Negligence: Duty of Care

What is the difference between act and omission?

“Omission is failing to confer a benefit (not making things better) while an act is causing harm (making things worse” — Lord Reed in CN v Poole BC

What does an omission refer to in negligence?

A failure to protect the victim from harm caused by 3rd parties, themselves (e.g. illness), or natural causes.

What is the line between acts and omissions?

“Can be blurry” — Lord Nicholls in Stovin v Wise

According to Lord Nicholls in Stovin v Wise, what does the acts vs omissions distinction depend on?

How broadly one looks when deciding whether the omission is a ‘pure’ omission or is part of a larger course of activity set in motion by the D.

What is the omissions rule in negligence? (2)

Robinson:

• No duty of care arises for omissions unless there is an assumption of responsibility.

• BUT a duty of care generally arises in respect of positive acts.

What normative justifications for the omissions rule did Lord Hoffmann give in Stovin v Wise?

3 justifications:

1. Political

2. Moral

3. Economic

How do courts distinguish acts from omissions? (2)

• By considering how broadly the D’s conduct is characterised.

• An omission may be part of a wider activity.

Give 1 example of something that is not a pure omission

A driver failing to brake at a junction—the omission forms part of the act of driving.

What is the political justification for the omissions rule given by Lord Hoffmann?

It is “less of an invasion of freedom” to require people to consider the safety of others than to impose a duty to protect or rescue.

What is the moral justification for the omissions rule given by Lord Hoffmann?

The “why pick me?” argument — many people could intervene, so it is unclear why one should be liable.

What is the economic justification for the omissions rule given by Lord Hoffmann?

Tort of negligence deters against behaviours with social costs, whereas helping others does not create the same positive externality.

What are the 4 exceptions to the omission rule?

Smith v Littlewoods:

1. Relationship between D and C which gives rise to an assumption of responsibility by D towards C.

2. Relationship of control by D over a 3rd party who caused the damage.

3. D created or permitted to be created a source of danger.

4. D failed to remove a known source of danger that he did not create or permit to be created.

Is assumption of responsibility limited to omissions?

NO — It also applies to pure economic loss, negligent misstatements, and negligent professional services.

Why is assumption of responsibility described as quasi-contractual / different to other general tort principles?

Because it is relational, owed only between D and C, not to the world at large.

When is a D deemed to have assumed responsibility towards C in cases of dependence?

Where the C is taken under the care of the D and is unable to protect himself.

Give 4 examples of dependence creating a duty of care

1. Police liable for failing to prevent a mentally ill person in custody from committing suicide (Kirkham)

2. Mental hospital liable for failing to prevent patients from committing suicide (Savage)

3. School psychologists liable for failing to diagnose special needs of students (Phelps v Hillingdon)

4. Doctor liable for failing to warn patient of material risks of treatment (Montgomery)

What is important about the C’s status in dependence cases?

It is important that C must be deemed to be taken under the care of D.

What principle was established in Barrett v Ministry of Defence? (3)

• Once care is undertaken, responsibility is assumed, even if no general duty initially existed.

• While the Navy is not under a general responsibility to prevent its employees from excessive drinking, once an officer provides care to a drunk soldier he has assumed responsibility towards him.

• The officer who took care breached duty by failing to monitor the deceased’s condition and not calling for medical assistance.

Can a contractual relationship create an assumption of responsibility?

YES

Which case illustrates contractual assumption of responsibility?

Stansbie v Troman — D (renovator) was under duty to owner to lock the door of C’s when away. → D was liable for negligence.

Give a case example regarding assurances and contractual-like duty

Calvert v William Hill Credit Ltd — assurances that betting account will be closed was tantamount to contract except for the lack of consideration, imposing a duty to implement exclusion.

How can representations or assurances create a duty of care?

Where the D gives a representation or assurance to the C that something will be done — Calvert v William Hill

What was held in Calvert v William Hill Credit Ltd? (2)

1. Betting company provided assurances that C’s betting account would be closed.

2. Held to be tantamount to contract except for lack of consideration and D had a duty of care to close the account.

Which case shows liability arising from an assurance? (2)

Kent v Griffiths:

1. Ambulance operator assured the ambulance was on its way and would reach by a target time.

2. Ambulance service was liable for the delay in arrival.

Which case shows NO liability without an assurance? (2)

Michael v Chief Constable of South Wales Police:

1. Police operator responded to an emergency call but did not provide any assurance of time of arrival.

2. Police were NOT liable for the delay because they owe no general duty to the public for timely response in the absence of an assurance.

