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The list of established duties above is not a ‘closed list’ (R v Khan and Khan [1998] Crim LR 830). These are common law duties (ie judge-made duties) and the list is not exhaustive. As a result, there is the possibility that, in a future case, one of the existing duties may be extended to cover other situations, or you may argue that a new duty may be recognised. The latter is highly unlikely and rather remote but is still worth considering. It is advised, therefore, that when faced with a failure to act in a problem-based question and a recognised duty cannot be found, but it seems right that liability should be found, these possibilities should be highlighted.

in practice

An important practical point is to question who is responsible for ‘extending’ the various duties to act. Is that a matter for Parliament, the judiciary, or the jury on a given day?

As stated above, the general view is that, despite a few exceptions, the duties exist in the common law and thus should be modified, extended or created by the judiciary. Indeed this is the approach taken in the case of R v Singh (Gurphal) [1999] Crim LR 582. However, a difficulty has arisen since the case of R v Khan v Khan [1998] Crim LR 830, where the Court of Appeal held that whether a duty of care exists is a matter for the jury on the facts they are trying.