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In Donoghue v Stevenson , 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 , 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.
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?
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