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LAW OF TORT: LIABILITY FOR OMISSION IN LAW

LAW OF TORT: LIABILITY FOR OMISSION IN LAW


In Donoghue v Stevenson (1932), Lord Atkin referred to
‘acts or omissions which you can reasonably foresee would be likely to injure
your neighbour’. The reference to omissions here was to an omission in the
course of positive conduct, for example, if a person is driving a car and omits
to apply the brakes. At this time the conventional view was that there was no
liability in negligence for a simple failure to act for another person’s
benefit. Example X has fallen into a river and is drowning. X calls out for
help. Y is walking along the river bank and hears X. There is a lifebelt
provided on the bank but Y walks past and does nothing. In these circumstances
there is no liability on Y as he does not owe X a duty of care, unless there is
a relationship between X and Y which gives rise to a duty to act positively.
What would be the position if Y embarked on a rescue attempt and then withdrew,
making X’s position worse? By embarking on a positive act, does Y undertake a
duty? Would it be strange to say that the person who does nothing has no
liability, whereas the Good Samaritan could be sued?





The principles on liability for omissions were laid down
by the House of Lords. Smith v Littlewoods Organisation Ltd [1987] 1 All ER 710
L bought a cinema in Dunfermline with the intention of demolishing it and
building a supermarket. The cinema was empty and a fire was started by unknown
children. The fire spread to the appellant’s land and damaged his buildings.
Fires had previously been started in the building but this fact was not known
to L. The appellant’s action in negligence against L failed. Lord Goff stated
that there was a general principle that no duty existed to prevent persons
deliberately inflicting damage on another person. There were four exceptions to
this principle. 1 Where there was a special relationship between the parties
such as a contractual relationship. An example of this arose in Stansbie v
Troman [1948] 1 All ER 599. A decorator working on the plaintiff’s premises was
told to lock up if he went out. He did not and a thief entered the house and
stole money. The decorator was held liable for the loss. 2 Where there was a
special relationship between the defendant and the third party. In Home Office
v Dorset Yacht Co Ltd [1970] 2 All ER 294, boys escaped from a borstal due to
the negligence of the appellant’s employees. The boys caused damage to the
respondent’s property. The appellants were responsible for controlling the
third party (the boys) and were held to owe a duty of care to the respondents.
3 Where the defendant negligently causes or permits a source of danger to be
created, which is then interfered with by third parties. In Haynes v Harwood
[1935] 1 KB 146 a horse was left unattended in a busy street. Children threw
stones at the horse and it bolted. A policeman was injured in attempting to
stop the horse. The defendant was held to owe a duty of care to the policeman.
4 Where the defendant knew or had means of knowledge
that a third party was creating a danger on his property and failed to take
reasonable steps to abate it. Examples of this kind of liability usually arise
in nuisance. See, for example, Goldman v Hargrave [1966] 2 All ER 989. There
was no liability under this head in the present case as the defendants had no means
of knowing that the building represented a fire hazard. It should be pointed
out that Lords Brandon, Griffiths and Mackay decided the case on its own facts.
They did not rule out liability on the basis of any general rule of no
liability. It is therefore possible that liability could be developed from
these speeches. Lord Griffiths: The fire in this case was caused by the
criminal activity of third parties on Littlewoods’ premises. I do not say that
there will never be circumstances in which the law will require an occupier of
premises to take special precautions against such a contingency but they would
surely have to be extreme indeed. It is common ground that only a 24-hour guard
on these premises would have been likely to prevent this fire, and even that
cannot be certain, such is the determination and ingenuity of young vandals.
There was nothing of an inherently dangerous nature stored in the premises, nor
can I regard an empty cinema stripped of its equipment as likely to be any more
alluring to vandals than any other recently vacated premises in the centre of a
town. No message was received by Littlewoods from the local police, fire
brigade or any neighbour that vandals were creating any danger on the premises.
