Omissions Flashcards
general principle
Omissions
no liability for omissions at common law unless specific legal duty to act exists.
can offence be committed by omission
yes, but only where legal duty
Gibbins and Proctor (1918)
- allowed murder and GBH with intent to be carried out by omission
- murder verdict could be found if D withheld food from child with intent to cause child GBH and death resulted.
- facts: killed daughter by starving her.
Stone and Dobinson
- Gross Negligence manslaughter can be committed by ommission
- Gross = obvious risk of death.
- facts: duty of care was created by taking in relative and assuming duty of care (this was legal duty).
Continuing Act
Fagan [1969]
- continuing act (not really omission but still)
- Principle: To constitute this offence (battery) some intentional act must have been performed: a mere omission to act cannot amount to an assault.
Finding a Legal Duty
5 standard legal duties:
Family/household obligation
- **Stone and Dobinson ** - typically it is parent to child, or sibling to sibling, does not normally arise where child to parent or uncle/extended family (has to be more prior agreement to support)
Prior agreement to support another
- Instan (can be implied or express)
- Airedale NHS Trust v Bland [1993] duty can only be relieved by large official body.
Duty under a K
- Pittwood - employed to operate gate, left gate open and led to death… duty existed to watch gate and protect public.
Prior dangerous act
- Evans TEST
- Miller
Duty under modern welfare/administrative statute
- Children and Young Persons Act 1933
- Road Straffic Act 1988, s170
test, authority
Prior Dangerous Act
Evans [2009] TEST
- when a person has created or contributed to the creation of a state of affairs which he knows, or D ought reasonably to have known, has become life threatening
- a duty on him to act by taking reasonable steps to save (V) will normally arise.
- This test is different from miller in that it is not just satisfied by whether or not D knew, but whether or not D ought to have known.
Miller [1983]
- squatter case
- Where D has initiated a source of danger to certain interest of others,
- D has a duty to take reasonable steps to avert the danger created,
- whether or not the danger was created wittingly or even voluntarily by D
Santana-Bermudez
- The rule, is not that the danger must be created by an innocent initial act of D’s; just that the act can be innocent (like in Miller)
duty based on family/household obligation:
Stone and Dobinson
- duty of care found: due to blood relation, V’s dependence on D, and D’s voluntary assumption of care (this also falls under agreement to support)
Duty based on prior agreement to support
Instan [1893]:
- a prior undertaking of support can be implied as well as explicitly made
Airedale NHS Trust v Bland [1993]
- doctor was under no duty to continue to treat such a patient where a large body of informed and responsible medical opinion was to the effect that no benefit at all would be conferred by its continuance.’
- Principle: Distinction between act and omission. Would be unlawful (murder) to bring about his death by lethal injection (but lawful to let them die once large body medical opinion deemed okay)
authority
Duty under contract:
Pittwood (1902)
- example of duty under K
- D employed to operate gate at railway crossing. Went for lunch and forgot to shut gate. Hay cart driver was hit by train trying to cross and killed
TEST for OMMISSION CULPABILITY
Ommission and Causation
Morby (1882)
- proof that medical treatment would have saved child not might was required.
Broughton [2020] TEST
- In order to establish a breach of duty was a substantial cause of death, it must be established to the criminal standard of proof (beyond a reasonable doubt) that the person concerned would have lived (without the ommission)
