Omission Is Failing To Act

a) An omission is failing to act. There is no liability for a failure to act. For example, if a person is drowning, we are under no legal duty to help him, even if we are close enough to do so. However, there are exceptions to this. When a person is under a contract to act, his failure to do so can mean the defendant is criminally liable. This is shown in R v Pittwood (1902) where the gatekeeper of a train track forgot to close the gate. A car went over and the passengers died. The gatekeeper was found guilty of manslaughter for neglecting his duties. Another way where an omission can be the basis of the actus reus is when parents owe a duty to look after their children. Parents can’t avoid the responsibility of their children, at least until
There are two tests to determine this: the factual cause test and the legal cause test. The factual cause is otherwise known as the ‘but for’ test. The ‘but for’ test determines whether or not the defendant’s actions caused the consequence. The legal cause will work out whether the chain of causation was broken. The chain of causation can be broken by the victim’s own act. The defendant won’t be the legal cause if he can show that the victim caused the end result himself. This will only happen if the victim’s reaction was totally unforeseeable. This links to the case R v Williams (1992) because the defendant didn’t think that the victim would jump out the car when the defendant attempted to rob the victim. Another way the chain of causation can be broken is by an act of a third party such as bad medical treatment. However, this is very rare because if the person who was the legal cause didn’t harm the victim, the victim would not have gone to the hospital and the hospital wouldn’t have given the victim poor medical treatment. R v Smith (1959) is an example of this as the soldiers stab wound was substantial therefore the bad medical treatment did not break the chain of causation. One case however did break the chain due to bad medical treatment and that was R v Jordan (1956) because his wounds were healing and weren’t operative or substantial. The ‘egg shell skull’ rule holds that the pre-existing vulnerability of a victim is not a defence. This is where the victim has a particular weakness that makes him particularly susceptible to harm. In such cases the ‘defendant must take his victim as he finds him’. The case relating to this is R v Blaue (1975) where the defendant stabbed a Jehovah’s Witness, who, because of her religious beliefs, refused a blood transfusion and died. Ryan’s case is quite similar to Jordan’s as both cases considered whether the chain of