Tort Law Ch.5: Liability For Omissions

Front 1

Stovin v Wise [1996] AC 923 (HL)

Back 1

This case involved an omission to act. A road verge on which a bank of earth obstructed drivers’ views had been responsible for several accidents.

Norfolk County Council, which was aware of the problem but then failed to exercise its statutory power under Highways Act 1980 to require the landowner to remove the obstruction. Ms Wise was turning right at an acute intersection in Wymondham. Her view was obscured by an earthen bank which the Norfolk County Council's highway authority had earmarked for removal but since neglected. Ms Wise pulled into the road as Mr Stovin was approaching at speed on his motorbike. Unable to slow down in time, he crashed into Ms Wise's vehicle.

Mr Stovin successfully sued Ms Wise in negligence. HC held her 70% to blame for the accident, and the Council 30%. The question on appeal was solely whether the Council could indeed be liable. CA held that it was.

HL upheld the Council's appeal. In applying principle that there is no liability where a breach consists of a pure omission and D has not created the harm suffered, HL (by a bare majority) held that local authority owed no duty of care to road users for failure to exercise its powers to take positive steps to remove the bank.

Lord Hoffmann (in the majority) suggests that there are political, moral and economic reasons for this decision.

Lord Nicholls (in the minority) gave his views on correct general approach to imposition of liability for omissions. He agreed that although there could often be uncertainty about categorising omissions, it was correct that there should be a presumption against duty of care in these cases. He said:

… the recognised legal position is that the bystander does not owe the drowning child or the heedless pedestrian a duty to take steps to save him. Something more is required than being a bystander. There must be some additional reason why it is fair and reasonable that one person should be regarded as his brother’s keeper and have legal obligations in that regard. When this additional reason exists, there is said to be sufficient proximity.

=> Stovin v Wise is a decision of major significance in the development of negligence liability in English law. It deals with both the liability of state defendants and liability for omissions; the case exemplifies, and helped to establish, English law's conservative attitude to both.

Hint 1

Bank on road verge caused accident

Front 2

Horsley v. MacLaren [1972] S.C.R. 441 (SC of Canada)

Back 2

This case considered question, Has D entered into a relationship with C in which the law attaches positive duties to see that harm does not befall the claimant?

M, an invited guest on a cabin cruiser, which was owned and was being operated by the respondent K, accidentally fell overboard. In course of rescue operations, another invited guest, H, dived into the water to help him but effort was without avail. The rescuer was pulled from water by others on board, could not be resuscitated and was later pro­nounced dead. The body of the rescuee was never recovered. Medical evidence established that H died from shock sustained on contact with the icy water.

Two fatal accident actions were brought against K for benefit of the widows and dependants of the two deceased. H's family succeeded at trial but their claim was dismissed on appeal, and they then sought restoration by SC of the favour-able trial judgment. The other claim failed at trial and was not pursued farther.

Held 3:2 (Hall and Laskin H. dissenting) : appeal should be dismissed.

Per Curiam: There was a duty on part of respondent K in his capacity as a host and as owner and operator of cabin cruiser to do the best he could to effect the rescue of M.

Per Judson, Ritchie and Spence JJ.: There was no suggestion that there was any negligence in rescue of H and for K to be held liable to the appel­lants it was necessary that such liability stem from a finding that the situation of peril brought about by M falling into the water was thereafter, within the next three or four minutes, so aggravated by negligence of K in attempting his rescue as to induce H to risk his life by diving in after him. Although procedure followed by K was not the most highly recommended one, evidence did not justify a finding that any fault of his induced H to risk his life by diving as he did. If K erred in backing in-stead of turning the cruiser and proceeding "bow on", error was one of judgment and not negli­gence, and in circumstances ought to be excused.

Per Hall and Laskin JJ., dissenting: The view that K had been merely guilty of an error of judgment was not accepted. This was not a case where K had failed to execute required manoeuvre properly, but rather one where he had not followed the method of rescue which, on uncontradictory evidence, was proper one to employ in an emergency, and there was no external reason for his failure to do so. This breach of duty to M could properly be regarded as prompting H to attempt a rescue. He was not wanton or foolhardy and his action was not unforeseeable. In concern of the occasion, and having regard to K's breach of duty, H could not be charged with contributory negli­gence in acting as he did.

Hint 2

Man falls off Yacht in icy Canadian water

Front 3

Phelps v Hillingdon LBC [2001] 2 AC 619 (HL)

Back 3

This case considered question, D assumed responsibility for welfare of C in some respect?

HL held that an educational psychologist, employed by the local authority, was under a duty of care to Miss Phelps for failing to diagnose her dyslexia. The decision was based on fact that an educational psychologist is specifically called in to advise in relation to assessment and future provision for a specific child, and it is clear that parents and teachers will follow that advice. Educational psychologists assume a duty of care to pupils.

Hint 3

Failure to diagnose dyslexia in pupil

Front 4

Barrett v Ministry of Defence [1995] EWCA Civ J0111-2

Back 4

This case considers question, has D assumed responsibility for welfare of C in some respect.

