Omissions and Third Parties

 

1. Policy reasons for limiting liability for a failure to act

Stovin v Wise

• Facts: A county council with statutory power to take steps to make roads safe had decided to cut away a bank from a roadside to improve visibility at a dangerous junction. But then nothing was done to implement the decision. The plaintiff was injured in an accident on the highway, and the defendant driver claimed that the council had breached a duty of care to the plaintiff. The trial judge held that the Council was in breach of a common law duty of care to the plaintiff and was liable
• Lord Hoffman: there are three types of reason to consider
  1. Political: effectively an imposition for failure to take steps requires justification
     • It is less of an invasion of another’s individual freedom for the law to require him to consider the safety of others in his actions than to impose a duty on him to rescue or protect
  2. Moral: to do with fairness of imposing duty on bystanders= the why pick me argument
     • This argument a duty to prevent harm to others or to render assistance to a person in danger or distress may apply to a large and indeterminate class of people who happen to be able to do something. Why should one be held liable and not another?
     • It is another matter to require a person who is doing nothing, to take positive action to protect others from harm for which he wasn’t responsible and holding him liable in damage if he fails to do so.
     • Something more is required than just being a bystander. There must be some additional reason why it is just, fair and reasonable that one person shall be regarded his brother’s keeper and have legal obligations in that regard.
  3. Economic: as a matter of economic analysis, people ought to be made to bear the costs of their own activities.
     • The efficient allocation of resources usually requires an activity should bear its own costs. If it benefits from being able to impose some of its costs and other people (what economists call externalities) the market is distorted because the activity appears cheaper than it actually is. So as a deterrent against increasing the cost of the activity to the community and it uses externalities.

• Lord Nicholls (dissenting)- making someone owe a duty of care for failing to act is making a duty of compulsory altruism. And special reasons are needed to impose such a duty.
• These reasons = why duty of care not owed on omissions.
  • Focus is on the interest of the individual D, no sense of a collective interest that could be served by imposing a duty of care for failing to act.
  • These were general reasons- HoL weren’t saying you could never owe a duty of care for failing to act, it was just explaining the general reasons why this wasn’t the default position in respect to omissions.
  • In some cases the distinction isn’t clear cut.

 

2.    Distinction between acts and omissions

• Problematic- negligence is generally seen as a failure of failing to act in a particular way. So you could describe a failure to act in a certain way as an omission.
  • But that’s not enough to make something an omission- what you’re really looking for is that the D merely failed to improve the existing situation. If D has made the matter worse that looks like an act, if they’ve failed to improve the situation= omission.
• Limited scope for omissions- there is no duty to be a Good Samaritan in English law. Reasons:
  • Over burdensome nature of duties of affirmative actions
  • Unfairness of singling out one of the countless people who did nothing to help in a situation.
• Lord Nicholls in Stovin V Wise: there is a difference between positive acts and omissions; in some cases the distinction is not clear-cut. The terms act and omission are at a purely linguistic level interchangeable to every instance of human conduct.  The distinction does not reflect any deep philosophical subdivision of human conduct into two essentially different types.
  • Hart and Honore: there is no rational distinction that can be drawn between the causal status of acts and omissions.
  • In the tort context: the terms act or omission of clients to reflect a common sense distinction between making things worse and of making things better.

Duties of rescue: a comparative view

• English law recognizes no duty of rescue in the absence of special circumstances
• Some states in America have enacted good Samaritan statutes and in Australia comparable statutory immunities have been enacted.

 

Bender, ‘A feminist’s primer on feminist theory and tort’ 1988, 38 J leg Ed 3

• Tort law needs to be more a system of response and caring than it is now
• Focus on interdependence and collective responsibility rather than reasonableness and economic efficiency

 

Weinrib, ‘Correlativity, Personality And The Emerging Consensus On Corrective Justice’ 2001, 2 Theoretical Inq l 107 at 139

• Tort law corrects the injustice effected by the defendant doing something that is incompatible with the right of the claimant, and there is no general duty of affirmative action because a person imperilled on ordinarily has no right to expect another person to come to his aid.

