The collision resulted in the death of a man. Pitwood argued that he had no legal duty to the deceased, but Judge Wright held that he did have one arising from his contract of employment. While R. v. Pitwood is often regarded as a classic case of criminal liability for omission, Wright's actual words leave some room for doubt:
Thus the judge may actually have been seeing liability coming from the fact that Pitwood had left the level crossing gate open rather than the fact that he had not shut the level crossing gate. Thus did the liability come from an action or an inaction It would seem that the former occurred.
This was a case of gross negligence manslaughter, a crime that is a useful background to the whole subject of criminal liability for omission. In general such manslaughter requires the following elements:
Duty is imposed by common law statute. A breach is the failure to do something or doing something incorrectly according to the standard expected. The causal link is the fact that death has resulted from this failure with no intervening cause while gross negligence is the fact that the standard of performance or non-performance is so bad as to make it criminal.
How do Jon's acts fit into these elements First of all he had a duty to the clients of the gym because he is employed as an instructor. A gym has potentially very dangerous equipment within it - as what happens to Ian shows - and anyone employed by it has a duty of care towards the clients. There is a clear breach of duty in both 1) and 2). The breach in 1) is an example of negligence, while that in 2) moves well beyond even gross negligence into an intentional act that is designed to seriously hurt or even kill Ian. In this case the omission rises to the point of an act. He possesses both the mens rea and the actus reus for the crime of murder. If Ian had been outright killed by the weights falling onto his chest, Jon could have been charged with murder.
However, a difficult arises as to the fact that there is clearly an intervening event which actually leads to the death. While Jon was clearly expecting Ian to be injured, it was not reasonable for him to think that he would be allergic to antibiotics and that the doctor would not notice and give them to him. At the same time the but for principle is at work. In other words, but for the actions of Jon, Ian would have never been in the hospital in the first place. The intervening event and but for principles would create