Читать книгу Criminal Law - Mark Thomas - Страница 87

Ordinarily, a contractual obligation exists only between those individuals party to the contract (often referred to as being inter se). In this regard, the law of contract is often distanced from the reach of criminal law. However, it has been understood that a failure to fulfil contractual obligations, that is likely to endanger lives, can lead to criminal liability. The classic example of this can be seen in R v Pittwood (1902) 19 TLR 37. The defendant was employed to operate a level-crossing on a railway but omitted to close the crossing gates when a train was signalled. A cart was crossing when a train struck it and killed one of the carters. The defendant was charged with and convicted of gross negligence manslaughter. As you may have learned in the law of torts, there is often a difficult divide to be made between contractual and tortious breaches. Pittwood was likely in breach of contract by failing to close to gate; however, the victim was not a party to the contract (the contract was between the defendant and his employers), and thus no claim could be founded there. More accurately, the defendant’s liability can be found in the tortious duty of care to the users of the crossing, whom he was paid to protect in his duty and whose lives may be endangered should he fail to perform his duty. For a more recent application of the principle in Pittwood, see R v Yaqoob [2005] EWCA Crim 1269 where a taxi manager was liable for failing to have the tyres of a minibus checked as part of the vehicle’s MOT resulting in a fatal accident involving that vehicle.

Importantly, the issue here is whether an individual has failed to perform their contractual obligation. Should an individual perform such an obligation but the victim suffers regardless, it will become harder to establish that individual’s liability. Take the following example:

example

Jack is a lifeguard at the local swimming pool. Jack notices that Jill is struggling to swim and appears to be drowning. Jack dives into the pool without hesitation to save her. Unfortunately, despite his best efforts, Jack is unable to save Jill from downing.

In this instance, Jack cannot be said to have failed to act – he dived into the pool to save Jill. His contractual obligation will require him to protect the safety of pool users. Whilst Jack has failed to save Jill, he has appeared to make every effort to do so and has not omitted in his contractual duties. In that regard, Jack may not be liable for the death of Jill.

A debate that is open for interpretation is whether the duty to act imposed on emergency service providers, such as the police, paramedics and the fire service, would more accurately fall under this heading. Indeed, each of these services act under an official duty; however, such duty cannot exist without a contract of employment. On that basis, it is questionable whether the duty on emergency services personnel would be more apt under this heading given their contractual obligation or whether the duty remains one of official duty. Such point remains moot as, in practice, a failure to act will be found in certain circumstances, but it is still helpful to attempt to categorise such individuals and find the potential basis for their duty to act.