No liability for an omission to act

If there is a moral obligation to assist people in difficulty or danger, why is there no legal obligation? Stovin v
Wise [1996] AC 923 involved an omission to act. A road verge on which a bank of earth obstructed drivers’ views
had been responsible for several accidents. Norfolk County Council, which was aware of the problem, had a power
(under the Highways Act 1980) to improve a road junction by removing the bank of earth which obstructed visibility
on the highway. A decision to remove the hazard was taken but the authority then failed to exercise its
statutory power to require the landowner to remove the obstruction. Wise negligently drove out from a side
road and claimed that the dangerous junction had significantly contributed to the accident. In applying the principle
that there is no liability where a breach consists of a pure omission and the defendant has not created the harm
suffered the House of Lords (by a bare majority) held that the local authority owed no duty of care to road users
for failure to exercise its powers to take positive steps to remove the bank. Lord Hoffmann (in the majority)
suggests that there are political, moral and economic reasons for this decision. He explained it in the following
way:
“ There are sound reasons why omissions require different treatment from positive conduct. It is one thing for the
law to say that a person who undertakes some activity shall take reasonable care not to cause damage to others. It is
another thing for the law to require that a person who is doing nothing in particular shall take steps to prevent
another from suffering harm from the acts of third parties (like Mrs. Wise) or natural causes……”

Lord Nicholls (in the minority) gave his views on the correct general approach to the imposition of liability for
omissions. He agreed that although there could often be uncertainty about categorising omissions, it was correct that
there should be a presumption against duty of care in these cases. He said: … the recognised legal position is that
the bystander does not owe the drowning child or the heedless pedestrian a duty to take steps to save him.
Something more is required than being a bystander. There must be some additional reason why it is fair and
reasonable that one person should be regarded as his brother’s keeper and have legal obligations in that regard.
When this additional reason exists, there is said to be sufficient proximity. That is the customary label.

When does English law impose liability for an omission to act?

The general position is that there is no duty of care owed to prevent third parties from causing damage. However,
there appear to be certain exceptions to this rule in cases which have extraordinary features. There are four particular
situations where liability for the acts of third parties can arise. These can be summarized as follows:

1. Special relationship between the defendant and the claimant:

The first situation is where the defendant has assumed responsibility to look after the claimant’s property. In
Stansbie v Troman the plaintiff had employed a decorator who went out and left the premises unsecured. The
decorator was held liable for losses caused by a thief who entered the premises and stole some of the
plaintiff’s property. The contractula relationship between the plaintiff and the decorator justified the
imposition of liability- the decorator has agreed to look after the premises.

In Kent v Griffiths, the claimant suffered an asthma attack, and her doctor called an ambulance which took 40
minutes to arrive. Whilst waiting for the ambulance, she suffered a respiratory arrest, which would probably
have been prevented if the ambulance had arrived within a reasonable time. Lord Woolf MR, giving the
judgment of the court, stated that the acceptance of the 999 call established a duty of care. Although cases might
arise where policy considerations could exclude a duty of care -such as where the ambulance service had
properly exercised its discretion to deal with a more pressing emergency before attending the claimant, or where
it had made a choice about the allocation of resources -this was not such a case.

In Capital & Counties Plc v Hampshire CC the liability of the fire brigade was examined by the Court of
Appeal. The case was consolidated with three other appeals in which it was alleged that the fire brigade had
been negligent in tackling fires. In the first two cases (Capital & Counties and Digital Equipment), the alleged
negligence consisted of ordering that a sprinkler system, which had been operating at the location of the fire, be
turned off. In the third case (John Munro), it was alleged that, after fighting a fire on adjacent premises, the fire
brigade left the scene without ensuring that the fire was properly extinguished, with the result that it reignited,
damaging the plaintiff's premises. In the fourth case (Church of Jesus Christ of Latter-Day Saints), it was
alleged that the fire brigade had negligently failed to take proper steps to ensure that an adequate supply of
water was available at the scene of the fire. The plaintiffs faced two main problems. First, they faced policy
objections for example that making the fire brigade liable for negligence in the course of its duties would lead to
defensive practices, diverting resources away from the task of fighting fires. Secondly, they faced the reluctance
of the courts to find that a sufficient degree of proximity exists where the case is one of "general reliance" by
the public on services provided by a public body. Stuart-Smith LJ, giving the judgment of the Court of Appeal,
held that the fire brigade's attendance at the scene of a fire did not, of itself, give rise to the requisite degree of
proximity. In the court's view, this followed from the fact that the fire brigade was under no duty to attend the
fire in the first place. As Stuart-Smith LJ put it:

“….the fire brigade are not under a common law duty to answer the call for help, and are not under a duty to
take care to do so. If, therefore they fail to turn up in time, because they have carelessly misunderstood the
message, get lost on the way or run into a tree, they are not liable….”

Examples of special relationships are duties are owed by a parent to a child, by an occupier of premises to a
visitor, by an employer to employees in the workplace. We can see generally: The Ogopogo [1971] 2 Lloyd’s
Rep 410 (Canadian case) where the defendant had invited the claimant to be a guest on his yacht. The claimant
accidentally fell overboard. Did the relationship of host and guest carry a legal obligation to assist? The
defendant was not a mere bystander and was held to have a duty to take reasonable care to save the claimant.

