Chapter 3: Omission

Question 1

What is omission?

Answer 1

Omission is a failuire to act (a negative act)

Question 2

What is the general understanding of omission?

Answer 2

A person is not liable to omission, unless they have a duty to act which the law imposes a duty on the defendant to do a particular act

If the person fails to act, they are liable. (although it is a negative act, since they have the duty to act it is equivalent to a postitive act)

Question 3

Is omission a positive act?

Answer 3

No, it is a negative act, although if one has a duty of care/duty to act, it is treated as a equivalent to a positive act.

Question 4

Are legal duties imposed on a person forever lasting?

Answer 4

Legal duty is not forever, it can be discharged. But must be done reasonably as it depends on circumstances of each individual case; through objectivity test

Question 5

What is the assumption by law of a normal samaritan with regards to the negative act?

Answer 5

The law is autonimous in this regard, that an ordinary person does not have a duty to protect someone

Question 6

What are the 3 elements of omission?

Answer 6

1. A duty of care is imposed by law
2. A wilful breach of such study of care
3. Breached caused death

Question 7

What are the 3 examples of statues that impose a duty of care.

Answer 7

1) Section 170(4) of the Road Traffic Act 1988 (amended by the RTA, 1991)

• An offence if one fails to report a road traffic accident to the police within 24 hours

2) Section 6 of the RTA 1988

• Offence for a motorist who, without reasonable excuse, fails to provide a police officer with a breath specimen when required to do so

3) Section 1(2)(a) of the Children and Young Persons Act 1933

• Offence when one fails to maintain a child. Doesn’t just apply to parents (can be guardian, or sm that’s supposed to take care of them)
• When a person is legally responsible to maintain a child fails to do so by failing to provide adequate food, clothing, medical aid or a place to stay

Question 8

What are the 6 common law that imposes a duty of care?

Answer 8

1. Duty arising through contractual obligation (i.e. jobs)
2. Duty arising from relationships (Legal or Blood)
3. Duty arising from the assumption of care for another (person can’t care for themselves)
4. Duty through holding public office (i.e. law enforcements)
5. Duty through creation of dangerous situations
6. The extent of duty on doctors to keep patient alive

Question 9

What are the relevant omission cases for each duty imposed by law?

Answer 9

1) Duty by contractual obligation

• R v Pittwood

2) Duty imposed by relationship

• R v Gibbins v Proctor
• Re B (a minor)

3) Voluntary assumption of responsibility

• R v Stone & Dobinson
• R v Smith
• R v Instan

4) Duty through holding public office

• R v Higgins - feed prisoner
• R v Dytham - police officer

5) Duty through creation of dangerous situations

• R v Miller

6) Duty on doctors to keep patients alive

• R (Nicklinson) v Ministry of Justice
• Airedale NHS Trust v Bland

Question 10

R v Pittwood [1902]

contractual

Answer 10

Facts: Accused was employed by railway company to ensure that the gate was shut when a train was due to pass (duty of care)

Held: There was a gross negligence, as the man was paid to keep the gate shut and protects the public. A man might incur criminal liability from a duty arising out of contract

Doctrine of Privity of contract

Question 11

What is the general duty that common law imposes in duty arising from relationships?

Answer 11

Generally common law imposes a duty on parents to protect their children from physical harm and that spouses are under a duty to aid each other

Question 12

R v Gibbins & Proctor [1918]

Relationship

Answer 12

Facts:

1. Man had a mistress and had a child
2. Man gave money to the mistress to feed the child
3. She didn’t buy food.
4. Man and woman convicted of murder of a man’s child, as they withheld and starved the child to death

Held:

• The woman was also found guilty as she took the money to buy food for the man’s child (at this moment she had the assumed a duty towards the child)

Question 13

Re B (a minor) [1981]

Relationship

Answer 13

Facts: Baby was suffered from down syndrome which required an operation for the child to live. Parent refused their onset to operation.

Held: Court stated that the decision of the parents to allow the child to die was entirely responsible

Question 14

What are the 3 issues to take into account for VAR to apply?

Voluntary assumption of responsibility

Answer 14

1. The assumption of responsibility must be voluntary
2. Must distinguish between assumption of mere “care” and “responsibility”
3. Assumption of responsibility must be of an individual incapable of taking care of themselves and has since become reliant on the defendant

Question 15

R v Instan [1893]

VAR

Answer 15

Facts: Defendant lived with aunt who became ill and unable to care for herself or even ask for help.

Held: D charged and convicted with manslaughter, held that she was living with aunt meant a duty was imposed on her to care for the aunt.

Which she willfully and deliberately unperformed

Question 16

R v Stone & Dobinson [1977]

VAR

Answer 16

Facts

1. D’s sister was eccentric, morbidly and unnecessarily anxious about putting on weight
2. 1st time it happened, they were just in time to save her
3. 2nd time, died
4. Were not in time to call doctor.

