Practice question · Put in order
Arrange the steps in analysing a possible commission by omission, in order.
- Identify a result offence that the omission is said to have produced
- Establish that the person occupied a position of guarantor
- Identify the source of that duty among those Article 11 names
- Ask whether the failure is equivalent to causing the result in the sense of the statute
- Ask whether the required action would have prevented the result with a probability bordering on certainty
Hints
- There must be a result offence before there is anything to prevent.
- The equivalence judgment comes last, after the duty and the hypothetical causal question.
Show the answer
- Identify a result offence that the omission is said to have produced
- Establish that the person occupied a position of guarantor
- Identify the source of that duty among those Article 11 names
- Ask whether the required action would have prevented the result with a probability bordering on certainty
- Ask whether the failure is equivalent to causing the result in the sense of the statute
Why
The last step is the one most often skipped, and it is the one Article 11 puts at the centre. Everything before it can be satisfied — a duty, a source, a certain preventive effect — and the case still fails if the failure is not comparable to causing the result in the sense the statute intends. Equivalence is a substantive filter, not a summary of the earlier steps.
Practise Negligence and Omission
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