Tort A - Liability for Omissions

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What is the general rule for omissions?

The general rule in negligence is that someone is NOT liable for an omission, an omission being a failure to act, such as omitting to put out a fire. 


The law draws a distinction between a positive act that causes harm and a mere failure to prevent harm from arising. THERE IS NO LIABILITY FOR THE LATTER. 

Sometimes there is difficulty in drawing the line, eg, a motorist causing an accident by failing to stop at a red light is an omission, but this cannot be considered in isolation from the positive act of driving. So we must consider whether the omission can be seen as having been in the COURSE OF DOING A POSITIVE ACT. 

Sutradhar v National Envrionment Research Council - mere failure to test the water for arsenic

Famously said by Lord Keith that there is no liability for one who forebears to shout a warning when watching another about to walk off a cliff with his head in the air.

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The defendants had acquired a disused cinema intending to develop the land, but vagrants occupied the building. On two occasions, small fires had been started using rubbish left lying outside the cinema, but these fires had not been reported to the defendants nor to the police. One evening, the cinema was set on fire, damaging the plaintiff's neighbouring property. They said that the defendants ought to have prevented the fire. It was held that while the defendants were under a duty to prevent their property from becoming a source of danger to neighbourin property, on the facts, this duty did not extend to controlling the activities of vagrants. Because they had not known about the previous fires it was not reasonably foreseeable that fire would start damaging neighbouring property. 

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Their Lordships held that a local authority was not liable for its failure to prevent financial loss caused by a defective extension. They had negligently failed to supervise the building works, but this was to ensure that public funds were well spent and did not have to protect individuals from the financial consequences of poor workmanship. 

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OSTERLIND V HILL [1928] American case

The defendants let out a canoe to a drunk person, who paddled to the middle of a lake where the canoe overturned and he started to drown. The defendant saw this and did nothing, and the claimant died. He was held to be negligent in letting out the canoe to a drunk person, but not for his failure to rescue him as there is no obligation to rescue someone. There is no liability or no duty of care to warn people of risk nor to rescue them. 

However, in civil law jursdictions, a duty is imposed in criminal law to rescue on occasion. 

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Policy concerns?

CAUSAL PROBLEMS - prove that a failure to act caused the harm? Cannot prove that someone would have lived if you attempted to save them.

MORAL OBJECTION - free to choose what you want to do and exercise your own autonomous choices. Duty to save would constrain individual autonomy. 

WHO TO SUE? - many people could rescue, who would you sue? Simply the richest person


BURDENSOME AREA of responsbility; what is the standard expected?

If a duty to save were imposed this would not deter the person causing the harmful situation, people would stop taking care for their own safety as they could just blame someone else. 

Economically efficient

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There are exceptions to the rule of omissions. 

INDUCED RELIANCE is when you do something that makes someone rely on you, giving rise toa  duty even if it is simply an omission. 

Griffiths had a severe heart attack and phoned the ambulance. The controller told him the ambulance was coming to take him to hospital, but it never came and he died. It was held that Griffiths had reasonably relied on the ambulance to save him and they had induced reliance and there was therefore a clear duty of care owed

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Watson severely injured during a boxing match. Held duty of care owed because Watson had reasonably relied on their expertise in providing medical treatment to the boxers. They had induced reliance. 

Is it reasonable for the claimant to rely on the defendant in each case?

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Control over property can give rise to a duty of care. Liability to visitors according to the Ocuupiers' Liability Act 1957.

Liability to trespassers? Duty of care much lower. Question of foreseeability. In this case a 6 year old girl was electrocuted by the defendant's railway line. She had entered the property through a fency which had been pushed down. The defendant knew of this fence defect. The trespasser was allowed to recover. 

Only a requirement to take reasonable steps to allow trespassers to avoid risks. Occupiers' Liaiblity Act 1984. 

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GOLDMAN V HARGRAVE [1967] (Australian case Privy C

In some cases, there can be a duty owed as an occupier of land to prevent and reduce hazards to prevent damage to neighbouring property.

If it is possible to perceive that a hazard might cause damage to their property and you could do something about it there may be liability. In this case, lightning set fire to a tree which consequently begins to smoulder. Although the defendant had the means to put the fire out, he let it burn out itself. The fire whipped up, spreading to the neighbour's adjoining property and burning it down. Liability was owed. 

The defendant must have knowledge of the danger, the damage must be a foreseeable consequence, and there must be the ability to abate the danger. 

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Assumption of responsibility?

In order for a duty of care to be owed under English law, a prior relationship of care must exist between the defendant and the person being rescued. 

