Tort 2. Negligence: Duty Of Care Ii - Omissions Liability

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Exceptional negligence scenarios in which special duty of care ‘tests’ apply:

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(1) Liability for omissions

(2)Public authority liability

(3)Liability for the acts of third parties

(4)Liability for negligently inflicted economic loss

(5) Liability fornegligently inflicted psychiatric harm

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Liability for omissions

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(A). Acts/Omissions OR Misfeasance/nonfeasance distinction:Difference between making things worse andsimply failing to make things better.

Harnett vBond (1924)– Bankes LJ:“A medical man who diagnoses a case ofmeasles as a case of scarlet fever may be said to have omitted to make acorrect diagnosis; he may equally be said to have made an incorrect diagnosis.”

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Stovin v Wise [1996]

duty of care - omissions liability - public bodies - good samaritan

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FACTS Mr Stovin suffered serious injuries when he was knocked off his motorcycle by a car driven by Mrs Wise. She had pulled out of a junction in which visibility of traffic was hampered due to a bank of earth which was topped by a fence. The trial judge held that Mrs Wise was 70% to blame for the accident and that Norfolk County Council were 30% to blame because they knew the junction was dangerous and had been negligent in not taking steps to make it safe. The Council appealed.

Held:The council were not liable as liability related to an omission. There had only been three accidents in twelve years which was not enough to render the junction a 'cluster site' under the Council's policy for prioritising funding which required five accidents in three years. 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.

Lord Hoffman on imposing liability for omissions: “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 or natural causes.”

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Capital &Counties Plc v Hampshire County Council [1997]

duty of care - omissions liability - no duty to rescue - emergency services, fire department

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FACTS

1. HAMPSHIRE case: defendant fire brigadeattended fire with cause unknown and Station Officer ordered sprinkler systemturned off…held to have been negligent mistake which had adverse effect onrestraining the fire which spread rapidly and destroyed the whole building

2. LONDON case: premises showered withflaming debris from explosion on nearby waste land…explosion deliberate as itwas from special effects film and television company…fire brigade arrived arethe scene of the explosion and were satisfied all fires had been extinguishedand left…failed to inspect plaintiff’s nearby premise which suffered severedamage when fire broke out later

3. WEST YORKSHIRE: chapel destroyed by fire (causeunknown) which fire authority had failed to extinguish…plaintiffs alleged thiswas due to defendant fire authority’s negligence and breach of statutory dutyas 4 of the 7 fire hydrants around the chapel had failed to work for one reasonor another and three were never found or found so late as to be of little usedue to inadequate signage.

Court of Appeal, Stuart-Smith LJ:

a. “Is there a common law duty on thefire brigade to answer calls to fires or take reasonable care to so do?” ANSWER: “fire brigade not under acommon law duty…they are not liable…

b. “Whether a duty of care might arise once the firebrigade has arrived on the scene and started to fight the fire?” ANSWER: "first…they do not as a rule create the danger whichcauses injury to the plaintiff or loss to his property…they act in the contextof danger already created and damage already caused…but where therescue/protective service itself by negligence create the danger which causedthe plaintiff’s injury there is no doubt in our judgment the plaintiff canrecover…” and "second…requisite proximity exists...a fire brigade does not enter into a sufficientproximate relationship with the owner or occupier of premises to come under aduty of care merely by attending at the fire ground and fighting the fire…thisis so even though the senior officer actually assumes control of thefire-fighting operation”

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OLL v Secretary ofState for Transport [1997]

duty of care: emergency services, coastguard

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FACTS D a company running outward-bound courses. Four teenagers drowned in Lyme Bay after their canoes capsized in heavy seas. They had been inadequately equipped, trained and supervised, and D1 had delayed calling for assistance. The company had been warned twelve months earlier of dangerous flaws in some of its working practices.

Held: Coastguard does not owe a duty of care in respect of rescue operations unless their activity led to greater injury than would have occurred if they had not been involved.

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Alexandrou v Oxford [1993]

duty of care: emergency services, police

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FACTS The claimant owned a clothing retail shop in which he had installed a burglar alarm system which if activated would raise the alarm at his local police station through an automated 999 call. The shop was burgled but the police failed to secure the property and respond effectively. The Claimant brought an action in negligence against the Chief Constable. At trial, the judge found for the claimant. The Defendant appealed contending that no duty of care was owed.

