Q.

The range of duty which ground liability for omission is far too narrow and should
be expanded. Imposing a general duty of “easy rescue” would be straightforward and a
welcome development of the law.

Discuss.

Answer:

There is a range of duties for which liability is imposed in case of omission but imposing a
general duty of easy rescue could be imposed if we expand the situation under which
omission is legally liable. The question requires us to discuss omission. The situation under
which it applies. Beside that it is essential to define easy rescue, its implication on law and
the different theoretical views.

Omission means failure to act, liability on failure to act which is considered as a breach of
law under the following circumstances; when there is a special relationship when there is a
legal duty to act when the duty was assumed voluntarily, and lastly if the defendant is unable
to avert a dangerous situation which was created by him.
In all the above-mentioned circumstances, the law is enabling the free will of a person by not
making it legally binding to help a person and also punishing those who harm us through
their act or by omission to act.

The question requires us to define the term easy rescue and the implication it would have if
on common law if they are enforced. Easy rescue means to rescue someone when a person
has the ability, when the risk is small and when it causes merger amount of inconvenience to
the other person. Now if we enable easy rescue to be a part of law it might change the above
mentioned circumstances as follows:

1. A person would be held liable to help even when no special relationship exists
between them.
2. A person would have to help even when there is no legal duty forcing him to act.
3. Assumption of legal duty will be eradicated to a compulsory duty to act.
4. The creator of a dangerous situation has the responsibility to avert it.

Elaborating it further there is a need to discuss the different views concerning the liability for
omission. The two academic views put forward by William and Ashworth are the

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conventional approach and the social responsibility approach. As Ashworth states these
approaches are not polar opposite, they are different in the extent of duty they impose.
The conventional approach states that there should not be a legal obligation to help others as
it takes away their liberty and autonomy. Furthermore, only those should be held liable who
omit to act under a legal duty. Example of it could be if A sees B in distress then A should
not be legally obligated to help B as such an approach might cause liability on a great number
of people making it impractical. For instance, if A’s house is on fire and there is a crowd of
people who are watching, should they be legally obliged to help? Should they all be held
liable if they opt not to help? It would be impractical to allow the liability to be governed by
chance/coincidence. If they all are held liable then are we all not criminals one way or the
other? According to Ashworth, ‘stopping to help is a part of moral aspiration not the morality
of duty.’
In the Social responsibility view, Ashworth puts forward the view that the liability on
omission could be expanded to include a duty on people to report a serious crime or to effect
an easy rescue. As it is believed that the value of one's life is greater than the value of any one
temporary freedom.
Even though the idea of holding a person liable for not fulfilling a moral duty of easy rescue
might seem attractive but the problem lies when we look at omission and one’s own positive
action under the same lens. Is not rescuing the same as carrying out a crime of murder?
For example, if you see a burning house with someone inside, is it the same as lighting it up
on fire to kill the person inside? Surely both crimes are not the same. We do not twist the
common law offenses to enable something which the parliament did not see as appropriate.
Ashworth's social responsibility view supports that, society as a whole will benefit if they
help each other in extreme danger but the liability should be reserved where the danger out
ways the inconvenience to the person.
Feinberg gives an example where he says that a person should provide reasonable assistance
to a person in danger when it does not cause him inconvenience. This raises the question of
what is reasonable assistance? What one considers as reasonable assistance may not be
reasonable for someone else and it could cause a person to look guilty. Norrie explains that
the idea of imposing a legal duty to act as endangering the prospect of liberal order and
western capitalism as it negates the autonomy of a person.
Hogan says that there is no way that a person can cause an event by doing nothing. He
explains that with an example that if the grandmother is standing in close proximity to the gas
stove and her skirt catches fire. It cannot be said that her grandson killed her by failure to put

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out the fire. Besides that, no sane doctor will enter failure to call the fire brigade in the cause
of death.
Freeman is of the view that a person in distress should be helped when there is a clear
opportunity to assist, when a person is in the position to help and when it causes a small
amount of risk and inconvenience.
In the common law approach, criminal liability is imposed on the actions to satisfy social
expectations, not moral aspiration.
However looking at the society we live in, we operate as a community where we live together
as a modern community. The idea of imposing a legal obligation on basis of moral aspiration
needs to be developed in stages, the law under which moral aspirations are held liable needs
to be clearly defined. Besides that, if a moral obligation is to be made legally binding it could
be made so under the principle of fair warning. It is difficult to extract a clear conclusion of
which theory is best. But according to my analysis, the range of duty that ground liability for
the omission is not narrow as it clearly defines the circumstances under which failure to act
holds legal liability. It should not be expanded to impose a general duty of “easy rescue”. In
addition to that, it would not be constructive to apply duty to act basing it on moral
aspiration. It will only enable liability on many and liability and accountability based of
chance/coincidence. Such an approach will limit self-interest as well as free will.

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