LECTURE 10

-OMISSIONS AND
THIRD PARTIES
Ms Gallop
INTRODUCTION
 Generally English law does not impose liability
for omissions. Thus the duty to intervene to
assist another person who finds themselves in
trouble is very limited in scope.
 Thus if a person walks past a baby drowning in
a puddle he is under no tortuous obligations
to save that child (though he may be under a
moral obligation)
 A doctor, similarly, who comes across an
accident victim lying injured in the road has
no duty to render assistance
INTRODUCTION
 A number of reasons have been given for this
decision
 First and foremost is the overburdening
nature of such a duty as it would be unclear
who was bound and when
 Secondly it would be unfair to single out one
person in a crowd who failed to act, when
countless people may have failed to do so in
a crowd
STOVIN V WISE
 The lack of liability for an omission to act
was confirmed in the case of Stovin v Wise.
 In this case D (the local authority) failed to
order the removal a railway bank on railway
land adjacent to the road.  It had the power
order the removal to improve road safety; it
restricted visibility at the junction. C a
motorcyclist was injured by a car that
emerged from a side road. 
STOVIN V WISE
 Held: D had no duty of care to C in respect
of this hazard. Even a statutory duty does
not automatically give a private right of
action. 
 A statutory power does not create a common
law duty to be exercised.  Unless it would be
irrational not to exercise that power. 
 There must be exceptional grounds for
holding that the policy of the statute
requires compensation to be paid to persons
who suffer loss because it is not exercised.
STOVIN V WISE AND AFTER
 In the case of Sutradhar v National
Environment Research Council the House of
Lords confirmed in the strongest terms that
there could not be liability for omissions. In
this case the British Government
commissioned a geological survey to test the
performance of deep irrigation wells in
Bangladesh. The test was for a number of
different toxins but not for arsenic. Although
it was not considered a risk there was in fact
a huge arsenic problem in Bangladesh.
STOVIN V WISE AND AFTER
 The claimant developed symptoms consistent
with arsenic poisoning and claimed damages
as he alleged that the Government had
breach it’s positive duty to test for arsenic.
The House of Lords struck out the claim.
 The fact that one has specialist knowledge
does not mean that there is a duty to solve
all the World’s problems
THE DISTINCTION BETWEEN AN
ACT AND AN OMISSIONS

 As noted by Lord Nicholls in the case of

Stovin v Wise some examples of the
distinction between acts and omissions are
not clear cut.
 Generally it is understood in the context of
tort an act is an understood to be when the
defendant does something to make the
situation worse, while an omission is simply
the failure to make a situation better.
A DUTY TO RESCUE?
 The English law recognises no duty to rescue –
unless there are particularly special circumstances.
 However arguably there is a duty where a person
undertakes a rescue and exposes the person to a
new or increased danger that would not have
arisen otherwise.
 However some states impose an affirmative duty to
rescue. The French Criminal Code imposes criminal
liability on any person who “wilfully refrains from
helping and assisting a person in danger, when he
could have done so... Without risk to himself or a
third party”
A DUTY TO RESCUE?

 When the danger materialises and injury

results the breach of this duty is actionable
under in damages under the criminal civil
code.
 The common law failure to recognise a duty
of rescue has been criticised by a number of
commentators.
WHEN IS THERE LIABILITY FOR
OMISSIONS?
 Liability for omissions does fail to arise in
certain special circumstances
 The cases that have imposed liability have
not, however, fallen into specific categories.
 Lumney and Oliphant have identified several
categories in which liability does arise:
 (1) When the Defendant has created the
danger themselves, even through no fault of
their own
 (2) The Defendant’s undertaking of
responsibility for the claimant’s welfare
WHEN IS THERE LIABILITY FOR
OMISSIONS?

 (3) the defendant's occupation of an office or

position of responsibility (e.g. As a parent,
employee, or as the owner or occupier of a
piece of land)
WHEN IS THERE LIABILITY FOR
OMISSIONS?
 Capital and Counties plc v Hampshire County
Council
 (1) There could not be recovery where fire
brigades failed to extinguish fire, including
when the fire brigade failed to provide
working hydrants. This was because there
was no proximity to a specific person, only
ever a duty to the general public. (The fact
that the claimant in this case was an
insurance company may well have influenced
the Court of Appeal)
WHEN IS THERE LIABILITY FOR
OMISSIONS?

 (2) It was held that in cases where the Fire

Brigade actually turned off the sprinklers
then the claimant could recover, as this
constituted an act rather than an omission.
 (3) policy arguments for no liability were
rejected, and it was held that proximity
could be said to exist when the firecrew
actually acted to make things worse, not
when they simply failed to act.
WHEN IS THERE LIABILITY FOR
OMISSIONS?
 (4) It was held that there could be immunity
from liability when the Defendant was
subject to conflicting duties and liability
considerations which might skew their
incentives.
 (5) However in general a restrictive standard
of care was to preferred to a flat immunity.
 (6) However a fire brigade which took control
of fire-fighting operations, and ordered other
to stop their independent efforts to put out
the fire did not assume responsibility.
WHEN IS THERE LIABILITY FOR
OMISSIONS?
 In East Suffolk Rivers Catchment Board v Kent
– a breach in a sea wall caused by a very high
tide level led to the flooding of the plaintiff’s
land. The defendants undertook the repair of
the wall as was their statutory duty, but
carried out the repairs so badly that a job
that should have taken 14 days took nearly
200.
 It was held that there was no liability for
failure to repair the sea wall, liability would
only ever arise if the defendant made the
flooding worse.
WHEN IS THERE LIABILITY FOR
OMISSIONS?