A sufficiently close proximity between D’s conduct and C’s harm created an assumption of responsibility for C’a wellbeing. Here, there had been a pattern of excessive drinking among soldiers at a remote Navy base, where drinks were very cheap. One night, after a bout of heavy drinking, a soldier became unconscious. duty officer arranged for him to be taken to his room where he was left unchecked. He later died due to choking on his own vomit and his widow brought an action in negligence against Ministry of Defence.

CA held Navy was not liable for preventing deceased from excessive drinking or for anything that happened prior to his collapse. However, when he collapsed D assumed responsibility for him and measures taken fell short of standard reasonably to be expected. There must be proximity in the sense of a measure of control over, and responsibility for, potentially dangerous situation.

Hint 4

Soldier drinking heavily and suffocating

Front 5

Goldman v Hargrave [1967] 1 AC 645 (HL)

Back 5

This case shows D may be liable to remove a source of danger of which they are aware.

Has D been thrust into a position which requires them to take some action?

D’s redgum tree, 100 feet high, was struck by lightning and caught fire. D caused land around the burning tree to be cleared and tree was then cut down. He did not extinguish fire after doing this in belief that fire would eventually burn itself out. However, it kept smouldering and subsequently wind increased and fire spread to his neighbour’s land.

D was held negligent for failing to take adequate precautions to extinguish fire in face of foreseeable risk.

NOTE: in such a case D may not have to show the care of a reasonable person, but only have to do what he is capable of, given his health and resources.

Hint 5

Redgum tree caught fire

Front 6

Office v Dorset Yacht Co Ltd [1970] AC 1004 (HL)

Back 6

This case is an example of Liability for acts of third parties.

some borstal trainees escaped from custody during night when allegedly three officers in charge were asleep. escapees went aboard a yacht and caused damage to C’s yacht which was moored close by.

Home Office argued that it would be contrary to public policy to hold it (or its officers) liable to a member of public for acts of a third party by failing to restrain them. issue here was an omission; failure of the prison authorities to prevent boys’ escape.

A majority of HL concluded that a duty of care was owed on the grounds that the relationship between the Home Office

and borstal boys and relationship between Home Office and yacht owners was sufficiently proximate to give rise to a duty of care. borstal boys were under control of officers and control imports responsibility.

Hint 6

Damage to yacht by escapees

Front 7

Office v Dorset Yacht Co Ltd [1970] AC 1004 (HL)

Back 7

This case is an example of Liability for acts of third parties.

some borstal trainees escaped from custody during night when allegedly three officers in charge were asleep. escapees went aboard a yacht and caused damage to C’s yacht which was moored close by.

Home Office argued that it would be contrary to public policy to hold it (or its officers) liable to a member of public for acts of a third party by failing to restrain them. issue here was an omission; failure of the prison authorities to prevent boys’ escape.

A majority of HL concluded that a duty of care was owed on the grounds that the relationship between the Home Office

and borstal boys and relationship between Home Office and yacht owners was sufficiently proximate to give rise to a duty of care. borstal boys were under control of officers and control imports responsibility.

Hint 7

Damage to yacht by escapees

Front 8

Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2

Back 8

This case is an example of Liability for acts of third parties.

SC ruled that a positive duty was owed to a patient known to be at risk of suicide. hospital trust was liable for allowing patient to go home (against the wishes of her parents) when she had previously attempted suicide. This claim was based on a breach of Article 2 of the European Convention on Human Rights (everyone’s right to life shall be protected by law).

Hint 8

Patient committed suicide when allowed to go home

Front 9

Carmarthenshire County Council v Lewis [1955] AC 549

Back 9

This case is an example of Liability for acts of third parties.

a young child ran from his nursery school premises onto a busy road and caused an accident.

HL confirmed responsibility of parents and teachers for behaviour of children and held that defendants were under a duty to take reasonable steps to prevent child becoming a danger to others.

Hint 9

Child ran into road and caused accident

Front 10

Smith v Littlewoods Organisation Ltd [1987] AC 241 (HL)

Back 10

What is the content of the duty?

defendants purchased a cinema which remained empty and unattended for over a month while waiting to be demolished and rebuilt as a supermarket. During this time it was regularly being broken into, mainly by child vandals. Contractors employed by Littlewoods knew about the vandals but neither defendant nor police were informed about them. Finally, a fire was deliberately started by vandals which spread and caused serious damage to C’s property.

Vandals Since vandals would not be worth suing, C sought compensation from Littlewoods, claiming that defendants should have prevented vandals gaining access to cinema. C’s claim failed.

content of the duty: risk has to be weighed against measures necessary to eliminate it and short of posting a 24-hour guard over property defendants would not have been in a position to prevent vandals getting in. To require such a measure would impose an intolerable burden.

Hint 10

Vandals caused fire inside cinema

Front 11

Mitchell v Glasgow City Council [2009] UKHL 11

Back 11

HL held that liability for criminal act of a third party would arise only where person who was said to be under that duty had by their words or conduct assumed responsibility for the safety of person who was at risk.