In short, so far as Littlewoods knew, there was nothing significantly different
about these empty premises from the tens of thousands of such premises up and
down the country. People do not mount 24-hour guards on empty properties and
the law would impose an intolerable burden if it required them to do so save in
the most exceptional circumstances. I find no such exceptional circumstances in
this case . . . I doubt myself if any search will reveal a touchstone that can
be applied as a universal test to decide when an occupier is to be held liable
for a danger created on his property by the act of a trespasser for whom he is
not responsible. I agree that mere foreseeability of damage is certainly not a
sufficient basis to found liability. But with this warning I doubt that more
can be done than to leave it to the good sense of the judges to apply realistic
standards in conformity with generally accepted patterns of behaviour to
determine whether in the particular circumstances of a given case there has
been a breach of duty sounding in negligence. What if the loss to the claimant
was pecuniary rather than physical? This is the case where a regulatory body
(frequently established by statute) fails adequately to supervise the work of a
third party. This was the situation in the following case. Yuen Kun-yeu v
Attorney-General of Hong Kong [1987] 2 All ER 705 The Commissioner regulated
deposit-taking businesses in Hong Kong and had discretionary powers to refuse
to register or to revoke the registration of an unfit company. The plaintiff
had deposited money with a registered deposit-taking company which went into
liquidation and alleged that the Commissioner should never have registered or
should have revoked the company’s licence. The Privy Council held that no duty
of care was owed by the Commissioner to the plaintiff. No such statutory duty
was owed and a common law duty would not be imposed. The Commissioner’s duty
was towards the general public, but there was no special responsibility towards
individual members of the public. A duty could not be established on the basis
that the plaintiff had relied on the company’s registration as this was neither
reasonable nor justifiable.
This approach has been followed consistently by the
courts in subsequent cases involving regulatory agencies, but an interesting
perspective was added by the House of Lords decision in White v Jones. White v
Jones [1995] 1 All ER 691 The facts and decision in this case are analysed in
Chapter 5. The case involved an omission to act on the part of the defendant
solicitors in that they failed to amend the will in accordance with the
testator’s wishes. Had the issue been between the testator (client) and the
solicitor, there would have been no problem as there would have been an
omission in the course of a positive undertaking to the client to perform a
particular task. In the context of liability to a third party (the beneficiary)
there was a problem as to whether the solicitor could be liable for an omission
to act. In the absence of an undertaking by the solicitor to the third party,
it would be expected that there would be no duty owed. However, Lord
Browne-Wilkinson (with whose speech Lord Nolan agreed) thought that there was,
even in the absence of an undertaking to the beneficiaries, a sufficient
undertaking, in the sense of an assumption of responsibility for the task of
amending the will, to found a duty of care. The principle of assumption of
responsibility can also be seen in Barrett v Ministry of Defence [1995] 3 All
ER 86. Here the navy were held to owe a duty of care in respect of the death of
a sailor who had drunk himself unconscious. The duty was not to prevent him
drinking to that stage but once an officer had arranged for him to be taken to
his room, there had been an assumption of responsibility for his welfare. (See
also Jebson v Ministry of Defence [2000] 1 WLR 2055.) The law on omissions is
complicated by the fact that there are usually other policy issues in omissions
cases. These may arise in cases involving statutory authorities such as the
following one. Stovin v Wise [1996] 3 All ER 801 A bank of earth on British
Rail property made it difficult for drivers turning right at a junction to see
traffic approaching. A number of accidents had occurred at this spot
previously. W drove her car into S’s motor cycle. W’s insurer paid off S and
sought a contribution from the highway authority which had failed to implement
its earlier decision to remove the mound of earth, which it had the power to
do. The House of Lords (by a majority) found that the highway authority was not
liable. (See also Gorringe v Calderdale Metropolitan Borough Council [2004] 2
All ER 326.)
LIABILITY
FOR THE ACTS OF THIRD PARTIES
This subject is closely related to the question of
liability for omissions. The question is: when will A be liable to B for the
negligent act of C? Any question of A’s liability will normally concern his
omission to exercise control over C. This raises the question of what area of
negligence law should be used to determine these cases. Lord Goff’s approach in
Smith v Littlewoods is to deny a general duty of care. Lord Mackay and the
majority of the House of Lords concentrate on fault (breach of duty) as the
determining factor. The court looks at the blameworthiness of the defendant’s
conduct in creating the risk. A further possibility is to argue that the damage
is too remote, perhaps because of the act of the third party breaking the chain
of causation. (See Topp, below.) Carmarthenshire County Council v Lewis [1955]
1 All ER 565 A lorry driver was killed when he swerved to avoid a four-year-old
child. The child had been left in a classroom at school while the teacher
attended to another child. The child had wandered out on to the road and caused
the accident. The defendants were held liable on the basis of their vicarious liability
for the teacher’s negligence. Duty was established on the basis of a reasonably
foreseeable plaintiff. (See also Home Office v Dorset Yacht Co above.) What is
noticeable in the decision is the absence of discussion on proximity and
policy. In modern terms it is perhaps best regarded as a case based on the
school’s assumption of responsibility for controlling the child. P Perl
(Exporters) Ltd v Camden London Borough Council [1984] QB 342 The defendant
council owned adjoining premises. One (142) was let to the plaintiff and the
other (144) was divided into flats. There was no lock on the door of 144 and
thieves entered and knocked a hole in the wall into 142. Property belonging to
the plaintiff was stolen. The Court of Appeal held that the defendants were not
liable as mere foreseeability of harm was not sufficient to establish a duty. A
policy issue which exists in this area and which may partially explain the
courts’ reluctance to impose duties is insurance. In the cases of fire damage,
the claimant will normally have fire insurance and so will not be out of
pocket. But in inner-city areas it may be difficult to obtain fire insurance.