3.    Examples of liability for omissions/exceptions

a)     Creating the risk

• If the D has created the risk and has been negligent in doing so and the risk has materialized injuring the C, the courts seem prepared to recognize a duty was owed.

Morrison v Lord Mayor of Sheffield 1917

• Facts: local authority D decided to plant trees along some of its streets, decided that these trees were at risk of being destroyed by children of Sheffield so they put railings with spikes around the trees. The trees and the guards had been put up well before 1914. During WWI English towns were subjected to lighting restrictions. In this situation the lighting restrictions had come into effect- unfortunately C was walking down the street during one of these blackouts and collided with one of the iron guards, the spike went into his eyes. It was agreed the local authority hadn’t been negligent in putting up the spikes around the trees as at the time they were put up no one anticipated the lighting restrictions.
• CoA: a duty of care was owed to not let the guards become dangerous to the public. Having created the risk, albeit not negligently, the local authority owed a duty to prevent the risk that materialized.

b)    Undertaking responsibility for claimant’s wellbeing

After Hedley- attempt to apply that principle to situations where D had failed to protect C against injury.

Capital and Counties Plc v Hampshire County Council 1997

• Facts: Owner of commercial premises claiming against local authority in respect of a fire at the premises. C’s owned the premises; they weren’t seeking to blame the authorities for the fire starting but the role of the fire brigade in failing to extinguish the fire. A fire was detected and a phone call was made to the fire brigade who accept the call and say we will come and put out the fire. They arrive but they decided to turn off the building’s sprinkler system in order to fight the fire.
• Argument 1-duty of care arose the moment at which the fire service accepted the call as at that point responsibility was assumed.
  • CoA rejected this argument. C isn’t allowed to argue that because people generally assume that the fire service will respond promptly, there is reliance on the fire service. This wasn’t sufficient as far as getting to the scene if the fire is concerned e.g. if they had got lost, that wouldn’t give rise to a duty of care as soon as they accept a call.
• Argument 2- once the fire service arrived at the scene, at that point having taken control of the situation they assumed responsibility to us.
  • CoA- reject this argument also, once the fire brigade arrives at the scene they may have taken control of the situation, but they aren’t assuming responsibility to any one individual, they owe a duty to the public at large. Important because a fire brigade arriving at the scene could be faced with difficult decisions e.g. if they have to break into next door to get to the danger or if they have to destroy premises in order to prevent fire spreading- it would distract the fire brigade if they had to think about all the different claims that could be brought by everybody.
• Argument 3- when they switched off the sprinkler system that was a positive act and it was a negligent one that damaged the premises. If the fire officer hadn’t done that there wouldn’t have been negligence but his act of switching off sprinklers caused damage.
• CoA issue- is there a common law duty on the fire brigade to answer calls to take reasonable care to do so?
  • Stuart Smith LJ –in our judgment the fire brigade are not under the common law duty to answer the call for help and are not under a duty to take care to do so. If therefore they failed to turn up or failed to turn up in time because they have carelessly misunderstood the message, got lost on the way or run into a tree, they are not liable…
  • Could this be distinguished in an accident and not a fire call.
    • Usually they do not as a rule create the danger which causes injury to the plaintiff or loss to his property. For the most part they act in the context of a danger already created and damage already caused. Whether by the forces of nature or the acts of some third party or even of the plaintiff himself.

