The paradigmatic case of statutory duties of care can however be found in the
“Good Samaritan” or “easy rescue statutes.” Article 450 of the Dutch Criminal
Code, for instance, imposes punishment on the failure to take steps that one could
take without danger to himself to save another from death. Likewise, Section 323c
of the German Criminal Code imposes liability for the failure to render assistance
during accidents, common danger, or emergency.
Some scholars have argued that such easy rescue statutes intrude too far into the
personal liberty of the citizens and should therefore be rejected. As free and
independent individuals, we are not supposed to function as our brother’s keepers,
so the argument runs. This is, for instance, the prevailing view in the English penal
system where a failure to render aid cannot give rise to liability. As early as in 1887,
the scholar Stephen wrote in his digest of the criminal law: “A sees B drowning and
is able to save him by holding out his hand. A abstains from doing so in order that B
may be drowned, and B is drowned. A has committed no offence.”
7.5.2.2 Commission by Omission
Next to imposition by written law, the second way in which duties of care may arise
is by judicial interpretation. Over the years, courts have in their case law created
duties of care that will, in certain situations, give rise to liability for failure to act
even though the applicable statutes in question were worded in terms of positive
action. With regard to the offense of murder, for instance, the crucial question thus
becomes in which circumstances the verb “killing” can be extended to encompass
also cases of letting die. However, the extensive interpretation of “killing” that is
necessary to make it include cases of letting die raises questions of legal certainty,
as it seems difficult for citizens to know beforehand when the courts will assume a
duty of care.
Over time, a variety of duties of care have been created by case law. Although
these duties are manifold and the terminology in which they are framed slightly
differs from country to country, they can nevertheless, with regard to their content,
be catalogued in the following way:
a) Duties imposed on a person in a special relationship to the victim—these duties
may range from family and domestic relations to business or economic
relationships. Parents have, for instance, a duty to protect their children from
harm, and spouses are under an obligation to care for each other.
b) Undertaken duties—under this category, cases can be subsumed where a person
has voluntarily assumed a responsibility or has undertaken a duty but has not
fulfilled his “obligation” with the occurrence of harm as consequence. Think, for
instance, of a swim instructor who omits to rescue his student from drowning.
c) Duties based on specific qualities of the offender—many people, whether at the
workplace or otherwise, are subject to particular duties flowing from their social
role/position. For instance, different duties might apply to police officers, build-
ing contractors, managers, or doctors. The level of care required from this class
of persons is usually considerably high. Taking into account their training and
skill, they are deemed to react swiftly and diligently to prevent the occurrence
of harm.
134 J. Keiler et al.