Going back to the drowning example, the defendant would be liable if the victim was a child in a pool with a water depth of six inches, or if there was a swimming device nearby that could easily be thrown victim, or if the defendant carried a mobile phone that could be used to call for help. However, the law will never punish anyone for not jumping into a raging jet of water, that is, the law does not require the potential saver to be at risk of drowning, although the person may be a paid lifeguard to patrol the given beach, river or pool. Regardless of the terms and conditions of employment, an employee can never be required to do more than is reasonably appropriate in all circumstances. In R v Dytham (1979) QB 722, a police officer on duty stood up and watched a man being beaten to death in front of a nightclub. He then left without calling for help or an ambulance. He was convicted of the common law offence of intentional misconduct in the exercise of public office. Widgery CJ said: If you`re facing a lawsuit or believe you may have breached an obligation to act, it`s best to contact a lawyer. It can be difficult to determine responsibility for another person`s injuries. A personal injury lawyer can explain any liabilities you may encounter.

An omission is an inaction that usually results in legal consequences other than positive behavior. In criminal law, an omission constitutes actus reus and gives rise to liability only if the law imposes an obligation to act and the defendant violates that obligation. Also in tort law, liability for omission is imposed only on an exceptional basis if it can be established that the defendant was obliged to act. In situations of death with dignity where a patient is unable to communicate his or her wishes, a physician may be relieved of his or her duties, as recognized by the House of Lords in Airedale National Health Service Trust v Bland (1993) AC 789. Here, a patient who had survived for three years in a persistent vegetative state after suffering irreversible brain damage during the Hillsborough disaster continued to breathe normally, but was only kept alive by tube feeding. It was decided that treatment could be properly discontinued in such circumstances, as the well-being of the patient should not be kept alive at all costs. Lord Goff nevertheless made a fundamental distinction between acts and omissions in this context: it is trivial that an accused can only be punished for what he has done, as opposed to what he only thought – however evil those thoughts may be. [1] Our criminal law requires at least one objective physical manifestation of the accused`s evil state of mind. And while this may take the form of mere words,[2] it`s clear that bad thoughts alone are not enough to engage responsibility. Although positive behaviours (acts/orders)[3] prima facie (i.e. at first glance/glance) are considered illegal, omissions are at first sight considered legal. For an omission to be considered illegal, the prosecution must convince the court that the defendant was legally required to act (making his inaction (an omission) illegal.

It is worth remembering that illegality is the requirement excluded by justifications such as private defence, necessity or consent. If an accused succeeds in proving a justification, his conduct is (ultimately) considered lawful. In the case of commissions (positive conduct), the accused can only invoke a justification to dismiss the conclusion that his conduct was unlawful. However, in the event of omission, a defendant has two bases on which he can avoid concluding that his conduct was unlawful: first, that he was not legally obliged to act in the first place; and, in addition, that his conduct was justified in any event. For example, although I am legally obliged to control my vicious dog, I may have the right to put it on someone who attacks me – if I am allowed to act in private defense. The test in our law for determining whether there is a legal obligation concerns the legal convictions of the Community, as shaped by the values of the Constitution. The general rule that Community judicial convictions determine whether there is a legal obligation was expressed in the tort case Minister van Poliesie v. Ewels. [4] In this case, the Applicant was attacked by the Police Sergeant in a police station under police control in the presence of several other police officers who did not intervene. The question arose as to whether the other services (the permanent police officers) were legally obliged to intervene in the circumstances.

Rumpff CJ (in unanimous judgment): He accepts the premise that there is no general obligation on a person to avoid harm to another person, even if that person could easily prevent such harm, and even if, for purely moral reasons, that person could be expected to act positively to prevent harm. However, it is also accepted that, in certain circumstances, there is a legal obligation for a person to avoid harm to another person. It appears that the stage at which an omission is considered unlawful conduct has been reached when the circumstances of the case are such that the omission not only causes moral outrage, but also requires the legal conviction of the community that the omission is considered unlawful. The policeman is not only a deterrent and a detective, but also a protector. The applicant was attacked at the police station under police control and in the eyes of a number of police officers for whom it was possible to prevent or stop the attack on the applicant. Taking into account all the circumstances, I think the police`s duty to assist the applicant was the legal obligation. This test (of the legal beliefs of the community) must now be interpreted as being shaped by the values of the Constitution (Carmichele v. Minister of Safety and Security).

[5] In general, physicians and hospitals are required to provide adequate care to their patients and an omission may violate this obligation unless an adult patient with normal legal capacity terminates the obligation by refusing consent. There is a conflict in public order. The patient autonomy policy enshrines a right to self-determination – patients have the right to live their lives as they wish, even if it harms their health or results in premature death. The interest of society is to maintain the concept that all human life is sacred and must be preserved as far as possible. It is now common knowledge that the right of the individual comes first. In Re C (Adult: Refusal of Treatment) (1994) 1 WLR 290, a patient diagnosed with chronic and paranoid schizophrenia refused to allow his gangrene foot to be amputated. This was made possible because his general ability showed him to understand the nature, purpose, and effect of life-saving treatment. In Re B (Adult: Refusal of Medical Treatment) (2002) 2 AER 449, the presumption that an adult has full legal capacity may be rebutted if: unless there is a law or contract establishing the obligation, there is generally no obligation to act. However, an obligation may arise when one person voluntarily assumes responsibility for another person.

An obligation to act often results from a law or a contractual relationship. Examples: One may also be held liable not for the commission or omission of an act, but for a prohibited situation (also known as a “condition”). Examples include possession of a prohibited substance or material, or drunkenness in public.