The Principles of Morality in English Law - Assignment Example

English Law By Due English Law seems to forego the principles of morality when acquits those who do nothing to prevent injury to another, even though they had the opportunity of doing so. As far as morality is concerned, it is cruel to do watch someone get hurt, injured, or even die but do nothing to stop it. English law decides such cases under the light of tort law. It tests whether the ‘failure to act’ qualifies as negligence. Generally, where a person has not created a risk, there is no duty to act for the benefit of another. Therefore, mostly, defendants are not held liable for the harm caused. This is one of the questionable areas of tort law. For instance, if a person sees a child drowning in a pool but does nothing to save him, they would not be held liable. However, if that person jumps in the water to save the child and acts negligently while doing so hence causing harm, they would be held liable for the harm caused due to their negligence. This paper discusses whether it is fair and justified for English law to not impose any liability upon failure to act, and the extent to which it collides with moral principles. It would be seen that the law actually does not violate any moral principles. It rather preserves the freedom of choice for people as they are in the best position to judge their own ability. If one is able to save someone, they may same them. But where one is incapable of saving someone, they should not be forced by law to save them. It is not that failure to act always escapes liability under English law: there are a few exceptions where courts do impose a liability. The most common are the circumstances where there is a special relationship e.g. parental, conjugal, doctor-patient. between the plaintiff and the defendant. Innkeepers, common carriers and certain other business relationships are also covered in this category. Defendants have an affirmative duty to act on the plaintiffs’ behalf and prevent injury where there is such a relation. Another exception is the one that is briefly mentioned above: there is no liability for not acting but once the defendant decides to act, they must do so in a reasonable way so as to avoid any harm that may be caused to the plaintiff due to the defendant’s negligence. Also, where the defendant has a control over land, a third party, or dangerous things that can cause harm to the plaintiff, the defendant has a duty to act and stop the danger. It can be said that maybe the establishment of duty does coincide with moral principles. In Home Office v Dorset Yacht Co Ltd,1 the defendants were held liable for their omission when the plaintiff’s yacht was hit by a stolen boat. The boat was stolen because the defendants, who were supposed to supervise the boys that stole the boat, shirked from their duty and retied for the evening. The defendants were held liable because they were in control of the third party that had caused the damage. In Smith v Littlewoods Organisation Ltd,2 and Lamb v Camden London Borough Council 3 the defendants were not in control of the deliberate acts by a third party and were not held liable. These cases show that English law gives a lot of regard to performance of duty. Where there is a duty, it should be performed or one would be held liable. But where there is no duty, one is free to make the choice of not acting. Under English law, ‘failure to act’ actually means that a duty to act existed and it was breached when the defendant did not do anything.4 It is different from nonfeasance which is a matter of personal choice. According to Fleming, a case of nonfeasance can actually be a case of misfeasance. When a motorist’s failure to apply brakes in time is not an omission entirely, it is actually a part of their negligent driving.5 This means that applying the brakes is to be regarded as a part of a bigger action i.e. driving. Therefore, where a man sees a dying man while driving but does not stop to help, he has not applied the brakes. This is inaction and there would be no liability for it. However, when the same man sees a pedestrian crossing the road and he fails to apply the brakes hence hitting the pedestrian, there would be a liability.6 It is because the traffic rules have created a duty for care for the drivers and they have to abide by this duty. But the first failure to act is also extremely gruesome and absolutely wrong on moral grounds. Yet, the law would impose no liability on the driver. Therefore, it can easily be construed that the English law actually discourages the helping of people in need. Perhaps, it is a good advice to not to “fease until [one] has to.”7 On the other hand, many justifications have been provided by the courts to maintain that no duty to act exists, in Stovin v Wise,8 Lord Hoffman explained, “There are sound reasons why omissions require different treatment from positive conduct… [omission] is less of an invasion of an individuals freedom for the law to require him to consider the safety of others in his actions, than to impose upon him a duty to rescue or protect.” The concept of sanctity of freedom also seems to interfere with the academic debate regarding failure to act. It is usually believed that it is wrong to meddle with an individual’s freedom and this belief is so self-satisfying that it does not require additional reasons for justification.9 The truth is that it has hardly been ever defined what freedom includes. Hence, it can be said that Lord Hoffman does not provide complete information when he talks about invasion of freedom.10 It can be construed that he has referred to that part of freedom where one has a right to refrain from acting. But he has not provided his own definition of freedom. Also, he did not explain as to why one type of ‘invasion of