Negligence by Omission
Following the sad news of Kimani Francis’ death a few months ago, many people have taken to social media to express their views on where the blame for his death should lie.
Even so long after, a lot of facts remain unknown to the public such as: how did Kimani get out of his home? how did he walk that far on his own on the hot road? where did he go? how did he end up in the river? was someone else involved?
Sadly, as with many tragedies in T&T, we may never get answers to these questions, which often times leads to many people questioning the official reports.
Soon after Kimani's disappearance it came to light that his neighbour saw Kimani on the road, called the police and tried to but was unable to catch him. This obviously led to a lot of people blaming her (for not catching Kimani (he was 2 years old after all) or informing his parents) and calling for her to be charged or sued.
Should she have done more? From a non-legal perspective, yes - without doubt particularly since we know what happened. However, does that mean that she’s liable either civilly or criminally? The answer to this lies in negligence and the concept of the ‘innocent bystander’.
Whether someone could be said to be negligent or not is very much dependent on the facts but there are general requirements which must be met. These are that:
1) a duty of care existed
2) the duty of care was breached
3) the wronged party suffered either loss or damage which was caused by that breach.
First off, the neighbour must have owed Kimani a duty of care. Simply, a “duty of care” is a legal duty to take care. This generally requires persons to take reasonable care (which is assessed objectively) to avoid acts or omissions which could reasonably be foreseen to cause harm to another person.
Not all persons owe a duty of care to each other. Carelessness alone isn’t enough. The persons must have a relationship (in the legal sense – such as parent to child, employer to employee, doctor to patient, driver to other road users etc) which makes it just that that person's carelessness will have legal consequences.
Liability for negligence may occur from either acts or omissions. These are what may amount to a breach of a duty of care. In this case, we’re considering the neighbour’s inaction so it’s an omission of a third party (that is, a stranger or someone who was not directly involved before).
Omissions are trickier than where there’s a positive act since the harm is not directly tied to the third party’s inaction. They are less tricky where your relationship (like those above) which creates the legal duty discussed before with the other person requires that you do something which you failed to do. Otherwise, there is usually no liability for a pure omission.
Let’s see how that works in real life with some examples:
you’re a doctor driving along Solomon Hochoy Highway and you witness the immediate aftermath of a major car accident. If you choose to stop, you can help the victims. However if you were to continue driving, you would likely not be liable to the victims of the accident if they suffer any more injury than they would have had you stopped and assisted.
you see someone on the side of the road in distress and about to drink gramoxone. If you continue about your day and do not stop to help them, you’re likely not liable.
you see a car on the North Coast Road about to drive into a landslide or off the precipice. Are you as another road user or casual bystander required to warn them of them impending danger? More than likely, no.
This is the whole concept of the innocent bystander. The law puts no obligation on persons to rescue or protect where there’s no pre-existing relationship between them. It seems unfair but question it like this: why should the law pick on me? If pure omissions could constitute negligence, then the potential pool of liability would be very broad. Of that pool of persons, why should one person be held liable over the other?
This is one of the times where what the law requires and what morality requires divide. That said, like a lot of things, there are exceptions to the rule. In these exceptions the law will say that’s not a pure omission and you are liable for your failure to act.
When can you be liable then for an omission to act? These are generally based on the relationship between the persons:
1. Control – where you exercise a high degree of control over them. Think of parents and children, employers and employees or doctors and patients.
2. Assumption of responsibility – where by your actions you’ve assumed liability for the person who has suffered harm.
3. Creation or adoption of risk – where you’ve created the dangerous situation (even if accidentally) which later causes harm to another or where you’ve assumed the risk by taking on responsibility for a dangerous situation.
There are a couple of other scenarios and exceptions, but these are the more relevant in this case. In the unfortunate case of Kimani, the question is what duty did the neighbour owe to Kimani for any omissions of his parents, or otherwise?
It could be argued that by following Kimani and failing to catch him, or by waking her husband and contacting the police, the neighbour assumed a duty of care – being a two-year old roaming on his own. Whether this is enough, however, remains to be seen.
With respect to the potential criminal aspect of this, while gross negligence manslaughter is generally based on the same concept of negligence, we aren’t addressing the criminal aspect specifically since it may still be an open investigation.
If any of these situations apply to you, you should consult with your lawyer immediately. If you do not already have a lawyer, you can read more about choosing a lawyer here.
Last updated: 31 July 2022