Ken v Griffiths 2001

• Facts: C suffered asthma attack, her GP happened to be there, GP decided it was necessary for her to go to hospital and called for an ambulance which then took 40 mins to arrive. No adequate explanation given as to why it took so long. As the C was being taken in the delayed ambulance to the hospital she suffered severe respiratory attack. If she had been taken to the hospital promptly this wouldn’t have happened. It was emphasized that the C’s husband and GP were in the house, GP says if he’d known delay would happen he would’ve asked the husband to take her.
• Issue: was the ambulance negligent for failing to turn up on time?
• CoA: yes duty of care owed here emphasized two features:
  1. Ambulance’s failure to arrive didn’t merely stop the situation getting better it made it positively worse, because the C’s husband was at hand to help, had the true position of the situation been appreciated.
  2. Emphasized when ambulance allocated to a particular call, the situation is different to where a fire crew is allocated to a fire. With the ambulance they only owe a duty in respect to the one specified individual for whom the call was made. No need to go into the decisions made in Capital Counties- no problem of multiple people claiming, only Mrs K owed a duty
• The current state for the law- rule is different for fire services and ambulance- at least in particular where ambulance called for a particular individual
• Lord Bingham in Chief Constable of Sussex case- the way to make sense of the above two cases is that Capital is concerned with the protection of property whereas Kent concerned with human life and physical injury
• Feared at the time the Kent case would lead to burdensome litigation against the ambulance services.
• Lord Woolf- distinguished fire service and ambulance scenarios on the basis that when responding to a call a fire service is acting in pursuance of a public duty, whilst the ambulance service typically isn’t because it’s responding to the need of an individual.

 

Winfield & Jolowicz– noting the tension between Capital & Counties and Kent para 5-33

• If there is to be a difference between the cases, it seems better to realise that it lies in the fact that the fire service is primarily concerned with saving property and that imposing liability would tend to enure for the benefit of subrogated fire insurers who have taken a premium to cover the risk, though that would hardly justify a different result where life was at risk from the fire.

Conflict:

• In Kent Lord Woolf- ambulance services were provided under statutory provisions the breach of which didn’t give rise to a private law right to damages, YET found that the ambulance service might be liable for common law negligence.

VERSUS

• HoL decision Gorringe v Calderdale Metropolitan Borough Council 2004- lordship held that no positive duty to act could be found merely on the presence of a statutory powers which, if exercised, might have prevented the damage to the C.
• Kent can be defended even after Gorringe on the basis that the ambulance service assumed responsibility for the C when it accepted the 999 call, this provides a basis other than the existence of a statutory power for the imposition of a positive duty.
• Michael v Chief Constable of South Wales 2012 HRLR 789- woman called 999 having been assaulted by ex-boyfriend who had taken her current partner away but threatened to come back and hit her. She told operator he was going to kill her on his return. Operator replied that a local officer would call her shortly and the info was relayed to the officers on mobile patrol, but by mistake the call wasn’t graded as requiring an immediate response. CoA said that the operator’s response to the womans call couldn’t be arguably regarded as an assumption of responsibility for her safety or to ensure that she was even called
• Capital counties mentioned in passing, Kent v Griffiths not at all
• I think it should depend on the facts whether or not the police are seen more as like the firefighters or ambulance services.

Williams, “Litigation Against English NHS Ambulance Services and the Rule in Kent v Griffiths” (2007) 15 Medical Law Review 153.

• 260 claims brought against ambulance services between 1994-2004, less than 60 concerned with ambulance getting there on time, less than 1/3 had been successful
• Fact that Kent has yielded one case a year makes the claims and fears that the ambulance services will be burdened with paying damages unfounded.

Military cases

These two cases illustrate the limits between owing a duty and not owing one:

 

Barret v MOD 1995

• Facts: C airman serving at a base in North of Norway, as CoA explained the only thing there for them to do was to play video games and get drunk at the bar provided by the MOD- military was aware of the lack of hobbies. Barret had just been promoted and it was his birthday, he drank a lot to the extent that he collapsed. On the order of the senior officer he was taken to his bunk, but no one kept an eye on him and he choked to death on his own vom. The claim is brought by his widow. MOD admits that as soon as the officer ordered him to be taken to his bunk they had assumed responsibility and were liable to some extent.
• Contested issue: whether MOD owed a duty of care right from the start i.e. stopping him from getting into that state. CoA said they didn’t owe that duty as it would dilute self-responsibility if you were to impose that duty on mod to stop service men from getting drunk. They as capable adults can make choices about how much they drink.
• Court’s decision: based on the D’s assumption of responsibility for the deceased’s health and safety and not its supply to him of dangerous quantities of drink.

