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Negligent omissions

Previous: Mental Injury

In Donoghue v Stevenson [1932], Lord Atkin referenced two nouns, ‘acts’ and ‘ommissions’. These can be compared to ‘misfeasance’ and ‘non-feasance’ respectively. The former means an act (or positive act – you actually do something) which causes harm. The latter means a failure to act which causes harm. These latter cases are called omissions cases. To sum up the concept, we can refer back to the case of Dorset Yacht co v Home Office [1970], which we referred to when talking about proximity. In this case, the Home Office didn’t actively attempt to damage the claimant’s yacht. Rather, they failed to act appropriately to prevent the escape of the prisoners, who then subsequently damaged the yacht. This failure to act is an omission. In English law, you are not required to be a good samaritan, you are welcome to be a priest or a levite instead.

Policy Issues

Although usually not so, there are a number of instances in which English law may impose liability in omissions cases, usually when some reliance has been induced, when control has been assumed or when there is a special relationship between two parties, which confers obligations. However, there are a number of issues to consider when imposing omission liability:

  • Duties may restrain individual autonomy
  • Duties may undermine contract law
  • Activities should usually fund themselves
  • Duties may create ‘why pick on me issues’ – if there are a number of people who could have intervened, why did you single me out?
  • Duties may create a wide and burdensome area of responsibility

We shall go through some of the areas where omissions liability can be imposed. You should note that there is a lot of crossover between this section and that of public bodies, as claims against public bodies are usually due to omissions; failures to act.

Induced reliance

One way to claim omissions liability is to prove that you were relying on another party to act. Stovin v Wise [1996] is perhaps the most well referenced omissions case. Although the claim failed, it was ruled that there is a duty to act if one had undertaken to do so and induced reliance in the claimant. Successful claims include that of Watson v British Boxing Board of Control [2001] (ringside assistance required) and Chandler v Cape Plc [2012] (asbestosis). Banque Keyser Ullmann v Skandia [1991] failed though.

Occupation or control over property

A common cause of omissions cases involves a failure to prevent danger caused by property which the defendant has control or occupation of. A simple example is that of Stansbie v Troman [1948], where a decorator left a house unattended after the owners went out for a while. He was liable to thieves who entered while the decorator was absent. Although now covered by the Occupiers’ Liability Act 1984, the case of Herrington v British Railways Board [1972] ruled that a train operator did not owe a duty to prevent electrocution of trespassers on their tracks. Though a humanitarian attitude to trespassers was still expected. Reasonableness is also a factor in omissions cases: in Leakey v National Trust [1980], the defendant’s artificial bank encountered a landslide into the claimant’s property. This claim was said to be reasonable. In Wandsworth London Borough Council v Railtrak Plc [2002], it was reasonable to allow liability to the defendant for not pigeon-proofing their rail bridge.

Duty to adjoining neighbours

You have a duty to your adjoining neighbours if you occupy a house. The Privy Council decision in Goldman v Hargrave [1967] showed that liability can be allowed when a neighbour intends to allow a tree fire started by lightning to burn out of its own accord, but the fire spreads to the claimant’s adjoining property. Here, 3 conditions were created for successful claims in such situations:

  • The defendant’s knowledge of the danger
  • Foreseeability of the consequence
  • The defendant’s capacity to abate the consequence – they must be able to deal with the danger

Smith v Littlewoods Organisation Ltd [1987] is a famous case on this subject. Littlewoods purchased a derelict cinema where vandals started a fire. The fire damaged the adjoining property of Smith. There was no liability as Littlewoods did not know that vandals used the cinema, nor was an empty cinema considered to be dangerous. Liability would exist where it could be reasonably expected that a danger would be sparked off. Such a danger created liability in Haynes v Harwood [1935], where a horse owner was liable to a police officer who attempted to save a child from a horse which the owner had left unattended. There was no duty in Topp v London Country Bus [1993] for leaving a bus unattended, where thieves subsequently drove negligently, injuring the claimant.

Assuming responsibility for others

When responsibility is taken for the welfare of someone else, obligations are conferred. This is independent of the concept of reliance. A number of cases show this type of situation. Farwell v Keaton [1976, New Zealand] is a simple demonstration; responsibility was assumed; the situation was potentially made worse and the claimant died. More often that not though, the cases involve an implied, rather than explicit assumption, assumption of liability. In A v Roman Catholic Archdiocese of Wellington [2008, New Zealand], it was ruled that parents do not assume responsibility to maximise a child’s potential, and in Horsley v MacLaren [1972], a duty was not owed by a boat owner to an overboard passenger and their rescuer, though the possibility of an obliged rescuer was shown to exist. In Agar v Hyde [2003], a rugby board was not liable for injuries established during a game. However, a referee of a rugby match was liable for a player’s injury in Vowles v Evans [2003]; apparently the referee is in control of the game.

Responsibility to intoxicated patrons

There is a debate as to the extent of liability of vendors of alcohol to their patrons. In Barret v MoD [1995], a drunk serviceman collapsed in a bar. He was taken to his bed and subsequently died. The MoD were found to be partially responsible for potentially making Barrett’s condition worse. In Cole v South Tweed Heads Rugby League FC [1994, Australia], the bar had no liability to injuries sustained by a patron on their way home Similarly, in CAL No. 14 v Motor Accidents Insurance Bureau [2009, Australia], giving an intoxicated person their keys back on demand did not assume liability for that person killing himself on his way home. However, liability can be found in such situations. Where the vendor is commercial, the case of Stewart v Pettie [1995, Canada] ruled that there is a responsibility to ensure patrons’ safety. However, where the situation is a social one, the host is not liable to damage/injury caused by intoxicated guests, as was seen in Childs v Desormeaux [2006, Canada]. This is due the lack of a social host’s ability to monitor consumption, and on the understanding that the host does not provide alcohol knowing that the guest will then drive away.

Responsible gambling

An interesting case is that of Calvert v William Hill Credit Ltd [2009]. There was apparently no liability for a gambling company who failed to implement an order to cancel a gambler’s telephone gambling account, who subsequently lost significant sums of money. This was as the gambler wasn’t banned from gambling entirely.

Responsible Police

There are many omissions cases involving the police. We start with the exception in Reeves v Commissioner of Police [1999], where the police were liable for not taking responsibility to protect a suicidal prisoner from committing suicide. Following the same reasoning as in Dorset Yacht v Home Office, in NSW v Godfrey [2004, New Zealand], there was no liability of the police towards a newsagent who suffered mental injury caused by an escaped prisoner. We shall discuss the police more in the public bodies section.

Assuming responsibility for a task

Responsibility does not just have to be towards people or property, a task’s responsibility can also be assumed. Henderson v Merrett Syndicates [1995]  and White v Jones [1995] illustrate this where duties were owed to advise others and to change a will in good time respectively. Responsibility must actually be assumed though. In Brownie Wills v Shrimpton [1998], directors could not sue a solicitor for advice given on the part of a bank as there was no assumption of responsibility (See negligent misstatements for more on this). Responsibility and therefore liability was also assumed for a task when the police comically put cones on only one side of a bridge which had been washed away by a flood, but not the other, and someone drove into the river from the other side in Gibson v Orr [1999].

Conclusion

Unfortunately, this section and the next consist of long lists of case which need learning; though most at least have a significant value of interest. At least to me they do.

Next: Public Bodies

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