At the start of this section, it was stated that this is one of the most cited examples of liability arising out of a failure to act. However, there remains relatively little case law on such relationships. The question before us is exactly how far this duty will extend.
Based on the idea of a special relationship, would you say that the following owe a duty of care to their counterpart:
•unmarried couples;
•siblings;
•extended family (uncles and aunts);
•students or friends cohabiting together;
•parent and child over the age of 18?
Using the authorities before us, it appears unlikely that any of the above situations would justify imposing a duty to act (see cases such as R v Shepherd (1862) Le & Ca 147 and R v Sinclair (1998) (unreported) 21 August, CA). It is for this reason that Child and Ormerod (Smith, Hogan, & Ormerod’s Essentials of Criminal Law, 3rd edn (OUP, 2019)) argue that the better and ‘more justifiable’ way to proceed is to focus on ‘dependence’ as opposed to special relationships. Let us use an example to assist our understanding here.
example
Jack and Jill are law students sharing a flat at university. Jack locks himself in his bedroom refusing to eat or drink. It is later discovered that Jack has died from starvation.
A number of questions arise from this scenario, including:
•Is Jill under a duty to ensure that Jack is safe?
•If Jill tries to offer Jack food and drink, does she then assume responsibility for Jack?
•Is there a point where Jack becomes dependent on Jill (ie how much dependence is required) and does Jack or Jill have to be aware of this? (see Ashworth, ‘Manslaughter by Omission and the Rule of Law’ [2015] Crim LR 563)
Put yourself in Jill’s shoes. Would you:
•contact the police;
•speak 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