Held: There was no sufficient "special relationship" between the shop owner and the police to create a duty of care. If there were a duty in this case, there would be a similar duty towards anyone reporting a crime against his person or property. C lost

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Kent v Griffits [2000]

duty of care: emergency services, ambulance - exception: defendant creates a source of danger

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FACTS The claimant was having an asthma attack. Her doctor attended her home and called for an ambulance at 16.25. The ambulance, which was only 6 miles away, did not arrive until 17.05. The claimant suffered respiratory arrest. Two phone calls had been made to enquire why the ambulance had not arrived and the operator confirmed that it was on its way. The doctor gave evidence that had she known of the delay she would have advised the Claimant's husband to drive her to the hospital.

Held: There were obvious similarities between the instant case and cases involving the police or fire services, where it had been held as a matter of public policy that there was no common law duty to an individual member of the public. In this case the fact that there was only one person who would foreseeably suffer further injuries by a delay was important in establishing the necessary proximity. Ambulance service owe duty if ambulance failed to arrive within reasonable time due to carelessness C won

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Haynes v Harwood [1935]

duty of care - omissions - exception: defendant creates a source of danger - volenti non fit injuria does not apply to rescuers - danger invites rescue

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The Defendant left a horse-drawn van unattended in a crowded street. The horsesbolted when a boy threw a stone at them. A police officer tried to stop the horses to save a woman and children who were in the path of the bolting horses. The police officer was injured. It was held that the Defendant owed a duty of care as he had created a source of danger by leaving his horses unattended in a busy street. The doctrine of the assumption of risk does not apply where the plaintiff has, under exigency caused by the defendant’s wrongful misconduct, consciously and deliberately faced a risk, even of death, to rescue another from imminent danger of personal injury or death, whether the person endangered is owed a duty of care by the plaintiff or not.

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Watson v BBBC [2001]

duty of care - omissions - exceptions: thedefendant’s undertaking of responsibility for the claimant’s welfare

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FACTS D the British Boxing Board of Control failed to provide sufficient medical care at the ringside. C a boxer suffered severe brain damage following an injury in the ring, but the evidence suggested his injuries would have been less severe had better medical attention been available at the ringside.

Held: The sport's controlling body owed a duty of care to those who took part. Injury was foreseeable. The licensing system created proximity, and in all the circumstances it was just, fair and reasonable to impose such a duty.The duty alleged was not a duty to take care to avoid causing personal injury, but rather a duty to take reasonable care to ensure that personal injuries already sustained were properly treated; C won

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Perry v Harris [2008]

duty of care - omissions - exceptions: thedefendant’s occupation of an office or position of responsibility, parent/child

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The defendant had organised a children’s party. The claimant (11) was injured when a bigger boy was allowed to use the bouncy castle at the same time. The defendants appealed the award of damages. HELD D won.

LordPhillips, CoA: "It is quite impractical for parents tokeep children under constant surveillance or even supervision and it would notbe in the public interest for the law to impose a duty upon them to do so. Somecircumstances or activities may, however, involve an unacceptable risk tochildren unless they are subject to supervision, or even constant surveillance.Adults who expose children to such circumstances or activities are likely to beheld responsible for ensuring that they are subject to such supervision or surveillanceas they know, or ought to know, is necessary to restrict the risk to anacceptable level."

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CarmarthenshireCounty Council v Lewis [1955] duty of care - omissions - exceptions: thedefendant’s occupation of an office or position of responsibility, teachers/pupils public policy – duty owed in operational matters

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FACTS D a Local Authority employed a teacher who left a 4-year-old child alone for about ten minutes while she did other things. The child left the classroom onto a busy road, where he caused a lorry driver to swerve and collide with a telegraph pole. The lorry driver was killed and his widow sued the education authority.

Held: The education authority had taken charge of the child and had a duty to take reasonable care to prevent him from causing harm to others. C won.

Lord Reid, (majority), said that it ought to have been anticipated by the appellants or their responsible officers that if a child was left unsupervised (for good reason or not) it might well try to get out from the school grounds onto the street and that if it did a traffic accident was far from improbable. This would have been very easy to prevent by making it difficult or impossible for such a child to be able to open the gate from the yard on to the roadway. The failure to do so led to the accident. To fail to do so was to fail to take reasonable care (certainly, for the safety of the child, but also, it was held, for the driver who forseeably might be injured in striking or avoiding the child once in the road).