What additional requirement must be shown for liability after reliance on an assurance?

(1) C relied on the assurance/representation given by D, and (2) the loss was caused by that reliance

Give a case regarding the additional requirement that must be shown for liability after reliance on an assurance

Calvert v William Hill — although D owed a duty to close the account, there was no causation as C would have opened an account elsewhere anyway.

When can an assumption of responsibility arise through control?

When the D controls a 3rd party whose actions directly caused damage to C.

What were the facts and decision in Carmarthenshire CC v Lewis? (2)

1. A child in a nursery ran out of the premises and caused a car accident.

2. HELD = Nursery was negligent for leaving the gate to the road unlocked.

What were the facts and decision in Home Office v Dorset Yacht? (3)

1. Borstal boys escaped from premises and caused damage.

2. HELD = Borstal officers were negligent for failing to control the boys who were under their custody.

3. Lord Pearson: added that a parent can also be liable for the actions of their child in the same manner.

When can D be liable for a source of danger? (2)

Smith v Littlewoods:

D can be liable for:

1. Causing or permitting to be created a source of danger where it is reasonably foreseeable that 3rd parties may interfere and spark off the danger; and

2. When having the knowledge or means of knowledge that a 3rd party has created the danger, failing to take reasonable steps to prevent such a danger.

What example from Smith v Littlewoods demonstrates when no duty arose? (2)

1. Facts: D left an empty cinema unguarded. → Teenagers broke in and started a fire that damaged neighbouring buildings.

2. HELD = No duty of care arose because the empty cinema on its own could not be considered a source of danger + D was not informed about the fire risk.

Give 1 case example of creating a source of danger by leaving dangerous property unattended (2)

Haynes v Harwood:

1. Facts: D left a horse-drawn cart unattended in a crowded street.

2. HELD = D owed a duty towards the policeman injured while stopping the horse.

Give 1 case example of liability for failure to remove a source of danger (2)

Goldman v Hargrave:

1. Facts: D (landowner) failed to put out a fire on a tree on his land struck by lightning. → Fire spread to C’s land.

2. HELD = D was liable for failure to remove the source of danger.

Give 3 reasons why public authorities have historically been treated differently from private parties in negligence claims

1. Public authorities are granted statutory powers or duties.

2. Taxpayer-funded so compensation and litigation costs would be borne by taxpayers;

3. As part of the executive govt, public authorities should have discretion to exercise powers and should not be hamstrung by extensive tortious duties.

What followed from those beliefs historically about public authorities?

Public authorities were once subject to certain special principles laid down in case law, but those principles have since been rejected.

What did Lord Hoffmann hold regarding statutory powers?

Stovin v Wise — Lord Hoffmann held that it was possible that a duty of care could arise from the fact that the public authority had either the statutory duty or statutory power to intervene.

What 2 things must be proven in a case involving failure to exercise a statutory power before deriving a duty?

Must prove that:

1. It was irrational not to use the statutory power; and

2. There were exceptional grounds for compensation.

Can statutory powers ALONE create a duty of care? (2)

• Gorringe v Calderdale — NO:

• HELD = Parliament could not have intended statutory powers and duties to give rise to duties of care in negligence when no private action was granted in respect of them.

What was the policy/operations distinction? (4)

• Lord Wilberforce in Anns v Merton HELD:

• Inappropriate for Courts to impose a duty of care on a public authority in relation to policy decisions, but not inappropriate to impose a duty of care on operational areas.

• This is because policy actions are not justiciable, whereas operations are reviewable by courts.

• This distinction was rejected in Stovin v Wise as being too elusive and unworkable.

What is the current approach to public authorities in negligence?

• Robinson v Chief Constable of West Yorkshire Police

• Michael v Chief Constable of South Wales Police

• SC clarified that public authorities are subject to the same ordinary principles of negligence as private Ds.

Do public authorities owe duties for omissions?

Only where recognised exceptions (e.g. assumption of responsibility) apply — Same as ordinary principles.

What is the conclusion about special responsibility and protection from liability for public authorities? (2)

• No special responsibility by virtue of its statutory duty.

• Pressures on it do not justify protection from liability.

Are policy considerations still relevant for public authorities? (3)

• YES — still relevant in novel cases.

• YES — public authorities have the benefit of certain policy considerations unique to them. → e.g. In Michael, Lord Toulson took into account that compensation and litigation costs would increase the police budget burden

• BUT, these considerations do not grant them a special immunity from negligence.