 

Jebson v MOD 2000

• Facts: Jebson was a solider in a unit which had performed well in a military exercise as a reward they were taken to nearby Portsmouth to do whatever they wanted that evening, and they would be brought back in a lorry in a happy state. Jebson was on the lorry on the way back, it was an open lorry with a canvas roof, he decides to go on top of said roof to try an impress some ladies. It doesn’t end well.
• CoA: had the military authorities assumed responsibility for him i.e. stop him from getting into the situation where he would injure himself? Yes a duty was owed here because the entire excursion was organised by the senior officer and that duty had been breached by failing to provide appropriate transport for the return journey.

 

Where D is prison authority and one of the prisoners has injured himself:

Reeves v Commissioner of Police for the Metropolis 2000

• Confirms: in this kind of situation prison officers owe a duty of care. In this case the prison officers knew that a particular prisoner was a suicide risk and they failed to remove item to prevent him from doing this- he killed himself.

C) Occupation of land

Goldman v Hardgrave 1967

• Facts: concerned a situation in which the owner of a large estate in Australia was made liable to one of his neighbours. Lightning struck a tall tree on his property, so had the tree cut down and put out the fire, but a thorough job wasn’t done, the fire started to spread again and he did nothing to put out the fire this time, therefore there was liability in negligence as the land owner owed a duty to his neighbour in relation to the escaping fire.

D) Medical professionals

This area of law still developing.

Williams, “Medical Samaritans: Is there a Duty to Treat?” (2001) 21 Oxford Journal of Legal Studies 393-413

• Questions involving doctors to whose attention it was brought that a person was taken ill and needed medical treatment. Does this require the Dr to go the aid of the person who is ill?
• There is no English case on this as of yet
• But Williams analyses recent Australian case. – The ethical duties doctors owe should be taken into account in the law of negligence.
  • He’s concerned with the situation where if a Dr passes someone who is ill- are Drs obliged to look after someone who is ill?

4.    Liability for the acts of third parties

• Arguing that D ought to have taken steps to prevent injury of a third party
  • D’s negligence is said to have created the opportunity/setting in which a third party was able to cause damage to the C
• Quite an unusual situation for a duty of care to arise- the D’s negligence should’ve caused the C’s damage, but if all the D has done is create the opportunity for which the third party has been able to cause damage, the D shouldn’t be liable because there is no causal connection between the negligence and damage
  • Exceptionally there can be liability however to prevent 3rd party from causing damage to C
• Normally causation rules will prevent liability unless it’s an exceptional circumstance causation doesn’t stop this from arising

a)     General rule

No liability

b)    Exceptions to the general rule

• Underlying theme in these cases is the basis of any such duty of care , is the duty of care based on reasonable foreseeability- is it simply a question of whether D ought to have                                          foreseen that a 3rd party would injure C. Or is it that the duty has to be defined in a more limited way confined to particular situations.

