Negligence - omissions and acts of third parties

What is the ordinary stance in relation to omissions?

Ordinarily you can be liable only for things that you do, not things you don’t do. However, when someone doesn’t do something that they ought to do, perhaps because of the relationship between the parties concerned, then a duty might be found.

Outline the exclusionary rule

This rule operates to prevent a duty being owed in respect of omissions.

Smith v Littlewoods [1987] - the ‘common law does not impose liability for pure omissions’. If no duty exists, there is no liability.

This general position has been restated many times in Stovin v Wise [1996].

State the three exceptions to the general exclusionary rule

1. Control

2. Assumption of responsibility

3. Creation (or adoption) of risks

What do we mean by control?

It is those situations where it is arguable that the defendant should owe a duty to the claimant because they exercise a high degree of control over them, or has express responsibility for them, like a parent/carer.

How does this overlap with the second category?

The exception also extends to situations where it can be said that the defendants, because they exercise control over the person harmed, owe them a positive duty to take steps to ensure they are not harmed by themselves or by anyone else.

What case is exemplary of this first exception?

Reeves v Commissioner of Police for the Metropolis [2000] - police’s duty to prisoners in custody extends to a positive duty to take reasonable steps to assess the suicide risk, justified by the degree of control over prisoners in custody.

This is for the police to take the reasonable steps to asses whether a prisoner posed a suicide risk, less about treating all prisoners as a suicide risk.

What do we mean by assumption of responsibility?

When said to have assumed responsibility, seems obvious that positive obligations (in the form of a duty of care) would arise. This would be relationships like those out of a contractual or employment relationships (such as in Costello v Chief Constable of Northumbria Police [1999]).

How is another way that someone can assume responsibility for the wellbeing of someone else?

Another way that someone can assume the responsibility of someone else is through their actions. What someone does in relation to someone else can indicate, by conduct, an assumption of responsibility.

This is exemplary in Barrett v Ministry of Defence [1995]

What do we mean by creating or adopting risks?

When a defendant - even accidentally - creates a dangerous situation, a positive duty to try and deal with that danger may be imposed (e.g. in Capital & Counties plc v Hampshire County Council [1997]).

What is the general rule in terms of liability for acts of third parties?

There is no general duty to prevent other people causing damage.

What are the four circumstances in which liability will rise for the acts of third parties?

1. When there is a special relationship between the defendant and the claimant

2. When there is a special relationship between the defendant and the third party, such as a relationship of control or supervision

3. When someone creates a ‘source of danger’ that may be ‘sparked’ by a third party.

4. Where there is a failure to take steps to abate a known danger created by a third party.

Explain the first circumstance

When there is a special relationship between the defendant and the claimant

Where the defendant and the claimant have a special (pre-tort) relationship, that is a relationship in which a sufficient degree of proximity, or an assumption of responsibility, can be found to justify the imposition of a duty of care from one to the other, a duty may arise in relation to the activities of a third party.

Such relationship may be defined by a contract between the parties, such as in Stansbie v Troman [1948].

Where can the requisite proximity also stem from?

The requisite proximity may also stem from an express or implied undertaking made by the defendant to the claimant, such as if the defendant promised not to do something that may endanger the claimant in some way (e.g. in Swinney v Chief Constable of Northumbria Police [1997]).

It is also evident that there must be a direct undertaking by the defendant for a duty to arise in the circumstances (e.g. Hill v Chief Constable of West Yorkshire [1989], Osman v Ferguson [1993]). These cases show a general duty to the public at large, but not to the specific claimants.

Expand more on the idea of the specific undertaking

Palmer v Tees Health Authority [1999] - the necessary proximity didn’t exist between the criminal and the victims.

What was argued following Palmer?

It was argued in K v Secretary of State for the Home Department [2002] that in situations where ‘exceptionally serious’ risks are posed by a known third party, sufficient proximity could exist between an injured claimant and a defendant whose negligence fails to prevent the harm occurring.

Explain the water case

Poole Borough Council v GN [2019] - no assumption of responsibility, despite the knowledge of serious anti-social behaviour and violence from a neighbouring family towards the (child) claimants in council-arranging housing.

What about the AS1 case?

In Michael v Chief Constable of South Wales Police [2015] - where counsel for the claimant raised an exception to the general rule on omissions as one ground of appeal, arguing that the police could be said to have assumed responsibility for Ms Michale’s safety after the 999 call, but the SC leading judgement saying that assumption of responsibility could not and should not be established.

Explain the second circumstance.

A special relationship between defendant and third party

A special relationship here means proximity. The more proximate the relationship between the defendant and the third party who caused the damage or harm, the more likely it is that a duty will be imposed on the defendant in respect of the third party’s actions.

Proximate relationships in this context include those where there is a degree of control exercised over the third party by the defendant, or where it can be said that the defendant has ‘assumed responsibility’ for the third party’s actions.

What case is this illustrated in?

Home Office v Dorset Yacht Co Ltd [1970] - a duty arose because the actions of the boys following their negligent supervision were the thing ‘very likely to happen’.

Explain the third circumstance

Creating a source of danger

If a third party’s actions exacerbate a dangerous situation originally created by the defendant, subsequently causing the claimant harm, the defendant may owe the claimant a duty of care.

For example, in Haynes v Harwood [1935] - the defendant owed him a duty of care, as he had created a source of danger that was ‘sparked’ by the third parties.

For a duty to arise in these circumstances, a special risk must be created.

Explain the fourth circumstance

A failure to abate a known danger

Here, we consider the situation where the danger is in fact created by a third party, but the defendant does nothing to abate it. Unknown or unknowable dangers don’t fall here.

The defendant has to basically do something about the danger in order to prevent injury (to the person or property) to others.