Liability for Omissions - Essay Example

?Liability for Omissions Introduction The English legal system is very categorical on its definition of omission; this is the failure of an individual to act on any issue or events taking place within their vicinity. A person does not therefore become liable for any damages that result from failing to act not unless the law specifies the actions under the particular situation. The law does not therefore impose the “Good Samaritan” notion on its subjects; this implies that one is not compelled to help others. Liabilities arise when one volunteers to help and errors arise from his or her actions and therefore lead to damages (DUTTWILER, 2004). However, there are special cases where the law specifies that a person act in order to save a situation failure of which results in criminal liability. Proponents of this type of legislations argue that the law should not bind people to help others since such a situation restricts people’s independence. Example: Tom was driving to town on a rainy afternoon, after driving for more than thirty minutes his car began heating up and huge white smoke began billowing from the bonnet of his car. Luckily, for him, the car had broken down some few meters to a bridge. He therefore alighted from his car and took a five litre water bottle which he had never travelled without from the trunk of his car and followed a small footpath that lead to the stream to fetch some water which could help cool his engine. He got to the stream, filled his container with the cold water, and began the short walk to where he had parked his car. However, a few meters from the riverbank, Tom heard hysterical screams emanating from the river, he turned and drowning in the river was a little boy probably seven years old. He immediately dived into the river without considering his actions, unfortunately, Tom had never swam before in a flowing water and it is only until he got into the water that he realized that he had made a mistake. He managed to grab the boy but the strength from the water current the weight of the boy overpowered him and before long, they were both drowning. It thus became a survival of the fittest situation; the boy was still alive and therefore held on to Tom tightly without letting go. Tom was fast losing breadth and he therefore needed to act swiftly to save his life or else they would both drown. In a sharp turn, he pushed the boy away from and fortunately managed to hold onto a root a few meters off the riverbank. The push from Tom combined with the strength of the water waves to give the boy a powerful thrust into a rock. The boy knocked his head and bled to death instantly. Just then, a group of young divers who had been tracing the boy from upstream arrived and one of the saw Tom push the boy away from him. They later removed the body from the water but a legal tussle was just to begin. Analysis The liability of omission begins when one decides to help in a desperate situation and later acts carelessly thereby causing a loss. In such a situation, the victim takes responsibility for his careless action. The law had not compelled Tom to try and save the boy, he could have simply looked at the young boy drown and continued with his business. In such a situation, he is acquitted from any liability since the law does not impose acts of humanity on the population. Had he left, Tom could have continued with his journey to the town and could not have answered to either the group of divers or the police. Additionally, should he have made a formal police report, he could have only been considered as responsible citizen and might therefore have appeared in the court only as a witness and helped the police with investigations to the best of his account of the event. The law does not command compulsory aid unless in special situations. By jumping into the water in an attempt to save the boy, Tom takes full responsibility of the boy and his subsequent acts of carelessness eventually result in the death of the boy. Immediately he jumps into the water, Tom definitely becomes bound by the law to save the boy. However, should he act responsibly and a death or any other loss results despite his responsive conduct, he could possibly explain the loss as collateral damage and possibly receive support from the victims and therefore set free without additional liabilities. Tom’s actions on other other hand portray a substantial amount of laxity, which result in the death of the boy. Furthermore, the existence of the eyewitness to support his careless actions makes him guilty of either murder of manslaughter depending on how he defends himself. The above case and analysis indicate the restrictive approach that the law takes in relation to liabilities of omission. It is better to witness a crime and not act than attempt to act in good will and thereafter act carelessly and cause a loss to which the law holds one accountable. By defining this, the law draws a distinction between misfeasance and non-feasance, the two are common legal terms; misfeasance refers to where a party acts carelessly as is the case above while nonfeasance refers to a case where one does not act at all and is therefore safe from any legal obligation. The general principle in the English law in relation to omission is that there is no liability for an act of omission. This categorical statement by the law encourage the development of a society in which people do not care about others and do not therefore involve themselves with helping people in need no matter how serious the situation is for others. This validates the claim that there is no Good Samaritan duty under the laws in the country apart from in circumstances where there is criminal liability in for failure to act. Such cases include: Undertaking This refers to a situation where one agrees voluntarily to perform a particular duty and later fails to perform it or performs it carelessly. In such a situation the evident omission does attracts liability since the subsequent omission is in contravention of the voluntary obligation that he or she committed to. The argument for such a case is that there was no use of coercion in making the official commitment and that had the person not committed to the undertaking, another person could have possibly committed to the task and executed it perfectly. In such a case, the act of commission is carelessness and an open defiance of the binding agreement. The principle of undertaking applies in case portrayed above and Tom becomes liable to the death of the boy simply because his failure to act responsibly did not only contravene the commitment he voluntary made thereby resulting in the death but also curtailed the professional effort of the divas who could possibly have saved the boy from drowning. The principle of undertaking is voluntary and may do not in most cases guarantee payment for the services. It therefore dictates that people analyze the