In Phelps v Hillingdon LBC [2001] 2 AC 619 the House of Lords held that an educational psychologist,
employed by the local authority, was under a duty of care to Miss Phelps for failing to diagnose her dyslexia.
The decision was based on the fact that an educational psychologist is specifically called in to advise in relation
to the assessment and future provision for a specific child, and it is clear that parents and teachers will follow
that advice. Educational psychologists assume a duty of care to pupils.

A further example of assumption of a duty of care can be seen in Barrett v Ministry of Defence [1995] 3 All ER
87. A sufficiently close proximity between the defendant’s conduct and the claimant’s harm created an
assumption of responsibility for the claimant’s wellbeing. Here, there had been a pattern of excessive drinking
among soldiers at a remote Navy base, where drinks were very cheap. One night, after a bout of heavy drinking,
a soldier became unconscious. The duty officer arranged for him to be taken to his room where he was left
unchecked. He later died due to choking on his own vomit and his widow brought an action in negligence
against the Ministry of Defence. The Navy was not liable for preventing the deceased from excessive drinking
or for anything that happened prior to his collapse. However, when he collapsed the defendant assumed
responsibility for him and the measures taken fell short of the standard reasonably to be expected. There must
be proximity in the sense of a measure of control over, and responsibility for, the potentially dangerous
situation.
 However, in Sutradhar v NERC the House of Lords unanimously held the defendant could not be liable for
what they did not do. There was no relationship of proximity between the claimants and the defendant that
would give rise to a positive duty to test for arsenic in the water. In this case, the defendants were a UK
government funded agency, established under Royal Charter, whose purpose was to undertake research,
disseminate knowledge, and provide advice relating to the earth sciences and ecology. As part of a project to
assist development in Bangladesh, they undertook a hydrological survey in that country which aimed to provide
an understanding of how water might be used for irrigation and fish farming. They therefore conducted a
number of tests on samples of groundwater to identify the presence of harmful chemicals. Unfortunately, they
did not test the water for the presence of arsenic, having no reason to believe that arsenic was likely to be
present. The claimant was one of 700 Bangladeshi residents who had suffered from arsenical poisoning by
drinking contaminated water from the sources which had been tested. He argued that the defendants were
negligent in having issued a report which gave the impression that the water was safe to drink. In dismissing his
claim, the House of Lords pointed to the lack of proximity between the claimant and the defendants, and noted
that the purpose of the report had not been to protect the claimant from harm. Also in this case, the defendants
had had no control whatsoever over whether and how water was supplied in Bangladesh.

2. Special relationship between the defendant and the third party:

In Home Office v Dorset Yacht, the defendants were liable because they had a relationship of control over the
third parties (the young male offenders) who had caused the damage. In this case, seven boys detained in a
borstal – a type of youth detention centre, were working on an island under the supervision of three officers.
The borstal boys escaped from the island at night with the plaintiffs’ yacht and damaged it. The plaintiffs
brought an action for damages against the Home Office which was in control of the bostrals on grounds that the
officers on the island were negligent as they failed to exercise control and supervision over the boys. The
Queen’s Bench held that the Home Office owed duty of care to the plaintiffs, which was capable of giving rise
to liability in damages. The Court of Appeal dismissed the appeal by the Home Office.

3. Creating a source of danger which is “sparked off” by a third party :

The defendant may be liable for creating a dangerous situation which is subsequently “ sparked off” by the
foreseeable actions of third parties. The principle may apply, for example, to a defendant who keeps an
unsecured shed full of fireworks that are subsequently ignited by mischievous children. The principle was
applied in Haynes v Harwood, where the defendants left their horses unattended in the street and a boy threw a
stone at them and caused them to bolt. The defendants were liable when the plaintiff was injured trying to save
people from being injured by the horses.

4. Failing to take reasonable steps to abate a danger created by a third party :

Where the defendant knows, or reasonably ought to know, that third parties are creating a danger on his or her
premises, the defendant is under a duty to take reasonable steps to abate that danger. Thus, in Clark Fixing Ltd v
Dudley MBC, where known tresspassers on a vacant development site startred a fire which burned down
neighbouring property, the Court of Appeal held that the defendant council liable for failing to remove
combustible material from the site, so as to prevent the spread of fire.

5. Natural cause:

The list is non-exhaustive. Duty of care can arise by considering various circumstances in the light of policy
issues. A defendant may be liable to remove a source of danger of which they are aware. In Goldman v
Hargrave [1967] 1 AC 645, the defendant’s redgum tree, 100 feet high, was struck by lightning and caught fire.
The defendant caused the land around the burning tree to be cleared and the tree was then cut down. He did not
extinguish the fire after doing this in the belief that the fire would eventually burn itself out. However, it kept
smouldering and subsequently the wind increased and the fire spread to his neighbour’s land. The defendant
was negligent for failing to take adequate precautions to extinguish the fire in the face of foreseeable risk. (We
should notice that in such a case the defendant may not have to show the care of a reasonable person, but only
have to do what he is capable of, given his health and resources.) Likewise, it would seem that a motorist whose
car breaks down without any fault may have to move it or take steps to warn others of the danger.