Fanny was a lodger or not she was a blood relation of the appellant Stone; she was occupying a room in his house; the appellant Dobinson had undertaken the duty of trying to wash her, of taking such food to her as she required. There was ample evidence that each appellant was aware of the poor condition she was in …
This was not a situation analogous to the drowning stranger. They did make efforts to care. They tried to get a doctor; they tried to discover the previous doctor. The appellant Dobinson helped with the washing and the provision of food. All these matters were put before the jury in terms which we find it impossible to fault. The jury were entitled to find that the duty had been assumed. They were entitled to conclude that once Fanny became helplessly infirm … the appellants were, in the circumstances, obliged either to summon help or else to care for Fanny themselves.
This case is often viewed as harsh in nature. Both defendants were of low intelligence and struggled to care for themselves (Stone being partially deaf and almost entirely blind, and Dobinson being described as ‘ineffectual and inadequate’). Stone and Dobinson demonstrates a wide extension of the test set in Instan, given that a duty was held to be owed by the defendants even in circumstances where it was burdensome, difficult or onerous to perform. Williams (‘Criminal Omissions—The Conventional View’ [1991] 107 LQR) described such a decision as a demonstration of ‘judicial cruelty’ given the characteristics of the defendants. Further, what is not clear from Stone and Dobinson is whether the defendants would have remained liable had they simply ignored the victim and not attempted to care for her. I would submit that they would have been liable given that the victim still came to live with the defendants. Although she was able to care for herself at first, the defendants would have assumed a duty as a result of taking Fanny into their home.
2.6.4.6Duty by creation of a dangerous situation
Also known as the ‘doctrine of supervening fault’, the final circumstance where a duty to act may exist arises where the defendant sets in motion a dangerous chain of events and then fails to correct it. The defendant is required in such circumstances to take reasonable steps to avert the danger, and a failure to do so may result in criminal liability for the consequences that follow.
The classic authority on this point is that of R v Miller [1983] 2 AC 161.
case example
Charge: Arson (Criminal Damage Act 1971, s 1(3))
Case progression: Crown Court – Guilty
Court of Appeal – Conviction upheld
House of Lords – Conviction upheld
Point of law: Creation of a dangerous situation and a duty to avert danger
In R v Miller [1983] 2 AC 161, the defendant was ‘sleeping rough’ in a building and fell asleep on a mattress whilst smoking a cigarette. He awoke to find the mattress smouldering but, instead of calling for help, he simply moved into the adjoining room and fell asleep again. As a result, a fire started and spread throughout the building causing extensive damage. The defendant was charged with and convicted of arson in the Crown Court.
The House of Lords upheld his conviction (affirming the decision of the Court of Appeal) on the basis that the defendant created a dangerous situation which he was under a duty to put right.
Above, it was mentioned that the defendant must take reasonable steps in the circumstances to avert the danger he has created. In this case, what did the law expect the defendant to do? Ultimately that would depend on the circumstances:
• If the fire was a raging inferno, the law would not have expected the defendant to attempt to extinguish it himself. However, the law would expect him to call for help.
•If the fire was small and containable, the law might reasonably expect the defendant to attempt to extinguish it. If such was not possible, the reasonable man would call for emergency assistance.
This discussion led to Lord Diplock, in the House of Lords, commenting:
I see no rational ground for excluding from conduct capable of giving rise to criminal liability conduct which consists of failing to take measures that lie within one’s power to counteract a danger that one has oneself created, if at the time of such conduct one’s state of mind is such as constitutes a necessary ingredient of the offence. (emphasis added)
His Lordship followed this by reasoning that:
I cannot see any good reason why, so far as liability under criminal law is concerned, it should matter at what point of time before the resultant damage is complete a person becomes aware that he has done a physical act which, whether or not he appreciated that it would at the time when he did it, does in fact create a risk that property of another will be damaged; provided that, at the moment of awareness, it lies within his power to take steps, either himself or by calling for the assistance of the fire brigade if this be necessary, to prevent or minimise the damage to the property at risk. (emphasis added)
Following Miller, the questions to be asked in this regard were:
(a) Did the defendant create a dangerous situation?
(b) Did the defendant realise that he has created this dangerous situation?
If the answer to both questions is ‘yes’, the defendant is under a duty to act to rectify the situation within his power. A failure to do will be a criminally liable omission.
Miller was subsequently applied by the trial judge in the trial at first instance of R v Khan and Khan [1998] Crim LR 830 and was fully endorsed by the Law Commission in its draft Criminal Code (Law Com No 177, 1989) at clause 23. However, the Court of Appeal quashed the convictions of Khan and Khan and the draft Code has not been brought into force.
A point of difficulty arose in the law as a result of the case of R (Lewin) v DPP [2002] EWHC 1049 (Admin), where the Divisional Court held that the defendant owed the victim no duty of care in leaving his intoxicated friend in a car during extremely hot weather conditions. Such an omission led to the victim’s death. This decision did not, necessarily, conflict with the decision in Miller given that there was no evidence to suggest that the defendant knew that such a risk of death was possible. Whether Lewin would now be decided in the same way is questionable as a result of the decision in R v Evans [2009] EWCA Crim 650.
case example
Charge: Gross negligence manslaughter
Case progression: Crown Court – Guilty
Court of Appeal – Conviction upheld
Point of law: Creation of a dangerous situation and a duty to avert danger
In R v Evans [2009] EWCA Crim 650, the defendant, the half-sister of the victim, supplied the victim with heroin which she self-administered. The victim reacted badly to the drug and collapsed. The defendant failed to summon help out of fear of prosecution for supplying the drug and the victim died. The defendant was charged with gross negligence manslaughter as a result of her failure to act in contacting the emergency services.
The conviction was upheld by the Court of Appeal on the basis that the defendant
