Duty of Care: Acts v Omissions and Third Party Liability

‘Exceptional’ duty of care scenarios

1. Liability for Omissions

2. Liability for the Acts of third parties

3. Public Authority Liability

Misfeance v Nonsfeasance

A positive act that makes things worse (misfeasance)

An omission, simply failing to confer a benefit to the claimant (nonfeasance)

Stovin and Wise [1996]

A large mound of dirt obstructed the driver’s view of a junction, colliding with the Claimant.

The defendant brought in the council, and it was found that the council committed an omission. Case established there was ‘no liability for ‘pure’ omissions.

“The distinction is based on a recognition that it is one matter to require a person to take care if he embarks on a course of conduct which may harm others. He must take care not to create a risk of danger. It is another matter to require a person, who is doing nothing, to take positive action to protect others from harm for which he was not responsible, and to hold him liable in damages if he fails to do so...”

Lord Leggat and Lord Burrows in Tindall v Chief Constable of Thames Valley Police 2024 UKSC - general principle from Tindall

“...the tort of negligence draws a fundamental distinction between acts and omissions or, in the more illuminating language adopted in recent years, between making matters worse (or harming) and failing to confer a benefit (or to protect from harm). As a general rule, a person has no common law duty to protect another person from harm or to take care to do so: liability can generally arise only if a person acts in a way which makes another worse off as a result.”

Gorringe v Calderdale MBC [2004] 1 WLR 1057

C took a bad turn on a surprise tight turn, where the SLOW sign on the road had faded away, meaning she collided with a bus and suffered serious injury.

The Lords said that this was an omission.

“An individual who has suffered damage because of some positive act which the authority had done to make the highway more dangerous could sue in negligence...in the same way he could sue anyone else. The highway authority had no exemption from ordinary liability in tort. But the duty to take active steps to keep the highway in repair was special to the highway authority and was not a private law duty owed to any individual. Thus it was said that highway authorities were liable in tort for misfeasance but not for nonfeasance.”

Lord Roger - “When [the slow sign was erased], the situation returned to what it had been before the defendants decided to exercise their statutory powers by painting it in the first place. They were not under any common law duty to exercise their power to repaint it and are not liable because, for whatever reason, they did not do”

Tindall v Chief Constable of Thames Valley Police 2024 UKSC 33 (facts)

Tindall hit a patch of black ice on a tight country lane, meaning his car rolled into a ditch, he calls the police and gets help from an ambulance.

The police place a slow sign on the road until Mr T is in the ambulance, but take it with them when they leave. About 15 minutes later (on his way back from the hospital) Mr T collides with another car, leading to Mr T’s death.

Mr T’s estate brought a case against the police. The police claimed this was an omission and they had ‘failed to confer a benefit’ and had no idea Mr T was trying to

Reasons why the court may be reluctant to impose a duty of care

• A wish to avoid imposing so called ‘crushing’ liability on a particular individual or class of defendants (‘liability in an indeterminate amount for an indeterminate time to an indeterminate class’ Ultramarine’s Corporation v Touche, Niven & Co [1931])

• Prevent a ‘flood’ of claims, which may clog up or slow down the tort system as a mechanism for compensation.

• Wish to avoid the more negative aspects of deterrence, the danger of ‘overkill’

• The courts may recognise that in some circumstances there is nothing wrong with the sort of harm the defendant has caused - that is it is sometimes entirely reasonable to act in ways that leave others worse off

Peter Cane and James Goudkamp argue the main function of the duty of care element in the tort of negligence is to

‘define the boundaries of liability for damage caused by negligent conduct by reference to what are commonly ‘policy considerations’… to say that a person owes a duty of care means (and means only) that the person will be liable for causing damage by negligence in that situation’

Lord Atkin’s Neighbour Principle, Donoghue v Stevenson

‘You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then, in law, is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question’

Foreseeability

Basic test for a duty of care

The claimant must fall within a class of individuals put at foreseeable risk by the defendant’s action.

Duties of care are claimant - specific - the defendant does not owe a duty of care to the world at large

E.g Haley v London Electricity Board
- finding for the claimant, it held that the question of whether harm was reasonably foreseeable needed to factor in the characteristics of all those who might reasonably be expected to walk along the pavement (including blind pedestrians)

Exceptions to the General Rule of no liability for omissions

• Creation of a Source of Danger/Risk

• Undertaking responsibility for the claimant

• Special Degree of control

• Occupation of an office or position of responsibility

Creation of a Source of Danger/Risk

The peculiarity of fire brigades, together with other rescue services...is that 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...but where the rescue/protective service itself by negligence creates the danger which caused the plaintiff’s injury there is no doubt...the plaintiff can recover

Stuart Smith LJ Capital & Counties PLC v Hampshire CC [1997]
- failure to arrive by fire department

Undertaking responsibility for the claimant

Where the defendant has had the positive duty to protect the claimant, and they have failed to do that.

There is a pre-existing relationship that allows us to say that this is different and special.

Watson v British Boxing Board per Lord Phillips MR [2001]

Watson v British Boxing Board [2001]

Claimant was a boxer, registered to BBB, who were responsible for providing certain resuscitation equipmeant ringside. The claimant was hit so bad that he needed specialist equipment, after arriving to hospital by ambulance, he had suffered serious brain damage.

