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One of the most common and cited examples of the duty to act is in the circumstances where a duty arises as a result of a relationship between the defendant and the victim. Known as ‘derivative liability’, where a bond exists between two individuals such that they are in a close or special relationship with one another, the law may impose a duty on either individual to act. In practical terms, the closer the relationship between the pair, the more likely the law is to impose a duty to act on one for the other.

Examples of common duties by relationship include:

•parent and child;

•spouses; and

•doctor and patient.

As shall be questioned below, however, the extent of relationships may well vary with certain classes of individual being responsible for others. Indeed, the law in this area has developed on a case by case basis and may not always appear to be consistent or coherent. Table 2.7 provides an overview of these duties.

Table 2.7Duty established by special relationship

Duty	Examples
Parent and child	Section 1 of the Children and Young Persons Act 1933 provides: ‘A parent or any other person over the age of 16 years who has responsibility for a child under that age may incur liability for any wilful neglect of that child that was likely to cause unnecessary suffering or injury to health.’ This includes a failure to provide adequate food, clothing, medical care, etc. See R v Lowe [1973] QB 702 for an example of an upheld conviction under this statute.
	In R v Gibbins and Proctor (1918) 13 Cr App R 134, the defendants deliberately starved the victim, Nelly (D1’s daughter; D2 being the girlfriend of D1), who died as a result. Both defendants were convicted of murder. D1 owed the victim a duty as a parent, and D2 owed a duty by voluntarily assuming parental responsibility for the victim (in that she received money for purpose of buying food but failed to do so). It remains unclear how far this relationship ground may extend and whether an obligation is owed by a child to their parent.
Spouses	In R v Hood [2003] EWCA Crim 2772, the defendant failed to summon help for his wife who had fallen three weeks earlier, due to her poor health and condition, and suffered broken bones. She died as a result and the defendant was charged with gross negligence manslaughter due to his failure to act in circumstances where there was a familial duty to act. (Note that the defendant’s appeal was against sentence and not conviction.) In the older case of R v Smith [1979] Crim LR 251, the Court of Appeal held that a duty to act between spouses existed upon a voluntary assumption of care and not simply because they are married.
Doctor and patient	A doctor owes a duty to their patient to act to preserve life. Such is detailed in the Hippocratic Oath sworn by doctors. They have a duty to act in the best interests of their patient. Can a doctor therefore kill a patient if it is in the patient’s best interests? According to Lord Goff in Airedale NHS Trust v Bland [1993] AC 789, a doctor will be liable for murder or manslaughter where his positive act brings about the death of the patient. However, an omission on the part of a doctor (ie the withdrawal of treatment where it is in the best interests of the patient) may be lawful. See below at 2.6.6.

At the start of this section, it was stated that this is one of the most cited examples of liability arising out of a failure to act. However, there remains relatively little case law on such relationships. The question before us is exactly how far this duty will extend.

Based on the idea of a special relationship, would you say that the following owe a duty of care to their counterpart:

•unmarried couples;

•siblings;

•extended family (uncles and aunts);

•students or friends cohabiting together;

•parent and child over the age of 18?

Using the authorities before us, it appears unlikely that any of the above situations would justify imposing a duty to act (see cases such as R v Shepherd (1862) Le & Ca 147 and R v Sinclair (1998) (unreported) 21 August, CA). It is for this reason that Child and Ormerod (Smith, Hogan, & Ormerod’s Essentials of Criminal Law, 3rd edn (OUP, 2019)) argue that the better and ‘more justifiable’ way to proceed is to focus on ‘dependence’ as opposed to special relationships. Let us use an example to assist our understanding here.

example

Jack and Jill are law students sharing a flat at university. Jack locks himself in his bedroom refusing to eat or drink. It is later discovered that Jack has died from starvation.

A number of questions arise from this scenario, including:

•Is Jill under a duty to ensure that Jack is safe?

•If Jill tries to offer Jack food and drink, does she then assume responsibility for Jack?

•Is there a point where Jack becomes dependent on Jill (ie how much dependence is required) and does Jack or Jill have to be aware of this? (see Ashworth, ‘Manslaughter by Omission and the Rule of Law’ [2015] Crim LR 563)

Put yourself in Jill’s shoes. Would you:

•contact the police;

•speak to a member of staff at the university;

•try to contact a member of Jack’s family?

These are the sorts of questions you will have to consider when assessing the potential liability of individuals. Remember, the law here is judge-made and therefore has the opportunity to develop. An interesting case that considers these questions is R v Ruffell [2003] EWCA Crim 122, where the defendant and victim had both self-administered drugs. The victim showed signs of overdose and collapsed. The defendant first attempted to revive the victim before then leaving him outside his house and asking his mother to collect him. The victim died as a result of hypothermia and opiate intoxication and the defendant was charged with gross negligence manslaughter. Whilst the appeal was made against sentence, the Court of Appeal took the opportunity to affirm the reasoning of the trial judge who concluded that:

the deceased was a guest of the appellant in the appellant’s family home and that he was a friend … and that he had taken upon himself the duty of trying to revive him after what had happened.

HHJ Fawcus would explain on appeal that ‘[w]hat followed, of course, was putting the deceased outside, and that clearly gave rise to the situation in which the jury could consider whether there had been a breach of that duty’.

Had the defendant not attempted to resuscitate the victim, would he be liable? Although he did invite him into his home, he did not voluntarily assume care, nor was there necessarily a dangerous situation created by the defendant exclusively. This case demonstrates the difficult boundaries that are often drawn and require extensive thought and critique throughout your studies. See also R v Barrass [2011] EWCA Crim 2629, in which the defendant owed a duty to act in relation to his elderly sister for whom he cared for a failure to summon medical help (though note that the defendant pleaded guilty and this case is better observed as one of dependency rather than relationship). In R v Evans [2009] EWCA Crim 650, a half-sister was not considered as holding a duty to act by relationship (though see 2.6.4.6).