Topp v London Country Buses (South West) Ltd [1993] 3 All ER 448 The defendant
bus company ran minibus services. A bus was left empty, with the keys in the
ignition, waiting for a relief driver who did not turn up. This was reported to
the company, which did nothing. The bus was stolen by joyriders who ran over
and killed the plaintiff’s wife. The joyriders were not traced and the
plaintiff sued the bus company. The Court of Appeal found that no duty of care
arose. The decision was based on Lord Goff’s judgment in Smith v Littlewoods.
The voluntary act of another which is independent of the defendant’s fault is a
novus actus interveniens breaking the chain of causation. There was no
‘special’ risk giving rise to sufficient proximity. It is certainly arguable
that the law was not applied correctly in this case as it is difficult to see
how the joyriders’ act was independent of the defendants’ fault. The trial
judge had found that the defendants had been careless. The answer must lie in
what Lord Goff means by independent. (See, for example, the facts and decision
in Smith v Littlewoods.) This could mean ‘not connected with’ or it could have
a meaning similar to that in vicarious liability.
LIABILITY
OF PUBLIC AUTHORITIES
 Introduction One
theme which can be seen to run through many of the cases discussed in this
section is that the defendant is a public authority. Negligence actions
involving public authorities are particularly complex. There are four reasons
for this:
 1 The loss
involved is generally pure economic loss, which poses particular problems for
tort law.
2 The breach of duty in question is frequently an
omission to act which also creates particular difficulties.
3 The breach may well take place against the background
of statutory powers and raise questions of whether tort law has a role or
whether public law remedies are appropriate.
4 As the action is against a public authority, the Human
Rights Act 1998 may well have a role to play. The common law has not provided a
definition of ‘public authority’ but the broad definition in the Human Rights
Act 1998 s 6(3) states that ‘it includes a court or tribunal and any person
certain of whose functions are functions of a public nature’
It would appear that the Act may have an effect on the
tortious liability of public authorities in two respects. First, it may bolster
an existing right of action against a public authority. An example of this
would be the immunity debate which is taking place. Second, it may have the
effect of creating new causes of action in tort as the Act provides its own
independent basis for an action against a public authority. Such cases need to
be heard in accordance with Strasbourg jurisprudence, such as the doctrine of
proportionality. These ‘constitutional torts’ will be established where a
claimant successfully alleges that a public authority has violated one of the
constitutional rights the claimant enjoys as a result of the Act. (See Van
Colle v Chief Constable of the Hertfordshire Police [2007] 3 All ER 122.) In
terms of negligence actions, the significance of the defendant being a public
authority has been the allocation of resources and whether some of the scarce
resources allocated to public authorities should be diverted by private law
into compensating individuals for a public authority’s negligence. It should be
remembered that many of these actions take place against a background of statute
law. A claimant may invoke a claim for the tort of breach of statutory duty.
The rules for this tort are separate and set out elsewhere.  Alternatively, the claimant will argue that a
common law duty of care can be created against the background of the provisions
of the statute. These claims are argued on the usual rules of negligence. An
important distinction between the two claims was made by Lord Steyn in Gorringe
v Calderdale Metropolitan Borough Council [2004] 2 All ER 326: [I]n a case
founded on breach of statutory duty the central question is whether from the
provisions and structure of the statute an intention can be gathered to create
a private law remedy? In contradistinction in a case framed in negligence,
against the background of a statutory duty or power, a basic question is
whether the statute excludes a private law remedy? An assimilation of the two
inquiries will sometimes produce wrong results.

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