freedom’ (wrongful inaction) is illegitimate but another one (wrongful acts) is legitimate. Freedom can be regarded as a state where one is free from interference by others. However, some degree of interference is actually not harmful but beneficial. Perhaps, freedom should be such that it does not interfere with the freedom of others. But it is easier to put that in general terms than apply it in practice. It is difficult to find a proper standard of interference that does not affect the freedom of others. The law of not imposing any liability upon failure to act also takes some inspiration from the works of Kant.11 He put forth the doctrine of right according to which every individual has a right to make a choice whether to act or not as it is one’s internal affair. The law should not require any person to take affirmative action. He made a distinction with the doctrine of virtue according to which the choice to help others is an ethical affair and not a legal one.12 This idea was also reciprocated by Howarth as he said,13 “…the state has no business telling people that they are bad people, that they are immoral or wicked.” Some have argued that Kant’s ideas are misconstrued in this regard because he has also supported the system of taxation as he believes that the wealthy are obligated to help the unfortunates. Taxes are paid by everyone regardless of what their virtues are.14 The proponents of imposition of liability refer to the works of Bentham and Mill.15 Bentham seems to agree with Kant on the fact that helping others is a matter of private ethics. But he thought that law must interfere in cases where there is a danger to others. Bentham did not go on to provide more arguments in favour of imposing a duty to rescue but Mill’s views16 somewhat complement Bentham: “the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others.” Therefore, Mill believes that the behaviour of members of a society must be restrained to some degree so that they do not cause harm to others. Mill’s ideas are also among the basis of the Good Samaritan Law which is observed in the US but not in UK. This law makes it a duty of every individual to help others when their lives are in danger. In Stovin v Wise, Lord Nicholls gave a rather powerful justification,17 “Liability for omissions gives rise to a problem not present with liability for careless acts. He who wishes to act must act carefully or not at all. (...) With liability for omissions, however, a person is not offered a choice. The law compels him to act when left to himself he might do nothing.” When the law says that an individual has to perform a certain act, the personal choice is restricted and one has to do the act. But when the law says that one may not perform an act, or if one performs, one must perform is properly, it provides one with a choice of not being subjected to the act. Therefore, if one feels that they would not be able to act properly in a particular situation, they can opt not to act at all. However, the exceptions discussed above do impose a liability on one that becomes a cause of harm and then does nothing to prevent it. Hence, it is very difficult to apply Lord Nicholls’ judgement on a consistent basis. Therefore, it can be seen that even though the English law does not impose liability for failure to act, it is fully justified as it protects the freedom of people. When a moment of action arrives, the best person to make the decision is the one who is actually present in that situation. For instance, an individual cannot reasonably be expected to help a drowning man if one is not a good swimmer. The English law allows such people to make the right choice and is not against moral principles. In contrast, it can also be hard to know whether letting someone die or get injured was the best available option to the defendant. The availability of this option might enable certain people to decide not to save even though they possess the ability to do so. But the current system seems to be able to achieve more good than evil. It is difficult to give a definitive verdict on this matter as it would be too general either way. Hence, the best option is to deal with each case individually. References Cf. J. Kohler, ‘Die Menschenhülfe im Privatrecht’, (1887) 25 Jahrbücher für die Dogmatik des heutigen römischen und deutschen Privatrechts 1-141 at 2. Ch. O. Gregory, ‘The Good Samaritan and the Bad’ in J.M. Ratcliffe (ed.), The Good Samaritan and the Law (1966), pp. 23-41 at p. 28. D. Howarth, Textbook on Tort (1995), p. 184. E.J. Weinrib, ‘The Case for a Duty to Rescue’, (1980) 90 Yale LJ 247-293 at 266 E. Lucas, ‘Mill on Liberty’ (1869) 13 NS The Dublin Review 62, reprinted in A. Pyle (ed.), Liberty (1994), pp. 255 ff. at p. 255. H. Mazeaud, L. Mazeaud and A. Tunc, Traité Théorique et Pratique de la Responsabilité Civile (6th edn 1965), nr 525. Home Office v Dorset Yacht Co Ltd [1970] AC 1004 House of Lords I. Kant, The Metaphysics of Morals, translated by M. Gregor (1991), p. 5 J. Austin, Lectures on Jurisprudence, Vol. II (1863), p. 101 (Lecture XX) and A.M. Honoré, ‘Are Omissions Less Culpable?’ in P. Cane and J. Stapleton (eds), Essays for Patrick Atiyah (1991), pp. 33 and 36-37. J.G. Fleming, The Law of Torts, (9th edn 1998), p. 163. J.S. Mill, On Liberty (G. Himmelfarb, ed., 1974), pp. 68-69. K. Jereon, Altruism in Private Law: Liability for Nonfeasance and Negotorium Gestio, (2005) Oxford University Press. K.J. Kemp, Delictual Liability for Omissions (1978) (Unpublished thesis, University of Port Elizabeth, South Africa), p. 564. N. Gray and J. Edelman, ‘Developing the law of omissions: a common law duty to rescue?’ (1998) 6, The Law Journal 240-259 Lamb v Camden London Borough Council [1981] QB 625 Smith v Littlewoods Organisation Ltd [1987] AC 241 Stovin v Wise [1996] 3 WLR 389 Read More