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Barnett v Chelsea andKensington [1969]

duty of care - omissions - exceptions: the defendant’s occupation of an office or position of responsibility, doctors/patients - causation in fact – negligence essential - omission can give rise to liability - 'but for' causation test

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FACTS D, hospital where C went because of stomach pains and vomiting. The doctor refused to examine him and sent him home untreated; he died of arsenic poisoning five hours later. His family sued the hospital.

Held: C would probably have died even if the proper treatment had been given promptly, so the hospital's negligence was not the cause of his death. The hospital was not liable as the doctor's failure to examine the patient did not cause his death. Introduced the 'but for' test ie would the result have occurred but for the act or omission of the defendant? If yes, the defendant is not liable. C’s family lost

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Goldman v Hargrave [1967]

duty of care - omissions - exceptions: the defendant’s occupation of an office or position of responsibility, property owners

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FACTS A 100 foot red gum tree on the defendant’s land was struck by lightning and caught fire. The following morning the defendant contacted a tree feller to cut down the tree saw it into sections. The wood was still smouldering and the defendant failed to douse it with water to eliminate the risk of fire. Over the next few days the weather became very hot and reignited the fire which spread to neighbouring property.

Held: The defendant was liable for the naturally occurring danger that arose on his land as he was aware of the danger and failed to act with reasonable prudence to remove the hazard.

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Baker v TE Hopkins [1959]

duty of care - omissions - positions of rescuers as victims/claimants - danger invites rescue

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FACTS Two employees of the defendant company were overcome by carbon monoxide fumes in a well they were attempting to decontaminate. Theplaintiff, a doctor, went in to try to rescue them even though he was warned of the fumes and told that the fire brigade was on the way. The fumes had been caused by the company negligently placing a motor operated pump at the bottom of the well on some scaffolding in order to assist in the pumping out of the well. All three men died. The defendant contended that the act of the doctor acted as a novus actus interveniens and sought to invoke volenti non fit injuria.
HELD: The doctors actions were not a novus actus interveniens. It was foreseeable that if a defendant by his negligence places another in peril that someone may come to his rescue and the doctor's actions were not unreasonable in the circumstances. The Claimant's action was not defeated by volenti non fit injuria. He was and as such his actions did not count as freely and voluntarily accepting the risk. C won. The doctor's contributory negligence could only be recognised if he showed "a wholly unreasonable disregard for his own safety".

This case is one of the many in which the courts have refused to hold rescuers who have suffered in their rescue attempts to have negligently contributed to their injuries or accepted the risks involved in their rescue attempt. This applies to both amateur and professional rescuers, such as fire fighters.

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Videan v BritishTransport Commission [1963]

duty of care - omissions - positions of rescuers as victims/claimants - danger invites rescue

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FACTS Where the presence of a trespasser is not reasonably foreseeable, an occupier owes him no duty. The infant plaintiff, youngest son of a stationmaster, went on to a railway line. A motor-trolley driven by an employee of the defendants was about to run over the infant when the stationmaster, having vainly signaled the driver, leaped on the line and saved him. The infant was badly injured, but the stationmaster was killed. In an action by the infant for damages for his injuries, and by the widow in respect of her husband's death, the judge found that the trolley driver was negligent in not keeping a proper look-out and travelling too fast, but dismissed both claims, the infant plaintiff's on the ground that he was a trespasser and the widow's on the ground that a rescuer could be in no better position than the rescued.

Held, allowing in part the appeal, (1) that the infant was not entitled to recover damages since his presence on the line was not reasonably foreseeable; (2) the widow was entitled to recover compensation because (a) (per Lord Denning M.R.) the trolley driver should have foreseen that his negligent driving might cause an emergency, (b) (per Harman and Pearson L.JJ.) the presence of the stationmaster was something that was reasonably foreseeable by the trolley driver, and as he was not a trespasser the trolley driver owed him a duty.

LORD DENNING: The right of the rescuer is anindependent right and is not derived fromthat of the victim.…Foreseeabilityis necessary, but not foreseeability of the particular emergency that arose.Suffice it that he ought reasonably to foresee that, if he did not take care,some emergency or other might arise, and that someone or other might beimpelled to expose himself to danger in order to effect a rescue. Such is thecase here.