Third Party Omissions

Good Essays
Furthermore, the above two categories under the assumption of responsibility demonstrate that there is a correlation of fairness for imposing liability for omission. It is further necessary to determine third parties in relation to the omissions. Generally, third party omissions would not rise to liability in tort of negligence as they do not owe a duty of care to that specific individual. Although, the exceptions to this rule arises from when “the defendant has a duty to control the third party or a duty to safeguard a dangerous thing”. Firstly, Home Office v Dorset Yacht Co Ltd demonstrates that a ‘defendant has a duty to control the third party’. The case concerned a supervision of young offenders while they carried out the work. Subsequently, …show more content…
This can be demonstrated through the Osman v United Kingdom case. The claimants argued that the police had an assumed responsibility for their safety. Although, it was contended that public authorities will be held liable for their omission only if they knew of the situation or were required to have known of the existence of a real and immediate threat. However, if this rationale can be justified to be fair, then in the Smiths case, why was it held that the police did not have an assumed responsibility to the claimant, when the claimant had made his situation known to the police about the threats and previous violence? Craig argues that this blanket of immunity developed by the Hill v Chief Constable of West Yorkshire Police case is not fair; because the position of a public body vested with discretionary powers is not the same as that of a private individual. He argues the reasons for the reluctance to impose liability in cases of pure omissions concerning private individuals, should not be transferable to public bodies which are granted discretionary powers. By contrast, McIvor disagrees with Craig and argues that if public authorities were liable for pure omissions, it would impose a defensive approach, whereby individuals will take additional time and resources to eliminate the most unlikely risk, which would be a detrimental threat to the …show more content…
The three stage test outlined in Caparo , delivers the foundation for the fairness rationale, as the third stage looks at whether it is ‘fair, just or reasonable’ to impose liability. This is imperative as social norms change on a regular basis. Thus, enabling the law to be adequate with modern public policy and to ensure a fair and just judgement is delivered. Hence, following these elements established through the three stage test, assumption of responsibility as an exception to the exclusionary rule for omissions sets out categories to which impose liability for omission. Firstly, the essay looked at the category of actions, where the defendant agrees to act or voluntarily accepts a responsibility, but later fails to do so. It is argued that this category demonstrates assumption of responsibility as fair because taking upon a responsibility, voluntary or contractually renders one to rely upon that person to deliver that specific care. If one could later fail to carry out the responsibility and this omission caused harm, it would not deter people from committing such torts if one was not imposed with liability. Secondly, the category of special relationships has been conceded here to be fair, as having that proximity and causing an omission is not right or justifiable.

Related Documents

  • Decent Essays

    Harm is an action that is “injurious or set[s] back important interest[s] of particular people, interests in which they have rights,” whereas a mere offence is something that Mill’s does not see as a defence under the harm principle (Brink 2007, ch.3.6, para. 2). The second concept beneath the harm principle is that this principle is imposed to prevent someone from trying to cause harm in a certain way. It can become difficult trying to guard individuals from harm, therefore, allowing for citizens to self-govern themselves so they can determine what is safe and harmful. From what we can understand, the harm principle regulates a relationship between individuals and the government, however Mill’s wants this theory to dig deeper and apply its foundation within the family (Brink 2007, ch.3.6).…

    • 1465 Words
    • 6 Pages
    Decent Essays
  • Decent Essays

    Additionally, civil disobedience may be set aside as the pis aller but this would defer justice and consequently form a bigger issue (Lefkowitz 212). Furthermore, although a person has a responsibility to follow state laws in exchange for experiencing the advantages of residing in that state, such a convention does not include unfair laws as they are proscribed. Lastly, civil disobedience may counteract the greater iniquity of repression thus it is a public benefit in such instances (Olsen 220). There is nothing to lose with civil disobedience because if the majority opinion is not changed by civil disobedience, justice and stability remains sustained. However, civil disobedience strengthens the possibility of improvement.…

    • 1009 Words
    • 5 Pages
    Decent Essays
  • Decent Essays

    Therefore, non-disclosure would only infringe on the people’s rights (Global Campaign for Free Expression, 1999, p. 3). It would be ethical to disclose information in such instances. Furthermore, in case non-disclosure involves hiding criminal acts and misuse of power, ethical practices dictates that one is obligated to report such offences. However, one must be careful not to threaten national security or incite conflict in the process of disclosure. It would be unethical if the disclosure was to negatively impact on the…