There is no duty to rescue, but where a rescuer CHOOSES TO INTERVENE, he or she canot be liable in negligence unless it can be said that the INTERVENTION HAS MADE THE CLAIMANT'S POSITION WORSE THAN IF THERE HAD BEEN NO INTERVENTION. 

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An off-duty pilot in Norway drank himself into a coma. He was found and taken to his room where he later choked on his own vomit and died. The Court of Appeal held that there was no duty to stop an adult drinking alcohol, but once the defendant had found the pilot and moved him they had assumed responsbility for him. They had been negligent in not calling for medical assistance and for not putting him in the recovery position. Once they decided to act they had an obligation to get it right and not make the situation any worse. But the pilot was attributed 25% of the blame of his death; contributory negligence.

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A suicidal prisoner committed suicide whilst in detention. The police were held responsible and the claim was allowed because the police had known he was suicidal and had assumed responsibility to protect him.

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Drummond and the claimant's husband were involved in a long-running dispute as tenants of the local authority. Drummon was summoned to a meeting with the local authority where he was told he would be evicted. Upon his return, he killed Mitchell. it was held that the local authority was NOT liable for the death as foreseeability alone is not enough to justify a duty of care and it was not fair, just and reasonable to impose a duty upon the council. They had not assumed responsibility for the claimant's welfare and could not be held liable. 

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Position of responsibility?

A parent for a child

Doctor for a patient

Captain for a passenger

Lifeguard to a swimmer

Police to a prisoner

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A mother ran a bath for her small child, who burnt her feet. The court said there was no duty of care owed by a parent on the grounds that it is not fair, just or reasonable to impose a duty of care in circumsances within the home which are part of the rough and tumble of everyday life where children are almost bound to get hurt. 

The courts are reluctant and cautious about imposing duties of care for omissions

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XA V YA [2010]

During the plaintiff's childhood he was beaten by his father. The child brought a claim against the mother in negligence for her failure to protect him. The courts held it was not appropriate to impose a duty of care on a parent to prevent another parent hurting them when she may expose herself to hurt. It was not fair, just and reasonable to impose a duty of care. 

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AGAR V HYDE [2000] Australian case

Do sporting bodies owe a duty to players?

Agar sued the International Rugby Board following an incident whilst taking part in a scrum which collapsed, causing two players to suffer broken necks and paralysis. He argued there should be a change to the rules to make scrumming safer. However, it was held to be simply an omission to change the rules of rugby, and there was no duty held to be owed. 

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The referee had control of the scum. He had assumed responsbility for the safety of the players. He should have taken steps to prevent injury by making sure the inexperienced player did not have to take part in a scrum.

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COLE V SOUTH TWEED HEADS [2004] (Australian case)

Does a licensee owe a duty to an intoxicated person?

There was an event at a rugby league bar. A woman drank a lot and the bar stoppped serving her. She got aggressive. They offered to call her a taxi, but threw her out. She got hit by a car and was seriously injured. 

The bar were not held liable as there was no imposition of a duty of care. Drinking is a question of personal autonomy. It is your own choice and you must accept responsibility for you decisions. Too difficult to judge if people had drunk too much. No duty to stop an intoxicated person.

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Some friends had a drink at a bar. A motorcyclist leaves his motorbike at the hotel and asks his wife to pick him up, giving the keys to the barman. Later, he changes his mind, asking for the keys back. The barman asked if he was okay to drive, but he got aggressive, rode home, crashed into a tree and died. The bar was sued, but it was held that they were not liable. You cannot require a barman to stand between an angry drunk man and his keys. You have to allow drunk people to make their own autonomous decisions.

This was similar to the decision in Calvert v William Hill. Even though there was argued assumption of responsbility, ultimately, it is an autonomous decision to gamble/drink and people must take responsibility for their own actions. 

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Does a hospital owe a duty to a psychiatric patient?

A murderer killed someone and was arrested and jailed. He brought a claim against the health authority for failing to keep him and look after him which caused him to commit his offence. The court held that there was no duty of care to prevent him from committing an intentional act and there was no duty owed to a psychiatric patient to keep them inside to ensure there would be no offence. 

This again comes down to a question of autonomy. A personmust be responsible for their own actions and cannot shift liability onto anyone else. 

In order for there to be an assumption of responsibility in omissions cases it is clear that there needs to be a substantial amount in order to justify it taking over personal autonomy. 

There is also an exception to the general rule of omissions that if the defendant creates the danger then they are under a duty to help the claimant.

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