Establishing Dot’s duty of care towards the children
Upon Dot and Annie’s brief initial encounter we are led to pursue an inductive reasoning and assume that Dot’s acceptance of responsibility for the children is implied. Following this interpretation the common law may, as shown by the cases of Stone and Dobinsoni, Gibbins and Proctorii, and Instaniii, imply a duty of care in situations where the defendant has voluntarily assumed responsibility for another’s welfare. By contrast, in Sinclair, Johnson and Smithiv the defendant’s conviction for manslaughter was quashed because he had merely done “a desultory attempt to be of assistancev”. In our case scenario Dot is under a duty of care, having voluntarily undertaken responsibility for the children. Furthermore, Dot can be qualified as being in loco parentis and is expected to observe the same standard of care as a “reasonably prudent parent”vi or a teachervii.
Regarding some of the general issues raised by the landmark case of Adomakoviii, it could be argued that the purpose of this expedition involving identifying mushrooms is dangerous and should subsequently give rise to a higher level of care than might ordinarily be expected of the reasonably prudent parent or teacher in the act of supervising children. It is also common sense that any reasonable person should be aware of the potentially fatal risks involved in a fungi-spotting expeditionix. If the court was to adopt this approach, then a higher duty of care would give rise to a more flagrant breach from Dot’s part. However, one could oppose this argument in reference to the cases of Hodgsonx and Jacqueline Simpson xi in which the defendant(s) were acquitted despite evidence of negligence and acknowledged duty of care. The main rationale of these cases is that omissions generally do not give rise to liability in criminal lawxii.
Dot’s omission to act regarding the poisoned children
Dot’s failure to check the leaflet before Annie left can be considered on its own as a trivial oversight, as well as an omission. Professor Ormerod points out that “murder and manslaughter are capable of commission by omission”xiii. Being under a duty to act, the jury will most likely find that Dot’s conduct has fallen below the standard of the reasonably prudent parent. Effectively, Dot has taken a significant risk by not being able to decipher the photocopy which demonstrates recklessness. Dot’s cumulative actions have culminated in the children’s deaths, and the nature of these omissions becomes more serious when one considers that Dot could have cancelled the expedition upon realising that the leaflet was useless.
Common law has set a fundamental principle that an omission to act can only arise in circumstances where the defendant is under a duty to act. Dot should have at least informed Bob that she wasn’t able to decipher the photocopied pictures. It is likely that the jury will find that Dot’s conduct fell below the standard of the reasonable person, and has therefore committed another omission.
Lord Diplock in Millerxiv established that people who initiate a dangerous situation are under a duty to act to prevent that danger once they become aware of it. Dot has created a dangerous situation by consciously not being certain which fungi were safe to eat and subsequently making a baseless comment: “they are probably ok”. Alan Reedxv discusses the recent application of Miller in the case of Evans xvi in which he confirms that the duty necessary to constitute gross negligence manslaughter is not limited to cases of a familial or professional relationship between the defendant and the deceased. The difficulty in our case scenario is that Dot “turned her back” when the children ate the fungi, therefore giving rise to the issue of whether Dot failed to properly supervise the children at all times.
Has Dot caused the deaths of the children?