 Similarly in the case of OLL Ltd v Secretary

of State for Transport it was held that the
coast guard was not liable for the botched
attempt to rescue a group of children on a
canoeing expedition who got pulled adrift at
sea and 4 died. It was held that they did not
make things worse even though they
misdirected other rescuers who were
attempting to save the children.
WHEN IS THERE LIABILITY FOR
OMISSIONS?
 In Kent v Griffiths the claimant suffered an
asthma attack, and her doctor called an
ambulance. Whilst the call was accepted it
took 40 minutes for the ambulance to arrive.
Whilst the ambulance was taking time to
arrive the claimant suffered a respiratory
arrest which meant that she had permanent
brain damage. It was found by the judge that
if the ambulance had arrived earlier (as it
should have done) then the respiratory arrest
would have been avoided.
WHEN IS THERE LIABILITY FOR
OMISSIONS?
 It was held that there could be liability in
this case could be distinguished from that in
Capital and Counties as ambulances are not
like firefighters, but more like the duty owed
by a doctor.
 Additionally it was held that you could
distinguish between bodily injury and the
property damage
WHEN IS THERE LIABILITY FOR
OMISSIONS?
 Barrett v Ministry of Defence
 In this case the deceased was a serving naval
man, who got himself exceedingly drunk
while celebrating a promotion. He passed out
and was taken back to his room however
noone kept an eye on the claimant to ensure
that he was in the recovery position. The
deceased then choked on his own vomit and
died.
WHEN IS THERE LIABILITY FOR
OMISSIONS?
 A disciplinary inquiry found that bouts of
drunkeness were common at the base, and the
deceased’s widow brought an action for
damages.
 (1) It was held that the Defendant was not
liable for not stopping the naval officer getting
drunk
 (2) However it was held that the defendant
assumed liabililty for the claimant when he
took him back to his quarters, and for that
reason when he choked, they should have been
there to stop it
WHEN IS THERE LIABILITY FOR
OMISSIONS?
 In the Canadian case of Jordan House Ltd v
Menow the plaintiff was ejected from the
defendant’s hotel in a state of extreme
inebriation. He was then struck by a vehicle
as he made his way home by foot along a
highway.
 It was held that the defendant had breached
his duty of care to the claimant by
continuing to serve him when he was so
intoxicated, and turning him out on the road
when there was a probable risk of injury.
ASSUMPTION OF
RESPONSIBILITY
 Goldman v Hargrave
 In this case the defendant was the owner and
occupier of a piece of land adjacent to that
of the respondents. There was a tree in the
centre of the defendant’s piece of land
which was struck by lightning. The next
morning the claimant asked for a tree feller
to be sent. However he left the rest of the
tree to burnt out and did nothing to stop the
fire from spreading.
ASSUMPTION OF
RESPONSIBILITY
 It was held that the defendant was liable for
not extinguishing fire on his own land, which
spread to the claimant’s land. This was even
though the defendant did not start the fire.
 By owning property you undertake certain
minimum responsibilities to neighbours to
protect them for nuisance
 However this duty is qualified, and is limited
by the resources owned by the defendant
ASSUMPTION OF
RESPONSIBILITY
 This can be contrasted to the ruling in
Capital and Counties v Hampshire – the
owner or occupier of a piece of land owes a
duty of care to neighbours who may be
threatened by the fire.
 This duty seems to arise purely by dent of
the land owner or occupier being in
possession of the land
LIABILITY FOR ACTS OF THIRD
PARTIES
 The liability for acts of third parties raises
similar considerations. Often the
complainant is of an omission, the failure of
the defendant to control of a third party, or
to prevent a dangerous situation being
sparked off by a third party.
 Such cases often raise the same objections to
the imposition of liability as do ‘pure’
omissions cases, but there is the added
difficulty of causation.
LIABILITY FOR ACTS OF THIRD
PARTIES
 In general the acts of a third party will be
seen as an intervening act, which will break
the chain of causation.
 Nevertheless the law does impose liability for
the acts of third parties in certain
exceptional circumstances which are broadly
similar situations to those where there is
liability for pure omissions.
 The causation difficulty is met by recognising
a special type of duty to recognise a special
type of duty – a duty to control a third party.
LIABILITY FOR ACTS OF THIRD
PARTIES
 In the case of Home Office v Dorset Yacht
Company – a party of borstal trainees was
working under the supervision of three
borstal officers. During the night seven of
the borstal trainees escaped, when, it was
alleged, the officers had retired to bed
instead of keeping an eye on the trainees.
The trainees commandeered a yacht and
caused it to crash into the claimant’s yacht,
and then proceeded to trash the yacht. The
claimants sued the Home Office for damages.
LIABILITY FOR ACTS OF THIRD
PARTIES
 It was held that the liability was not for the
responsibility for the acts of the escaping
trainees, it was for damage caused by the
carelessness of the borstal officers in the
knowledge that this kind of carelessness
would normally result in the trainees causing
damage of this kind.
 Thus it was held the defendants were indeed
liable
LIABILITY FOR ACTS OF THIRD
PARTIES
 Lord Reid believed that it was the
foreseeability of the damage which was key
to the existence of a duty
 Lord Diplock and Lotd Pearson relied upon
considerations of proximity as a way of
limiting the claimant’s liability in an
appropriate case.
 Although it is not clear which test is correct
it is unlikely that the application of one or
the other will lead to a different result in
any case
LIABILITY FOR ACTS OF THIRD
PARTIES
 In the vast majority of cases, however, there
would be no liability. Lord Reid held:
 In the first place it would have to be shown
that the decision to allow any such release was
so unreasonable that it could not be regarded
as a real exercise of discretion by the officer
who authorised the release.
 Secondly it would have to be shown tht the
commission of the offence was the natural and
probable, as distinct from merely foreseeable,
result of the release, such that there was no
novus actus interveniens.
LIABILITY FOR ACTS OF THIRD
PARTIES
 Thus in K v Secretary of State for the Department
a claimant who was raped by a foreign citizen,
with a criminal record in the country, who had
been detained by the Home Office pending
deportation but then released without warning.
The claimant’s action was struck out as there not
any relationship of proximity between the
claimant and the defendant so as to create a
duty of care. The defendant’s mere knowledge
that another person caused a particularly grave
risk of harm was not sufficient to create the
necessary proximity.
LIABILITY FOR ACTS OF THIRD
PARTIES
 In Carmarthenshire County Council v Lewis a
lorry driver lost his life when he was forced
to swerve in an effort to avoid a small boy,
and hit a lamppost. The four year old boy
had strayed from his nursery and wandered
into the road. The deceased’s widow
succesfully brought an action against the
education authority in negligence, in the
House of Lords it was also held liable for its
failure to prevent the child from escaping
(beyond being vicariously liable for the
negligence of the teacher).
LIABILITY FOR ACTS OF THIRD
PARTIES