    • 1284 Words
    • 6 Pages
    Decent Essays
  • Decent Essays

    Hart recognizes that morality and law share qualities, as in duties and obligations, but he holds that Aquinas confuses the two to an unreasonable extent. He goes so far as to equate the statement regarding the unjust law with one expressing that a statute is not a statute (Hart 8). This is not an especially strong refutation of Aquinas, if only because Hart is exercising here the same exaggeration he charges Aquinas of presenting. It is arguable that a more valid opposition would refer to the reality that what is moral alters in any society over time, and thus any reliance on morality to determine the worth of law is inherently suspect. As noted, this reality is certainly evident in American history.…

    • 945 Words
    • 4 Pages
    Decent Essays
  • Decent Essays

    (Sinnot Armstrong Section 4) A problem that arises by utilizing a modest contrast class is that an individual can be justified in a belief but lack the qualification. If the contrast class is limited to the choice A and alternatives B, C, and D, an action can be justified if A proves B, C, and D morally wrong. The reason people can be unqualified when utilizing a modest contrast class is that a new option could be presented, choice E. Choice E is not considered so choice A cannot be justified unless A refutes E. (Copp 812) For day to day decisions the use of a modest contrast class is acceptable and generally used because certain extremes are typically refuted. Unknown or unconceived alternatives can be added to a contrast class through newly presented evidence. Evidence is crucial to moral skepticism because it determines how we justify our thoughts so whenever possible one should always strive to understand all aspects of a situation.…

    • 1131 Words
    • 5 Pages
    Decent Essays
  • Decent Essays

    R V G 2003 Case Study

    • 969 Words
    • 4 Pages

    The objective test of recklessness was adopted in Caldwell and extended mens rea to include inadvertence. A problem arising out of this approach was that it ran counter to the orthodox subjective approach to mens rea and recklessness was closely similar to that of negligence. Since the defendants give no thought to any risk an issue on appeal to the House Lords, completely challenging the Caldwell ruling, was whether a conviction could be upheld, because of the individuals age and personal characteristics such a risk would not have been obvious to him, even if he had thought about it. Lord Diplock in Caldwell took the view that the accused in that case was morally blameworthy. Lord Diplock extended recklessness by applying an objective test of what a reasonable person would have contemplated in order to bridge the gap between moral blame and legal guilt.…

    • 969 Words
    • 4 Pages
    Decent Essays
  • Decent Essays

    Devlin and Dworkin agree that not every individual is capable of giving consent and there should be restrictions of what individuals are capable of such, this would allow legal intervention in some of the acts Devlin considers immoral. Public morality is something that comes from justification not from a reasonable man making decisions for society as a whole. Although if a society has an overwhelming opposition to an act that Dworkin would deem as justificatory then there should be a right to overturn such act otherwise it could potentially be more harmful to society than prohibiting…

    • 1204 Words
    • 5 Pages
    Decent Essays
  • Decent Essays

    Promissory estoppel is made as a defence to protect a person. The first benefit of promissory estoppel is that it protects innocent individuals who are in a weaker position of the legal issue raised. Hence, weaker parties benefit from this doctrine, as they are usually up against strong parties such as employers or companies or landlords. In simplest words, promissory estoppel is used in order to prevent the promisor that created the contract from taking advantage of the general rule, hence making the promise binding even if there is no…

    • 1898 Words
    • 8 Pages
    Decent Essays
  • Decent Essays

    Free Will Vs Determinism

    • 1009 Words
    • 5 Pages

    A neutral stance to this is the claim that “ one can be held morally responsible for one’s actions only if one could have acted otherwise in a given set of circumstances.” (The Philosophical Review, page 440). Determinist would disagree with this claim because it is if an agent is never in control of the situations that they are forced into, how can they be morally responsible. Free will does not easily tie into the premise because if we choose our own action then we should be held morally reasonable for them, but if one said that “X” did Y because she/ he could it fails to prove moral responsibility and seems as if our action or arbitrary or random. However if an act is described as “not determined” or “uncaused” that means that free will cannot be used because the action is random therefore not in the agent’s power, thus making morally responsibility invalid. Simply, without the just the agent being the cause of an action, they cannot be held to moral…

    • 1009 Words
    • 5 Pages
    Decent Essays
  • Decent Essays

    However, it is ethically wrong because the evidence was obtained illegally. The officer and some within society may feel inclined to believe the end result justified the means, but obtaining illegal evidence is an inappropriate action under the law. Therefore, the utilitarianism ideology has weakness when dealing with injustice and implies that it is okay to mistreat one to benefit others (Braswell, McCarthy and McCarthy, 2014). As a result, the officer’s actions are dependent on the choice that was made coupled by the situation in which the decision was made (Gaines & Kappeler,…

    • 792 Words
    • 4 Pages
    Decent Essays

Related Topics