Claimant argued BBB had assumed responsibility for his welfare and that they had a responsibility to ensure the correct equipment was provided ringside.

The court agreed with the claimant
- “In my judgement there is a clear distinction between the role of the Board and the role of a fire service or the police service. The latter have the role of protecting the public in general against risks, which they play no part in creating. There is a general reliance by the public on the fire service and the police to reduce those risks…In contrast the injuries which are sustained by professional boxers are the foreseeable, indeed inevitable, consequence of an activity which the Board sponsors, encourages and controls. The conduct of the activity of professional boxing carries with it, for the small body of men that take part in it, the need for the provision of medical assistance to treat the injuries that they sustain.’

Kent v Griffiths (2001)

Court found that ambulance service were responsible for arriving late to a patient (asthmatic) known to the ambulance, with no reasonable explanation.

The ambulance service had assumed the responsibility for the claimant and the claimant had relied on the ambulance to their detriment. This is called a special relationship.

“Once a call to an ambulance service has been accepted, the service is dealing with a named individual upon whom the duty becomes focused. Furthermore, if an ambulance service is called and agrees to attend the patient, those caring for the patient normally abandon any attempt to find an alternative means of transport to the hospital” - Lord Woolf MR

Sherrat v Chief Constable of Greater Manchester Police (2018)

High Court Decision!!!

Judge sided with the claimant, police claimed omission for failing to do a welfare check on the claimant’s mentally ill daughter, who had committed suicide.

‘It is thus clear that the starting point for the Recorder’s determination of the preliminary issue was his finding of fact in two respects. First that the Mother had been given a specific assurance by the call handler that (a) the police would respond to what was an emergency by forthwith dispatching officers as a priority step and (b) that if required a transfer to hospital would be arranged by the police rather than the Mother [the matters going to assumption of responsibility for the welfare of Deceased]. Secondly, that the Mother would have taken other steps to aid the Deceased (calling an ambulance herself; soliciting the assistance of others; making her own way to the house) if she had not been given the assurance [the matters of fact going to reliance]’ - The Honourable Mr Justice King

Barret v Ministry of Defence [1995]

Is reliance necessary for the exception of assumption of responsibility?

Claimant (in the military) was very intoxicated after an organised event, the commanding officer ordered him to be taken to bed. In bed, he choked on his own vomit and died. The son was too drunk to manifest reliance in this state.

The court still permitted, it is enough in these circumstances, for the responsibility of reliance to be present.

‘In the present case…when the defendant assumed responsibility for him, it accepts that the measure taken fell short of the standard reasonably to be expected. It did not summon medical assistance and its supervision was inadequate.’ - Beldham LJ

Special Degree of Control

‘The duty of a very unusual one, arising from the complete control which the police or prison authorities have over the prisoner, combined with the special danger of people in prison taking their own lives’ - per Lord Hoffman in Reeves v Commissioner of Police for the Metropolis (2000)

Reeves v Commissioner of Police for the Metropolis (2000)

Victim was suicidal and called the police for help, psychiatrist claimed he did not have any suicide risk at the time. Within 10 minutes alone in a cell, the victim hung himself with his shirt and a gap in the door.

The House of Lords said this was not a regular omissions scenario.
‘The duty of those who are entrusted with his custody is to take reasonable care for his safety while he remains in their hands. If it is known that he may engage in self-mutilation or suicide while he is in their custody, their duty is to take reasonable care to prevent him from engaging in these acts so that he remain free from harm until he is set at liberty. This duty is owed to the prisoner if there is that risk, irrespective of whether he is mentally disordered or of sound mind. It arises simply from that fact that he is being detained by them in custody and is known to be at risk of engaging in self-mutilation or of committing suicide’ - Lord Hope

Occupation of an Office or Position of Responsibility

Coming about simply because of the defendants position or obligation

• Parents and Children

• Teachers and Pupils

• Doctors and Patients

• Employers and Employees

Harris v Perry [2008] EWCA Civil 907

Position of responsibility exception - Parents and Children

‘the issue was what positive steps would a reasonable parent take for the safety of a child of the claimant’s age playing on a bouncy castle. The answer to this question must depend critically on the risks that the reasonable parent ought to foresee would be involved in the use of the castle.’

Carmarthenshire County Council v Lewis [1955]

Position of responsibility exception - Teachers & Pupils

This responsibility reduces as the pupil ages

Barnett v Chelsea and Kensington HMC (1969)

Position of responsibility exception - Doctors and Patients

Three men presented to the hospital with an upset stomach, the doctor told them to sleep it off. It turned out to be arsenic poisoning and two of the men died.

Issue was whether there was a special relationship when the doctor did not actually see the patients. - The court said once the names and symptoms are given to the hospital.

‘The duty is slightly different in Barnett…It is to determine the duty of those who provide and run a casualty department when a person presents himself at that department complaining of illness or injury and before he is treated and received into the hospital wards…This is not a case of casualty department which closes its doors and says that no patients can be received. The three watchmen entered the defendants’ hospital without hindrance, they made complaints to the nurse who received them and she in turn passed those complaints on to the medical casalty officer…Is there, on those facts, shown to be created a relationship between the three watchmen and the hospital staff such as gives rise to a duty of care in the defendants which they owe to the three men?’ - Neild J