0.

1FAILURE TO ACT AS NEGLIGENT OMISSION/NONFEASANCE :( THE OMISSION

DOCTRINE): it is the general principle of tort law that there is no general duty to act for the benefit of
others. The rule is that the defendant must not harm his neighbor. (Misfeasance) not that the defendant is
required to save him from serious and immediate danger (non feasance). The rule was stated strictly by
Schiemann Lj in vilino v Chief constable of great Manchester[2002]1 WLR 218, when his lordship said
that “ under our law two persons can stand aside and watch a third jump to his death, there is no legal
duty to rescue. in Glaister v Appleby in western landmark town coucil [2009] EWCA CIV 1325;[2009]
WLR(D)359, a horse fair had been held in a small town for hundreds of years and it was held that a local
council authority was under no obligation to take steps to ensure adequate arrangements for the control of
the horses or that the horse traders had liability insurance against the risk of visitors to the fair being
injured by horses. The rationale for liability in failure to act was discussed in the case of Stovin v Wise
[1996]UKHL lord Hoffmann said 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. Smith v Littlewoods Organisation Ltd [1987] 1 All ER
710. The defendants bought a cinema to demolish and rebuild as a supermarket. It was then left empty
and vandals broke in and set fire to it, the fire spread and caused damage to adjoining property. There was
no liability since the defendant was not responsible for the acts of strangers.

The law of negligence imposes a duty of care on all persons in respect of their neighbor as decided in
Donoghue v Stevenson [1932]AC 562.However, a person will not be held liable for a failure to act unless
he or she had a preexisting relationship with the injured person. Failure to take affirmative steps to
prevent harm did not create liability .In all these events, it would be possible that someone’s intervention
could have reduced the risk. But failing to act does not render you liable. One should not be responsible
for the safety of others or have a duty to prevent harm to others or to render assistance to a person in
danger or distress. Therefore, in the absence of a special reason neither a private person nor a public
servant owes a duty of care to respond to an emergency by attempting a rescue it was stated in Capital
and Counties Plc v Hampshire CC [1997] QB 1004.

1.1 Omission: According the black’s law dictionary page 1238 by Henry Campbell Black, M. A
omission means the neglect to perform what the law requires as it was stated in People v. Hughey, 382
Ill. 136, 47 N.E. 2d 77, 80. Also Patricia Smith in her commentary on Feinberg’s work on the Failure to
Act Legal Theory, 11 (2005) pp237-250, Cambridge University Press defines an omission as a
nonperformance of a duty of care or a general obligation of custom to make something happen or prevent
it to happen in breach of reasonable expectation by a reasonable person that a duty ought to have been
performed and failure to perform would cause undue hardships. Therefore it is also a negative element of
conduct departing from normal behavior. However, there are pure omissions which may not be subject of
litigation for instance failing to respond to an alarm of a person in danger or failing to extinguish a fire.
Or where a by passer sees a stranger drowning and does not attempt a rescue, he or she cannot be liable
for nonfeasance because he had no preexisting relationship with the drowning person. An act of
nonfeasance can result in liability if (a) the actor owed a duty of care towards the injured person,(b) the
actor failed to act on that duty or the failure to act resulted in injury. Therefore failure taking affirmative
action would be actionable if only there is a special reason.

1.2 Liability in failure to act under common law: Where there is a common law duty to act imposed on
individual’s failure to act which results into injury may be actionable in negligence as it was in Barnett v
Chelsea & Kensington Hospital Management Committee [1968] 1 All ER 1068 0r [1968] 2 WLR 422
where a doctor failing to respond to a call to attend to patients who had been poisoned was held liable.In
the judgment, Nield J quoting Denning in Cassity v Ministry of Health [1951] 1 All ER 574, held that
medical doctors and workers have a duty to use reasonable care and skill to cure patients of their ailments.
If they are negligent in giving treatment, they are as liable for that negligence. The doctor on duty was
found to have been negligent in failing to offer the deceased treatment. His failure to offer treatment was
a negligent omission. But in such cases it is the duty of the patient to prove the omission and in this case
court found the plaintiff to have failed to prove the claim. In Clay v A.J Crump and Sons and Others
[1963] 1 All ER 687, the plaintiff a potter was injured when a wall that was supposed to be demolished
but was not, collapsed causing injury to the plaintiff. The builder’s workmen were within the class of
people to whom the architect owed a duty of care. Therefore by failing to inspect the wall or failing to see
the danger of the foundation which was visible and failing to take precaution or closer examination
amounted to an omission and breach of duty that made the defendants liable. Other situations of special
relationship which may render defendant liable in omission: Where there is dependence of the claimant
on the defendant, where there is a special relationship between defendant and third party based on control
by defendant.

1.3Under contract or implied duty:

(a)Where a defendant assumes responsibility to perform a service and fails to do so, he can be liable for
the loss suffered. in the case of Barret v Ministry of Defense[1955] 1 WLR 1217, in which the CA did
not find the defendant liable for allowing the plaintiff excessive consumption of alcohol but for their
negligence in failing to provide medical treatment after he had been taken to his room and their failure to
provide medical assistance rendered the defendant liable. In Stansbie v Troman 1948 2 KB 48 where the
defendant was a decorator and was advised to lock the building if he left. He forgot to lock and a thief
gained entrance. He was held liable because he was under a contractual obligation to ensure the building
was under lock. Liability may also arise where the defendant has made the plaintiff to rely on him for his
physical safety. In Mercer v South Eastern & Chatham Ry Co’s Managing Committee [1922] 2 KB
549, the defendant were held liable for failing to lock when trains are passing. Its practice of locking it
made the public to believe that it could be crossed whether locked or not.

0.2 SKILLFUL (PROFESSIONAL) DEFENDANTS IN NEGLIGENCE

Professional defendants are duty bound to exercise reasonable care and skill in advising their clients or in
performing their professional duties. Failure to exercise their skills may lead to liability as was held by
Justice Egonda Ntende in the case of Ernest Katende v AG 1992 KALR 413.It was held that the doctors
failed to exercise reasonable skill and care expected of surgeons carrying out surgery, which resulted into
the injury claimed by the plaintiff. Similarly in Bolam v Frien Hospital Management Committee [1957]
1 WLR 592. The defendants were negligent in failing to give the plaintiff a warning of the risks involved
in the treatment to enable him to have decided whether to take the risks or not;

However, it is also advisable to give a patient advice to understand the importance of a warning. in
Njireketa v Director of Medical Services[1950]EA 60, which case the plaintiff had declined to be
amputated but the doctor went ahead to do so in order to save his life. It was the only remedy available to
him and that is what underlies the discretional approach to medical practice in England. However,
compliance with general practice is not conclusive against negligence if the risks are obvious the
defendant may be held liable.

Therefore in medical practice, a mere belief that a particular technique is best is no defense without
reasonable grounds for such belief.
NKUMBA UNIVERTSITY

SCHOOL OF LAW AND INSTITUTE OF CRIMINAL JUSTICE

Course work

COURSE: Bachelor of Laws (LLB)

ACADEMIC YEAR: Year 2, Semester 2

COURSE UNIT: Tort 2

LECTURER: Mr.Abdul Nasser Kigozi

STUDENT NUMBER: 2200100635

STUDENTS INDEX NO.: 2022/AUG/LLB/B230747/DAY

DATE OF SUBMISSION: 26TH MARCH 2024.

QUESTION: summary of failure to act as negligent omission/nonfeasance :( the omission doctrine) and
skillful (professional) defendants in negligence