Doing nothing. Wrong?

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The Court of Appeal has recently passed judgment in an area of law which fascinates and baffles law students throughout the country. When can a person be guilty of doing nothing? In English law we have an offence generally described as ‘manslaughter by gross negligence’. Perhaps obviously, this offence is committed when a person is deemed responsible for the death of another due to their very grave negligence. The criminal courts have adopted the civil (non-criminal) concept of negligence for these purposes and consequently negligence has evolved concurrently in the criminal and civil law.

As a general starting point nobody is held liable for their omissions, only for their actions. This principle is subject to certain exceptions, however, in the UK the exceptions are considerably more limited than in many continental jurisdictions. Consequently undergraduate law students are often shocked to be told the story of the baby drowning in a shallow puddle. This story asks the reader to imagine they discover a stranger’s baby lying face down in a shallow puddle in a street near their home. The baby will drown if left. There is no danger to the reader in attempting to rescue the baby. The reader is then asked if they are under a legal obligation to save the baby. To the surprise of all who are told the story, there is no legal obligation to save the baby. The exceptions to the non-liability for omissions rule in the UK are so limited that this case is not covered.

As this blog often likes to discuss the impact of religion on society, it is worth considering how this would impact a well-known Biblical parable. Readers should now have realised that the Priest and the Levite in the story of the Good Samaritan can walk on by without any fear of legal sanction. What about the hero of the story? Perhaps perversely, by assisting the man on the road to Jericho, the Good Samaritan ‘assumed responsibility’ for the care of the injured man. If his treatment was substandard, the injured man would have a claim in negligence against the Samaritan but not against the Priest and the Levite.

Before people rush to tell me the absurdity of the law, there are some points to consider. Firstly, considerably more people have read the story of the Good Samaritan than have read Clerk & Lindsell on Torts (or this post). Consequently, and due to our own innate morality, people still rescue people they find injured. The law is how it is for good reason. Lets return to the story of the drowning baby. If we assume that failure to treat the baby gives rise to the offence of manslaughter, who is the appropriate defendant? The first person on the scene? The most able to help? Everybody who could possibly have helped? Simply this would be unsustainable.

Instead we have defined categories of persons for whom an omission can give rise to negligence. The first is so-called familial responsibility. Quite simply the baby’s mother, father and a few other relatives are legally obliged to assist. The other category is the subject of the recent Court of Appeal decision. You can be liable for your omissions where you created the circumstances which lead to the death.

The case before the Court of Appeal involved a young woman who had procured heroin for her half-sister. The half-sister then injected the drugs of her own free will, tragically overdosing. The Defendant then witnessed classic symptoms of an overdose and was aware of the implication of the symptoms. Fearing punishment, the Defendant failed to call an ambulance but merely hoped her half-sister would sleep off the symptoms. Sadly she never woke. The Court of Appeal upheld the conviction for manslaughter.

This case is something of a high-water mark in this area. The law set out above is deeply controversial. The second exception is extremely broad in scope. It is possible that the courts will look to expand this category to bring us closer to the continental position with respect to liability for omissions.

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