of trying to revive him after what had happened.
HHJ Fawcus would explain on appeal that ‘[w]hat followed, of course, was putting the deceased outside, and that clearly gave rise to the situation in which the jury could consider whether there had been a breach of that duty’.
Had the defendant not attempted to resuscitate the victim, would he be liable? Although he did invite him into his home, he did not voluntarily assume care, nor was there necessarily a dangerous situation created by the defendant exclusively. This case demonstrates the difficult boundaries that are often drawn and require extensive thought and critique throughout your studies. See also R v Barrass [2011] EWCA Crim 2629, in which the defendant owed a duty to act in relation to his elderly sister for whom he cared for a failure to summon medical help (though note that the defendant pleaded guilty and this case is better observed as one of dependency rather than relationship). In R v Evans [2009] EWCA Crim 650, a half-sister was not considered as holding a duty to act by relationship (though see 2.6.4.6).
2.6.4.5Duty by assumption of care (voluntary undertakings)
A duty to act may also be established where the defendant voluntarily undertakes to care for another who is unable to care for himself. He may be unable to care for himself as a result of age, illness or other infirmity. As made clear above, a parent has no legal duty to care for a child who has reached the age of 18 and is ‘entirely emancipated’ (R v Shepherd (1862) Le & Ca 147). However, should that child become ill and thus dependent on his parents, there may well be a voluntary assumption of care by the parents in given circumstances requiring them to act (R v Chattaway (1922) 17 Cr App R 7).
Here, a duty may either be express or implied (see Mead, ‘Contracting into Crime: A Theory of Criminal Omissions’ (1991) 11 OJLS 147).
Express duty
An example of an express duty can be seen in the case of R v Nicholls (1874) 13 Cox CC 75, where the defendant agreed to assume care of the victim, her granddaughter, upon the passing of the victim’s mother. The victim was neglected and died as a result. The defendant was charged with and convicted of gross negligence manslaughter as a result of her failure to care for the victim with an express agreement to do so. Brett J directed the jury as follows:
If a grown up person chooses 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 (at all events) wicked negligence, and if a person who has chosen to take charge of a helpless creature lets it die by wicked negligence, that person is guilty of manslaughter.
Nicholls did not owe a duty simply because she was the victim’s grandmother; instead, the duty arose due to the assumption of care.
Implied duty
An example of an implied duty can be seen in the case of R v Instan [1893] 1 QB 450. In this case, the defendant lived with the victim, her aunt, who was taken ill (prior to her death no one but Instan had any knowledge of her aunt’s condition). The victim became bed-bound and was unable to care for herself or call for help. The defendant failed to provide the victim with food or call for medical assistance, but was comfortable in continuing to care for herself (she was happy to eat her aunt’s food). The defendant was convicted of gross negligence manslaughter as a result of the implicit duty of care she held in the given circumstances. Lord Coleridge CJ in the Court for Crown Cases Reserved explained that:
It would not be correct to say that every moral obligation involves a legal duty; but every legal duty is founded on a moral obligation. A legal common law duty is nothing else than the enforcing by law of that which is a moral obligation without legal enforcement. There can be no question in this case that it was the clear duty of the prisoner to impart to the deceased so much as was necessary to sustain life of the food which she from time to time took in, and which was paid for by the deceased’s own money for the purpose of the maintenance of herself and the prisoner; it was only through the instrumentality of the prisoner that the deceased could get the food. There was, therefore, a common law duty imposed upon the prisoner which she did not discharge.
… The prisoner was under a moral obligation to the deceased from which arose a legal duty towards her; that legal duty the prisoner has wilfully and deliberately left unperformed, with the consequence that there has been an acceleration of the death of the deceased owing to the non-performance of that legal duty.
As you can identify from the passage of Lord Coleridge CJ, the precise nature of the duty to act imposed on Instan was not expressly categorised. For example, Hawkins J questioned whether an obligation existed by way of implied contract. However, Lord Coleridge CJ, who provided the judgment of the Court, did not identify the nature of the duty to act; his Lordship merely affirmed that a legal obligation to act in this case existed. In that regard, Instan may be characterised as a case involving an implied voluntary undertaking of responsibility or one of implied contract.
The principle of Instan was applied in the most cited of omissions cases: R v Stone; R v Dobinson [1977] QB 354.
case example
Charge: Gross negligence manslaughter
Case progression: Crown Court – Guilty
Court of Appeal – Conviction upheld
Point of law: Duty to act after assuming responsibility
In R v Stone; R v Dobinson [1977] QB 354, the victim (Fanny) suffered from anorexia and came to live with her brother (Stone) and his mistress (Dobinson). The victim was, at first, able to care for herself; however, her condition quickly deteriorated to the extent that she became bed-bound. The victim required urgent medical assistance which was not summoned and she died as a result of the lack of care received. The defendants were charged with and convicted of gross negligence manslaughter as a result of their failure to care for the victim upon the assumption of her care when she first came to live with them.
The Court of Appeal upheld their convictions on the basis that the pair had voluntarily assumed responsibility over the wellbeing of the victim and as such owed a duty of care to her which, if breached (as it was), was capable of amounting to a crime.
Lord Justice Lane explained the duty to act on Stone and Dobinson as follows:
