Discuss the law relating to omissions and loco parentis

Discuss the law relating to omissions, loco parentis and recent issues regarding health & safety law which may prevent rescuers from acting to save lives. Go on to state your views supported by relevant law and/or proposed legislation that may resolve what appears to be an absurd interpretation of the law in this area at the present time. A comparative element on another country’s attitude to the above issues should be included.

“…it is legitimate for the law to criminalize holding someone underwater so that they drown, but not to seek to compel a person to act by criminalizing, for example refusing to save a drowning stranger". [1] An omission is a failure to act, and in certain circumstances in the committing of such can constitute conviction. Whether there is requirement via omission can depend upon specific language contained in statute. ‘Obstruct, falsify and deceive are words which courts held to be capable of gratification via omission’. [2] It is believed by some commentators ‘liability for omissions should only be imposed for omissions that violate our duties sufficiently that the injustice of not punishing such wrongs, outweighs the diminution of liberty such punishment entails'. [3]  

Omissions can be distinguished from continuing acts, as illustrated in Fagan v. Metropolitan Police Commissioner [4] where driving onto a police officer’s foot and remaining there constituted a single continuous act, rather than an act followed by omission. Supervening faults serve function in the domain of omissions. Such as where a defendant is aware their act may damage property or endanger life and nonetheless go on to take it. In R v. Miller [5] the defendant had created the danger, or a physical act of his had started the fire so he must have caused the fire. This poses how unclear the intentions of the act really need to be. [6] 

The core component which must be present for an omission to exist is a duty to act between the defendant and victim. Such a duty can be encountered in various ways. From special relationships, such as a family link. In R v. Lowe [7] a father failed to call a doctor when his baby became ill. He had a duty to act, and in failing to act constituted an offence. However in this case he lacked mens rea because he was of low intelligence. One can arise from voluntary acceptance of responsibility for another. In R v. Gibbons and Proctor [8] , a father and his mistress failed to feed their child, it was determined the mistress had a de facto duty of care when she moved in. An omission can acquire out of a contractual duty as in R v. Pittwood [9] where a railway crossing keeper was convicted because he had fallen asleep and failed to close the gates which meant a driver of a horse and cart was killed. Lastly, omissions can be present in statutes, such as the Road Traffic Act [10] , where a motorist who fails to report an accident within the first 24 hours commits an offence.

It has been concluded the law on omissions is in drastic need for reform. It is unclear in many circumstances what constitutes a duty [11] , and the rules need to be more consistent. ‘If the top lawyers in a Government committee find the law hard to state clearly, what hope have the Stones and Dobinsons of this world of ascertaining their legal position? [12] 

Loco Parentis literally translates to ‘being in place or position of the parent’ [13] this maxim can apply in many situations, but is commonly used in reference to a teacher-pupil relationship. It imposes a de facto duty of care, and so a failure to act can constitute an omission. This concept poses much of a threat to any passer-by considering coming to the aid of a lost child for fear of being accused of mal-action. In Lord Young’s report ‘Common Sense, Common Safety’, Young researched the health and safety of education dealing with Loco Parentis. He made recommendation for a single consent form, which will be signed by a parent/guardian and cover all activities during a child’s duration at school allowing certain activities to be opted out of beforehand. [14] It was uncovered teachers were not planning school trips because of ‘concern about the threat of legal action should an accident happen.’ [15] In his report, Young intends to ‘inject common sense into Britain’s health and safety laws.’ [16] 

The law should but does not always mirror morality, whether this is because morality is such a wide concept or just that the law is in desperate need of an overhaul in this area. But in the United Kingdom there is no Good Samaritan Law and no Duty to Act to aid strangers with exceptions of the circumstances explained previously. So if you walk past and see a child drowning you are under no legal obligation to attempt a rescue, although morally you may feel obligated.

This area of the law has been contended; in the argument parents are not under a general legal duty to protect their children from foreseeable harm. [17] Findings reveal the parental duty of protection is not a general duty, but may arise in certain circumstances. In the case of Surtees [18] , the claimant brought an action against her former foster-mother. The defendant was not liable on the basis that the injuries sustained were too remote. The judges explained they did not want to force an impossibly high standard of care as to interfere with family harmony. They referred to ‘the care which ordinary, loving and careful mothers are able to give to individual children, given the rough and tumble of home life.’ [19] 

To gain true understanding of Loco Parentis, this essay will investigate the dealing of such issues outside of the United Kingdom. The New Zealand case of McCallion v. Dodd [20] and Hahn v. Conley [21] , an Australian case provide interesting insight to policies surrounding the themes discussed in this essay. In the former, the defendant motorist’s insurance company alleged contributory negligence from the boy’s father. Where the family were walking against the flow of traffic in the dark, where the father was on the inside carrying a baby. North P explained ‘the mere presence of the father at the scene together with the parental relationship meant there was a legal duty to ensure the safety of the child. However Turner and McCarthy JJ took the Australian view ‘the parent’s duty of care is no different to that of a stranger and arises only where the parent has assumed responsibility for the child in a particular situation’ [22] They went on to say no legal duties arose, only unenforceable moral duties were present in this situation. In the latter, a three year-old girl was knocked down by a car when she ran across the road to her grandfather. The defendant motorist’s insurance company alleged contributory negligence from the grandfather. The court held that the grandfather was under no duty to the child. Finding that ‘no legal duty could be imposed in the absence of some positive action on the part of the grandfather’. [23] It can be concluded from the Australian approach that no legal duty can be imposed for a commission, with the exception of special circumstance of the case. Albeit, these cases are of a foreign jurisdiction and so do not indefinitely act as a legal driving force to the UK courts, as we do not know if these cases would be decided the same here. But the judgements show the other side of the argument. That a general legal duty may require some special circumstances rather than a blood, or even non-blood link.