commitments they make since the law is very stringent on the ramifications of careless execution of duties after voluntary committing to undertake them. This principle therefore discourages the development of a cohesive society in which people freely help one another since in the process of helping; it is possible to face a criminal offense for acting shoddily (HERRING, 2012). Special relationships Certain relationships compel responsibility and failure to act responsively attracts criminal liability for the consequences of the omission. Among the most common duty of relationship, arise from the family institution. Parents are obliged to provide safe and secure residence for their children. It is the duty of a parent to feed, cloth, shelter and educates his or her child. Such responsibilities come naturally with the birth of a child into the family. A parent who thereafter omits such fundamental responsibilities is held liable for committing a crime. Omission in such a case is a criminal offense implying that it is an offense committed against the state and the state therefore becomes the prosecutor. In proving liability under such circumstances, the prosecutor proves that the parent had deliberately abandoned his or her children and is not therefore providing for them despite his ability to. The law does not provide a minimum level to which parents should provide for their children. This explains the existence of the poor and the rich all of who live in the same societies. A parent does not therefore have to provide to a particular of the level in order to acquit the liability of omission. However, the law has a way of determining that a parent is indeed capable of providing for his children but is deliberately opting not to a feature that is resultant of carelessness. In such a case, the parent becomes liable for omitting his or her parental obligation thereby placing the life of the children in harm’s way (Allen, 2005). The court therefore determines the best punishment for the parent while finds an alternative settlement for the children. Other forms of special relationship include an employer and an employee in whom both the employer and the employees become liable for omitting a number of obligations such as payment and the execution of duties. Schools also have relationships with the pupils thereby compelling the school staff to act in particular ways and take legal obligations for their acts of omissions. Contractual duties Contractual duties arise from formal contracts where one is contracted to perform a particular task. Contacts are guided by stringent contract legislations that bind the parties in the contract. The contracted individual therefore has the moral and legal obligation to complete all the tasks related to the contract and therefore becomes legally liable for any loss or damage that arises from his or her acts of omissions (SINGER & LA FOND, 2010). Contracts are formal agreements entered into by two parties consisting of adults who should therefore portray understanding of the contract document. The details of the contract list all the roles of all the parties involved in the contract, before signing or binding oneself to a contract document, it is often important for people to read and express understanding of the documents and the details they carry. The principle of contract originated from the case R v Instan in which after contracting a medical practitioner, the doctor failed to avail drugs to the ailing woman who thereafter succumbed to her ailments. This portrayed a major lack of understanding of the contract document that the doctor signed. According to the document, he was to supply every medical resources necessary for the treatment of the old woman. When the woman later died and the death resulted from the lack of the important drugs that the doctor ought to have supplied, he thus became liable for not meeting the terms in a document he had initially signed. Creation of a dangerous situation This is a complex provision in the laws relating to the liability of omission. The principle analyzes the actions of people in elation to their results. An act of omission that makes an environmnet dangerous enough to cause harm to other people results in legal obligation for the person whose actions resulted in the harm. After making an environment dangerous, it is natural that one clears the danger or else face legal compulsion into appropriate conduct, which begins with accepting the liability and therefore the results of the careless actions that make the environment danger. This applies to everyone who interacts with public environments or public places accessible by other people (FINNIN, 2011). A carpenter handling tools while repairing a monument in a public place unintentionally drops a nail, should he realize later that he dropped the nail; he should clear the place thereby making it safe for other users of the place. However, any injury resulting from the nail becomes the legal obligation of the carpenter. This principle arose from the case R v Miller that showed lack of responsibility by the risk creators thereby compelling the courts to impose a legal obligation on the offender. After parking a car unintentionally at the foot of a police officer, Miller learned of his actions but still deliberately refused to remove the car from the police officer’s foot thereby validating the case. Duties arising from decrees, laws or court orders These are formal government policies formulated and therefore implemented with the aim of safeguarding the interest of the society. Failing to abide by such legislations attract penalties, which represent legal obligations. Government policies and laws coerce obedience; the government has resources including the courts and the laws, which ensure obedience to its subsequent policies and legislations. Such therefore ensure compliance with the state laws thereby preventing harm to other members of the society. Omissions do not often occur in such cases, however in their rare nature; the defiant become legally liable to the results of their acts of omissions. Failure to provide breadth samples at a roadblock is a crime on its own. The subsequent result of such an open defiance to state laws further attracts different penalties. Bibliography ALLEN, M. (2005). Textbook on Criminal Law, Oxford, Oxford University Press, Oxford. DUTTWILER, M. (2004). Liability for omission in international criminal law. Thesis (LL.M.), International Human Rights Law, Dept. of Law -- University of Essex, 2004. FINNIN, S. (2011). Elements of accessorial modes of liability: article 25(3)(b) & (c) of the Rome Statute of the International Criminal Court. Thesis (Ph.D.)--University of Melbourne, Melbourne Law School, 2010. HERRING, J. (2012). Criminal law: text, cases, and materials. Oxford, Oxford University Press. SINGER, R. G., & LA FOND, J. Q. (2010). Criminal law: examples and explanations. New York, Aspen Publishers. Read More