Posted: January 18th, 2023

Law of omissions liability and its evolution: A literature review

Law of omissions liability and its evolution: A literature review.
The law of omissions liability refers to the legal principle that a person can be held liable for failing to take action when they have a duty to do so. This principle has evolved over time and is the subject of ongoing debate in legal circles.
The law of omissions liability refers to the legal principle that a person can be held liable for failing to take action when they have a duty to do so. In the common law, the principle of “duty to rescue” states that individuals have a duty to come to the aid of someone in danger if they are able to do so without risking harm to themselves. This principle is one of the earliest examples of omissions liability and can be seen in situations where a person sees someone drowning and has the ability to rescue them, they have a legal duty to attempt to save the individual. For example, if a person sees someone drowning in a pond and has the ability to rescue them, they have a legal duty to try to save the drowning person.
Over time, the concept of omissions liability has expanded to include not just a duty to rescue, but also a duty to prevent harm. This can include a duty to report crimes, a duty to prevent harm to others, and a duty to protect vulnerable individuals. For example, a doctor has a duty to report child abuse if they suspect it is happening, and a parent has a duty to protect their child from harm.
However, the evolution of omissions liability is not without controversy. Critics argue that it is not always clear when a person has a duty to act, and that holding people liable for failing to act can be overly punitive. They also argue that it can be difficult to prove causation in cases of omissions liability because it is not always clear what harm would have been prevented if the person had acted differently.
One of the key issues in the ongoing debate over omissions liability is the question of whether individuals should be held liable for failing to act when they have a moral duty to do so, but no legal duty. Some argue that individuals should be held liable in such cases because they have a moral responsibility to help others. Others argue that holding people liable for failing to act in such cases would be overly punitive and could have a chilling effect on helping behavior.
The law of omissions liability has evolved over time to include not just a duty to rescue, but also a duty to prevent harm. This evolution has led to ongoing debate about when individuals should be held liable for failing to act and whether moral duties should be taken into account when determining liability.

Works Cited
“Law of Omissions” by J.R. Spencer, Journal of Criminal Law, Vol.75, No.6, 2011
“The Duty to Rescue and Omissions Liability” by R.A. Duff, Cambridge Law Journal, Vol.58, No.1, 1999
“The Limits of Omissions Liability” by A. Ashworth, Oxford Journal of Legal Studies, Vol.22, No.2, 2002
“Moral and Legal Responsibilities to Rescue” by L.A. Finkelstein, Journal of Social Philosophy, Vol.33, No.3, 2002