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Omissions: and Third Party Liability

1. Under common law, there is generally no liability for omissions or failures to act, with a few exceptions. 2. More recently, courts have clarified that the issue is better framed as making a situation worse versus failing to make it better. Unless a duty was created or responsibility was assumed, there is no duty to make things better. 3. Liability may exist for third party acts if the acts were highly foreseeable and likely to occur due to the defendant's negligence. However, liability is not usually found if there is an intervening act breaking the chain of causation.

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21 views11 pages

Omissions: and Third Party Liability

1. Under common law, there is generally no liability for omissions or failures to act, with a few exceptions. 2. More recently, courts have clarified that the issue is better framed as making a situation worse versus failing to make it better. Unless a duty was created or responsibility was assumed, there is no duty to make things better. 3. Liability may exist for third party acts if the acts were highly foreseeable and likely to occur due to the defendant's negligence. However, liability is not usually found if there is an intervening act breaking the chain of causation.

Uploaded by

Andrew Asante
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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OMISSIONS

And Third Party Liability


I. No liability for omissions at common law,
with few exceptions
 
A. Stovin v Wise, [1996] AC 923 makes this clear.
 
1. As to private parties, no disagreement from dissenters.

2. High bar set by majority for finding common law duty to act
for public bodies failing to exercise discretion in use of
statutory powers.

3. Note that breach of statutory duty not at issue here because


land did not belong to local authority
Recent Clarification

■ Poole BC v GN, [2019] UKSC 25, clarifies issue. Because not always
easy to distinguish acts and omissions, better to think in terms of making
things worse versus failing to make them better.

■ In general, no duty to make things better unless D created danger or


assumed responsibility to C.

■ Clarifies that many earlier decisions that appeared to be policy based


were really instances of general rule against liability for omissions.
B. Capital and Counties plc v. Hampshire CC, [1997] 2 All
ER 865 (CA) illustrates issues well.
 
1. No recovery where fire brigades failed to extinguish fire,
including failure to provide working hydrants; no proximity.

2. Recovery allowed where D turned off sprinklers.


C. Compare Kent v Griffiths, [2001] QB 36, CA.

1. Liability for delayed ambulance arrival once D accepted call.

2. Distinguished C&C because fire brigade owes no duty to property owners,


while ambulances are like doctors and assume responsibility to patients.
Cassidy v Ministry of Health, [1951] 2 KB 343 (CA).

3. Also, distinction based on proximity: fire brigade/police cannot be held liable


to the public at large, whereas ambulance was called for a specific individual

4. Could also distinguish based on possible reliance (if doctor knew ambulance
would be delayed, would have arranged other transport), and bodily injury vs
property damage.
D. Costello v Chief Constable, [1999] 1 All ER 550 (CA): D liable for not
stopping attack on D where assumed responsibility to protect C.
 
E. Barrett v Ministry of Defence, [1995] 1 WLR 1217, CA
 
1. D not liable for failure to prevent victim from getting drunk.
2. However, once D assumed responsibility for C’s welfare by taking him
to his room, became liable for failure to take adequate care of him.
F. Goldman v Hargrave, [1967] 1 AC 645, PC
 
1. D liable for not extinguishing fire on his land, which
spread to C’s land, even though D did not start the fire.

2. Seems to be based on idea that by owning land you


undertake certain minimum responsibilities to
neighbours in nuisance.

3. Unusually, extent of duty may be limited by D’s


resources.
G. If you create the danger, even innocently, you may have a duty
to rescue.
 
1. Only English cases are criminal: R v Miller, [1983] 2 AC 161, HL: D
guilty of arson for ignoring fire he started, and R v Evans, [2009]
EWCA Crim 650 (D who gave victim drugs on which she overdosed
guilty of manslaughter for not taking to hospital).

2. Lord Goff suggests in Smith v Littlewoods, below, that English law


would follow this in tort too.
 
Mitchell v Glasgow City Council, [2009] UKHL 11
 
1. D not liable for tenant who killed C’s decedent following C’s
complaints about him. Rejects finding that D had duty to warn C
that killer might come after him after D threatened to evict him.
2. Seems not to matter whether public or private landlord.
3. No duty of care absent assumption of responsibility, creation of
danger, or control over danger. Foreseeability not enough.
4. X v London Borough of Hounslow, [2009] EWCA Civ 286: D
not liable for failing to move vulnerable Cs to different flat, as a
result of which they were assaulted at home, as never assumed
responsibility. Good discussion of all of the above cases.
5. But contrast Selwood v Durham County Council, [2012] EWCA
Civ 979 (C was D’s employee, so had duty to warn of threats.
Liability for acts of third-parties

  Home Office v Dorset Yacht Co., [1970] AC 1004 (HL)


 
1. D liable for damage to neighbours’ yachts committed by borstal
boys who escaped due to D’s negligence.

2. Must be highly foreseeable (very likely to happen) if act of third-


parties.
Novus actus interveniens cases may be relevant here.

1. Reeves v Commisioner of Police, [2000] 1 AC 360 (HL) (D liable for


not stopping C from committing suicide; clear suicide risk and placing
C in custody involves assumption of responsibility).

2. Contrast Orange v CC West Yorkshire Police, [2002] QB 347, CA (no


liability where no reason to think suicidal).

3. Topp v London County Buses, [1993] 3 All ER 448, CA: D not liable
for negligently leaving bus with keys, which joyriders stole and ran
over C, killing her.

4. Contrast Haynes v Harwood, [1935] 1 KB 146: D liable for leaving


horse unattended when C injured trying to catch it. Arguably
distinction is that humans have free will and horses do not.

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