Home Office v Dorset Yacht 1970

Prefers foreseeability analysis

• Facts: Home Office was being sued by the owners of some yachts which had been in a harbour and damaged by some young offenders who had been taken from prison for an activity day on Brownsea Island. It was part of a programme trying to rehabilitate them. For these particular young offenders the programme was rather premature as they absconded from the island, stole a boat and crashed into the yachts.
• Issue: did the Home Office owe a duty of care to take reasonable steps to prevent the young offenders form causing damage?
• HoL: a duty was owed, if the officers caused a risk that the boys would damage the plaintiff’s property, then they owed the plaintiff a duty to take reasonable care to prevent the risk from coming about. But the judges didn’t agree on the analytical basis
  • Lord Reed: emphasized foreseeability aspect- we should simply apply the Donoghue analysis
  • Lord Pierce and Diplock: rejected the idea that foreseeability should be enough. They emphasized policy reasons instead
  • Diplock: you have to try and build up the argument for a duty of care incrementally i.e. step by step. The important thing about this case was analogous in which one prisoner might attack another prisoner whilst they were both locked in a cell- in that situation there would be a duty of care towards the attacked prisoner where the authorities were aware of the risk towards the v.
    • In this case authorities didn’t have control of the environment… but that isn’t a big enough difference to deny a duty of care.
  • Excellent example of the way in which different judicial approaches can lead to the same result. Law Lords were divided over how to develop or to contain Lord Atkin’s statement of the neighbour principle in Donoghue v Stevenson
    • Lord Reid- legal issue arising in respect of intervening acts as one of causation, and relied upon considerations of foreseeability or probability, the more likely the greater likelihood of a duty
    • Lord Morris- in terms of foreseeability of risk
    • Lord Pearson (explicitly) and Lord Diplock (implicitly)- relying on considerations of proximity; for them this provided a mechanism for limiting the scope of the D’s liability in an appropriate case.

 

Smith v Littlewoods Corporation 1987

• Facts: concerned claim brought against Littlewoods who acquired a site on which they planned to build a store. They delay on getting the development underway. In the meantime youths broke into the premises and set a fire which burnt down the building next door. Smith argued that Littlewoods owed a duty of care towards them.
• HoL: no duty of care was owed here but they didn’t agree on the precise analytical basis.
  • Majority: emphasized the point about reasonable foreseeability and that when a D’s foresight is being evaluated, one shouldn’t expect D’s to anticipate that third parties will act in a particular destructive way. Also Littlewoods was in a strong position as they weren’t aware people had been breaking in and that the security of the premises was compromised.
  • Lord Goff- v important analysis- it simply isn’t adequate to use the concept of foreseeability to determine when these duties of care arise, we should instead think of specific situations, situations with certain features which give rise to a certain duty. g. in the yacht case- the control which the D is entitled to assert over the 3^rd party explains why a duty arose. Or you could have a situation where responsibility is assumed in respect of the damage caused by a 3^rd party e.g. a situation where someone is looking after a house for the homeowner and negligently fails to lock the door and if the thief breaks in then the person in charge of the house would owe a duty of care based on the fact that he was in charge of the house and owed a duty of care in respect to the security being maintained.
    • or where D negligently creates a risk by gathering the materials which a 3^rd party then uses to cause damage e.g. a village gathers fireworks and store them in a shed and delinquent teens break in and decide to set them all off.

Two above cases: unanimous decisions but no agreement on the reasoning behind it.

 

Mitchell v Glasgow City Council 2009

Confirmed that the correct approach is the one outlined by Lord Goff

• Mitchell council tenant in Glasgow, has extremely violent and antisocial neighbour, neighbour smashed Mitchell’s windows. M complains to the council, the council being landlord of him and the horrible neighbour. So they issued a notice to the neighbour and they summoned him to a meeting, neighbour responded by murdering Mitchell.
• Claim: council was negligent, had they warned him about the violent neighbour getting a notice, M could’ve absented himself. Council ought to have realized that a violent response was likely
• Supreme Court: unanimously preferred the position in Smith, foreseeability isn’t sufficient alone; you need to try and fit any situation that arises within the situations lord Goff sets out.
  • No duty of care arose here, judges unanimously agreed, but their arguments took on different emphases
  • Lord Hope: think about this situation in terms of lord Goff assumption of responsibility- in this situation council hadn’t assumed assumption of responsibility
  • Lord Roger and Lady Hale: here thse council’s actions had been in no way to be criticized, the council couldn’t be regarded here as creating the risk. What the council did was entirely lawful and legitimate.
• Issue of supreme court’s reasoning being limited to situations restricted to statutory powers
• Think of the case in relation to the strong preference of lord Goff’s suggestions. But not solved problem as there’s still questions about how you fit particular situations to the categories suggested by Lord Goff.