Held

• Guilty
• Court was of the opinion that S and D providing minimal care to the victim had assumed a duty of care towards the victim and had been grossly negligent

Question 17

R v Smith [1979]

VAR

Answer 17

Facts

1. S’s wife was ill and refused medical treatment when persuaded by husband
2. When she finally gave him permission it was too late before the doctor arrived
3. Sufficient evidence that if S had given the wife medical attention earlier she would’ve lived

Held

• Judge gave a verdict that one of the deciding factors should be whether the patient is capable of making rational decisions
• If not S would be liable

Takeaway

• Duty is imposed on the D if patient can’t take care of themselves

Question 18

What is the reason why the defendant was liable in R v Smith?

Answer 18

Reason for duty in this case comes from shared family life or close communal living

• Not so much blood tie, but the reliance and expectation of assistance is necessary
• Thus relatives also has the assumption of responsibilites

Question 19

What are 5 key takeaways from R v Smith on VAR?

Answer 19

• Legal duty between spouses are voluntary assumption of responsibility
• Couples that are married but separated have no legal duty
• Assumption of responsibility need not be a burden on defendant forever. Can discharge from duty if taken proper steps, but he can’t willfully abandon his obligation or responsibility
• Reason for duty in this case comes from shared family life or close communal living
• Termination of duty - If a duty arises from a particular relationship, duty terminates when relationship ends

Question 20

R v Dytham

Public office

Answer 20

Facts: Police was off duty in uniform failed to assist a main who was being assaulted

Held: Held to have committed a misdemeanour for wilfully neglecting to help a person which was a duty imposed on him by law

Question 21

R v Higgins

Public office

Answer 21

Facts: Jailors and constables owe a duty to the public to carry out their duties

Held: liable for failing to act (i.e. not feeding prisoners)

Question 22

R v Miller [1983] 2 AC 161

Duty by creation of dangerous situations

IMPORTANT

Answer 22

Facts: A tramp accidentally dropped a lit cigarette on a mattress he was sleeping on. Woke up and found the mattress was on fire, but didn’t attempt to extinguish the fire. Merely moved to another room and house caught fire.

Held: Failure of the accused to put out the fire was sufficient to deem liable.

cigarette case

Question 23

What is the doctrine in Miller for being liable for the case though it AR and MR happened at different times

R v Miller [1983] 2 AC 161

Answer 23

Where an actus reus may be brought about by continuing act, it is sufficient that the accused had mens rea during its continuance (doctrine of continuous act)

Question 24

What are the 3 elements needed regarding a duty through creation of dangerous situations?

From R v Miller [1983] 2 AC 161

Answer 24

1. D created the dangerous situation inadvertently (accidentally)
2. D realised he created the situation
3. D failed to take the steps in order to rectify the dangerous situation created

Question 25

What is the assumption by law on the duty on doctors to keep a person alive in trite law?

Answer 25

In trite law that **no doctor can lawfully do a positive act with the intention of ending life**, no matter how good his motives may be

Question 26

What acadaemic provides the greatest concern with regards omissions by **doctors** care to keep patient alive?

Answer 26

Professor Andrew Ashworth * The need to distinguish whether the act of the doctor is considered a **positive act** or **negative act** * (i.e. pulling the plug to make the guy die) Takeaway * Really depends on whether the act would confer any **benefit** to the victim * If no benefit, no duty - Airedale NHST v Bland

Question 27

What are the 4 cases for duty of doctors to keep patients alive

Answer 27

1. **Airedale NHS Trust v Bland [1993]** 2. **R (Nicklinson) v Ministry of Justice [2012]** 3. R v Chesire 4. R v Smith

Question 28

**Airedale NHS Trust v Bland [1993]** | Duty of doctors keeping patient alive ## Footnote IMPORTANT

Answer 28

Issue * Courts were considering whether it was **lawful** for doctors to **discontinue** treatment for patients who was in a **persistent vegetative state** Held * Removal of a nasogastric tube was held to be an omission * Not guilty HOL affirmed 2 situations 1. Whole regime including artificial feeding amounted to medical treatment and care. It was held that it was unlawful for doctors to simply stop treatment if its continuance would **confer some benefit** on the patient 2. **If no benefit at all** would be conferred by continuance of medical treatment, (with a lot of medical opinion) then doctors are under **no duty** to continue to treat patients Takeaway * Patient was considered brain stem dead - keeping him alive had no benefit

Question 29

**R (Nicklinson) v Ministry of Justice [2012]** ## Footnote Exceptional case that duty was not on doctors

Answer 29

Facts 1. Nicklinson suffered a severe stroke 2. Wanted asssisted suicide Held * Refused assisted suicide * That if the victim was incapable of committing suicide, then mercy killing would be equivalent to **murder** Exception * Where a patient is **competent** and refuses treatment, that refusal must be honoured * If done otherwise, treatment against person's will would be assault (Ms. B v An NHS Hostpital [2002] Takeaway * In comparison with Airedale, the patient was in a PVS which was what deemed it lawful * In Nicklinson, the V was mentally competent | exceptional/argumentative