 Whilst in Hill v Chief Constable of West

Yorkshire Police it was held that the police
could not be held liable for the murder of a
young woman by the notorious serial killer
Peter Sutcliffe as there was no proximity
between the victim and the killer, nor the
defendants and the killer.
LIABILITY FOR ACTS OF THIRD
PARTIES
 In the American case of Tarasoff v the
University of California it was held that there
might be a duty for a psychologist, whose
patient had confided in him that he was
planning to kill a specific woman, to warn
that woman that her life might be a danger.
 In the English case of Palmer v Tees Health
Authority it was alleged that the defendant
health authority was responsible for the
abduction and murder of the claimant’s four
year old daughter by a psychiatric patient
LIABILITY FOR ACTS OF THIRD
PARTIES
 The patient had been discharged the
defendant’s hospital the previous year, but
was still an out-patient and had failed to
attend most of his recent appointments. The
case was struck out for lack of proximity, the
defendant had not assumed any
responsibility to the victim, the victim was
merely a unidentifiable member of a large
class at risk.
CONTROL OF LAND
 The issue of liability in negligence for harm
to neighbour’s resulting from the entry of
trespassers onto the land was raised in the
case of Smith v Littlewood Organisation Ltd.
 In this case the respondent’s purchased a
cinema with the view to destroying it and
replacing it with a supermarket. After
purchasing they employed some contractors
to look at the foundations, but then it was
left empty.
CONTROL OF LAND
 The building was regularly being entered by
unauthorised persons and debris began
accumulating outside the cinema, and several
attempts to start fires inside or beside the
cinema were made. After this a fire was
started in the cinema which seriously
damaged the adjoining properties, one of
which was to be demolished. The claimants,
the owners of the affected properties claimed
damages against the respondent on the
ground that the damage had been caused by
the defendant’s negligence.
CONTROL OF LAND
 The question for the court was two-fold:
 Firstly (a) whether a general duty of care
was owed by the defendants to the claimants
to ensure that their premises did not become
a source of danger and
 (b) whether the general duty encompassed a
specific duty to exercise reasonable care to
prevent young persons obtaining unlawful
access to the defendant’s premises, and
having done so, unlawfully setting the fire.
CONTROL OF LAND
 In this case the House of Lords were keen to restrict
the liability of owners and occupiers for harm caused
to neighbouring property by trespassers on their land.
 Lords Brandon, Griffiths and Mackay conceded their
was a duty of care, but held that there was no breach
- he only thing that could possibly have prevented a
fire would be a 24-hour guard on the premises and
that would be an intolerable burden to impose on the
owners in this case. Mere foreseeability of damage
was not sufficient basis to find liability.
 Lord Good held that there was never any duty of care