The question here was whether local authority had assumed a positive duty to protect one of its social housing tenants who, following a long campaign of abuse and threats, was murdered by a fellow tenant.

Although local authority had been aware that victim’s neighbour might resort to violence after being informed that he risked being evicted, the required element of a relationship of responsibility was absent; it would not be ‘fair, just and reasonable’ to impose this duty on a public authority coping with an onerous burden of anti-social behaviour among tenants.

Hint 11

Anti-social behaviour amongst tenants of social housing

Front 12

Capital & Counties (Capco) v Hampshire County Council [1997] 3 WLR 331 (HL)

Back 12

Three conjoined appeals in actions against emergency fire services:

Capital & Counties (Capco) v Hampshire County Council

A fire broke out in building owned by the claimant . fire brigade arrived and turned off sprinkler system. They then had difficulty in locating the seat of fire during which time fire became out of control. By the time firemen had located the seat of the fire Block A of the building had collapsed and spread to blocks B & C. They then reactivated the sprinkler system however, by now it was so damaged as to not work effectively. In the event the entire building was completely destroyed causing loss of £16M. Had the sprinklers not been switched off it is likely blocks B & C would have been saved.

John Munroe v London Fire Brigade

A special effects technician caused an explosion on wasteland which adjoined C’s land which contained Industrial premises. Burning debris from the explosion caused small fires to break out. The fire brigade were called and extinguished fires on the wasteland but failed to check C’s premises.

Church of Jesus Christ v West Yorkshire Fire

A fire broke out in a classroom adjoining the Chapel. fire services were called and arrived promptly. However, firemen were unable to fight the fire due to lack of water supply. Four of 7 hydrants surrounding church were faulty and a further 3 were not located in time to fight the fire. Consequently both classroom and chapel were destroyed. C brought an action for breach of statutory duty based on Fire Services failure to inspect the hydrants.

Held:

No duty of care was owed in John Munroe v London or Church of Jesus Christ v West Yorkshire, however, a duty of care was owed in Capital & Counties v Hampshire since fire brigade’s action in turning off the sprinklers increased the damage.

Hint 12

Claims against fire brigade

Front 13

Kent v Griffiths [2001] QB 36 (CA)

Back 13

CA decision concerning negligence, particularly duty of care owed by emergency services: ambulance service. emergency services do not generally owe a duty of care to public except in certain, limited circumstances (Hill v Chief Constable of West Yorkshire [1989]). issue was whether an ambulance service owe a duty of care to those relying on its services.

CA held: It was 'reasonably foreseeable' that C would suffer further illness if an ambulance did not arrive promptly. C and defendant were 'sufficiently proximate' once the LAS accepted call and dispatched an ambulance, and a specific duty of care was established; there being no good reason for it failing to arrive within a reasonable time, this duty was breached.

It was 'fair, just and reasonable' to allow a duty of care to exist between an ambulance service and its patients with regards to promptness of pickup (and presumably, return to hospital) where no good reason for delay is offered.

LAS submitted that to establish this duty of care was against public policy considerations which in previous cases had limited duty of care of the police, fire brigade and coastguard. Lord Woolf distinguished ambulance service as different - despite answering 999 calls, it is part of health service and thus shares health service's duty of care to those in tortious proximity; he deemed it relevant that it only has to deal with victim at scene, and is not having to act with 'concern to protect the public generally', unlike fire and police services (ignoring coastguards in this reasoning).

=> Coastguard would be the same as the ambulance service. C in OLL Ltd v SoS for Transport did not appeal, but if he would have, the higher court might have found the Coastguard owed a duty of care. In any event, this case would have been a good opportunity for CA to find that the OLL Ltd case was wrongly decided (overrule), and that the Coastguard did owe a duty of care.

=> Doesn’t the fire brigade also respond to individual calls?

=> Ambulance service assumed responsibility for C when it accepted the 999 call, but how does this compare with Michael where HL found that police did NOT assume responsibility for C when it accepted the 999 call even though it said it will send out a car?

Hint 13

Patient suffered asthma attack and ambulance arrived late

Front 14

OLL Ltd v Secretary of State for Transport [1997] 3 All E.R. 897 (HC)

Back 14

This case shows that Her Majesty's Coastguard do not usually owe a duty of care to people who require its assistance.

Her Majesty's Coastguard (HMCG) had failed to respond in an adequate period of time to emergency calls concerning a group of schoolchildren canoeing off coast of Dorset who had encountered difficulties, three of whom later died. canoe hire company (OLL Ltd) settled several claims with victims and was seeking a contribution from Secretary of State for Transport under whose remit HMCG falls as an executive agency.

The issue boiled down to whether coastguard owed a duty of care to those it was aware required its assistance (other cases had held that police and firefighters did not owe such a duty).

HC held that HMCG did not owe a duty of care to those requiring its assistance unless they actively made situation worse, rather than by omission, as the case here. As such, claim was dismissed and hire company were forced to foot the bill for the entirety of compensation. However, this case did not reach the appeals courts: CA and HL and so this rule could easily change, should a further, similar case, reach higher courts.

Hint 14

Schoolchildren went canoeing and 3 died when something went wrong