In regards to health and safety legislation, and how it may affect the way in which a member of the public would react to make an attempt to assist someone who is in need of assistance. The Health and Safety Act, [24] imposed a duty upon every employer “to conduct his undertaking in such a way as to ensure, so far as reasonably practicable, that persons not in his employment who may be affected thereby and not thereby exposed to risks to their health and safety". [25] In this sense, read literally, protection was unintentionally extended to the general public. [26] Another problem is the fact the meaning of what is ’reasonably practicable’ could well have changed since 1974.

To introduce the comparative element of this essay, the question will need to be deconstructed to illuminate the encompassed themes. The comparison will identify the law of Canada and specific Provincial Law and equate it to the policy in the UK. Canada is an interesting contrast to the UK, because although it has a Common Law based system, the provinces are governed by different Provincial Law which can vary nationwide. To gain insight, the focus will mainly be on Quebec and on the situation in Alberta and Ontario. Quebec is idiosyncratic to Canada, because it is based on a Civil Law system, such as France, which is envisaged upon the Napoleonic Code.

There is need to explain and distinguish between the concepts of ‘Good Samaritan Law’ and a ‘Duty to Act’. These are different concepts. The former exists as a defence so that if a person attempts in good faith to assist somebody who is injured and for whatever reason fails, and the victim suffers as a consequence, they will be protected by law from being prosecuted or sued. The latter is different in that it imposes upon a bystander an obligation to act to assist someone who is injured. If they fail to take reasonable steps to assist the victim then they may be prosecuted.

Uniformly across Canada, there is Good Samaritan Law, In Alberta this is contained within the Emergency Medical Aid Act [27] , in Ontario, the Good Samaritan Act [28] and only in Quebec out of the whole of Canada is there a ‘Duty to Respond’, namely imposing a duty to act. Reference to this may be found in the Charter of Human Rights and Freedoms, and in the Civil Code. As stated under the heading ‘Right to Assistance:’ [29] 

“every human being whose life is in peril has a right to assistance…every person must come to the aid of anyone whose life is in peril., either personally or calling for aid, by giving him the necessary and immediate physical assistance, unless it involves danger to himself or a third person, or he has another valid reason."

Currently in the UK we do not have a Good Samaritan Law, which essentially a law is expunging any liability from a passer-by who attempts to assist somebody who is injured or in need of help with good intentions. A recent reform proposal by Lord Young, who was instructed to reform the health and safety procedures, stated ‘people who seek to do good in our society should not fear litigation as a result of their actions’. [30] The report made recommendation for Health and Safety procedures for voluntary organizations to be rectified. As it was not always possible for these organizations to obtain the correct information and so were always being prevented from achieving their objectives. The UK’s own Prime Minister, David Cameron states we need to put an end to the senseless bureaucracy. Explaining health and safety in the eyes of the public has never been lower, and we simply cannot go on like this. [31] 

To make any evaluation upon the absurd state of the law regulating this area, a core barrier preventing a rescuer from assisting somebody would be the potential economic loss they may suffer through the civil courts and pursuance in a claim for compensation. As we move towards a ‘Compensation Culture’, threats of civil claims against individuals do not seem such an alien concept. The chairman of Lloyds of London remarked “the Compensation Culture is starting to plunder the UK economy". [32] How far do we want this to go? In Lord Young’s recent report entitled Common Sense, Common Safety, a number of recommendations were made concerning the emergence of the Compensation Culture in the UK. One in particular, purports the enactment of Good Samaritan legislation. Young wanted the public to know that people will not be held liable for any consequences due to well-intentioned voluntary acts on their part. [33] He used a comparison of what people were instructed in winter 2009/10, that they should refrain from clearing snow outside their homes, fearing a passer-by slipped and sued. Explaining “he had never come across a case where somebody was sued in these circumstances". [34] 

In conclusion, after comparing the situations in two different jurisdictions. It can be found that in our legal system there are barriers which can prevent the assisting of a stranger. It would appear that we have entered a time of ‘Compensation Culture’ whereby; we are becoming more and more obsessed with litigation. The perfect illustrations of this are the many advertisements we see for ‘No Win-No Fee’ legal assistance and the rising costs of insurance premiums. We have no Good Samaritan Law, so it can be said people are scared that there is no formalized system in place to shield them, should an attempt to assist unexpectedly fail. Not only that, but we do not have any such ‘Duty to Rescue’, meaning there is no legal obligation to assist a passer-by who may require assistance. However, it can be argued there are exceptions to this rule. Such as the mild legal obligations laid down in various statutes where the offence is covered by an omission. There is a need to distinguish between morality and the law in this area. As morality would surely dictate that, the person in desperate need of your help as you briskly walk past them, giving no regard to their situation, you should do all you reasonably can to help them. The law in the UK states that you do not even need to enquire as to their needs. Maybe it is the intention of Parliament that in the UK, there exists a moral imperative for us to help our neighbour when in need. Perhaps the rise of Compensation Culture has distorted society’s moral code, in that humans now require legal obligation in the form of legislation to recreate the moral standards that are expected of them.