Obligations, Tort - Negligence, Acts and Omissions

Omissions, no-liability justifications and Sutradhar v National Environmental Research Council [2006]

Omissions (failing to act) are usually differentiated from positive acts, and usually only create liability for pre-existing relationships. Pure omissions carry no duty.

This is justified in Stovin v Wise (1996) - undue invasion of personal liberty (essentially forcing people to protect others from harm), ‘why pick on me?’ for specific people being chosen, and economic inefficiency for public bodies who will become defensive against risks (ultimately costing more in taxes).

Sutradhar v National Environmental Research Council [2006] - British Geological survey had tested water and ruled it safe from the toxins they tested for. C got sick from arsenic in the water, which was not tested for - courts ruled no liability, ad they could not be held negligently liable for something they did not test for.

The Good Samaritan

Once someone acts, they are acting under a duty of care - though courts are very slow to find these people negligent. They are held to the standard of care of rescuers, not medical professionals, etc. This includes what any reasonable person would do, and generally carries no liability unless they make things worse

Exceptions for omission non-liability - Assumption of liability, Rabone v Pennine Care NHS Trust (2012), Barrett v Ministry of Defence (1995) and parent-child responsibility

Assuming responsibility for someone’s wellbeing and safety applies here.

Rabone v Pennine Care NHS Trust (2012) - ‘voluntary’ patient in a mental health unit was given weekend leave after depression and suicidal ideation. She killed herself, and doctors found liable.

Barrett v Ministry of Defence (1995) - Pilot in Navy got very drunk at a celebration, and an officer ordered him to be sent to bed, but did not order anyone to watch him - he vomited and asphyxiated in his sleep. By sending him to bed, the officer (acting on behalf of the MoD) assumed responsibility, and was liable.

Parenting is not specifically under negligence, but presumably would simply over cover when the child was under your care, not harming it.

Exceptions for omission non-liability - Control in Reeves v Commissioner of Police for the Metropolis [2000], Orange v Chief Constable of West Yorkshire Police [2001], and Carmarthenshire County Council v Lewis [1955]

Reeves v Commissioner of Police for the Metropolis [2000] - A prisoner known to be a suicide risk used his shirt to hang himself in police custody, after they failed to assess and protected against suicide risk - control establishes duty of care.

Orange v Chief Constable of West Yorkshire Police [2001] - A man in police custody hung himself with his belt, though he had seemed sound of mine and showed no suicidal tendencies. No duty established as he was not high suicide risk - policy may have also influenced the tightening of liability.

Carmarthenshire County Council v Lewis [1955] - Nursery age child escaped into road, causing a fatal collision and almost being hit. Council and nursery were jointly in control of child, and preventing it from becoming a hazard. Duty found.

Exceptions for omission non-liability - Creation or adoption of risks

D creating a dangerous situation (even accidentally) means they have a duty to deal with it - see Capital & Counties pls v Hampshire County Council [1997].

Liability for acts of third parties - Special relationship between parties, Stansbie v Troman [1948] and Mitchell v Glasgow City Council [2009]

Ds are not generally liable for acts of third parties.

Stansbie v Troman [1948] - Decorator left house unlocked and jewellery was stolen. The contractual relationship was sufficient to give rise to a duty of care to prevent the loss of the owners.

Mitchell v Glasgow City Council [2009] - tenant was subject to harassment and abuse from another tenant in council housing. They did nothing, and one tenant murdered the other - but council did not have positive duty to manage antisocial behaviour, since it would take time, funded by taxes.

Liability for acts of third parties - Special relationship between D and 3rd party in Home Office v Dorset Yacht [1970]

Home Office v Dorset Yacht [1970] - Young offender were detained, but allowed a weekend’s leave on an island. After escaping from their custodian, they damaged some yachts in a yacht club - duty of care established as the custodians had control over those in their custody = necessary proximity.

Liability for acts of third parties - Creating a source of danger, Haynes v Harwood [1935] and Topp v London Country Bus [1993]

This applies to when the third party exacerbates the danger.

Haynes v Harwood [1935] - police sued owner of a rowdy horse which caused injury after children threw stones at it. Owners were liable as they introduced the danger, and the children triggered it.

Topp v London Country Bus [1993] - minibus owner left car outside a pub with keys in ignition, but owed no duty of care when it was stolen and involved in a pedestrian fatality, since it was no more a danger than any other car on the road.

Liability for acts of 3rd parties - Failing to remove danger created by a 3rd party and Smith v Littlewoods [1987]

This only applies to known or knowable dangers where D ought to have acted to negate harm.

Smith v Littlewoods [1987] - owners of a derelict cinema found not liable after vandals set it alight, damaging neighbours’ property. They could not have reasonably foreseen the building being set on fire, and any preventions would have been disproportionate to the risk.

Public bodies’ liability

Usually protected for policy reasons, and for the use of socially-funded sources to be found liable with several Cs when defences cost tax money even after payouts. This would draw money from essential resources, and could lead to defensive practices - they should act in a way they see fit, not to avoid being sued.

Public bodies’ liability - Fire Service and Capital & Counties pls v Hampshire County Council and other cases [1997] (CA)

Capital & Counties pls v Hampshire County Council and other cases [1997] (CA) - services responded to a call, and an officer told crew to turn off sprinkler system, letting the fire spread. There is no positive duty to respond to a call, but there is one to not make things worse (they caused more damage) - this is their only duty to private citizens, there are more to the public.

Public bodies’ liability - Ambulance services and Kent v Griffiths [2001] (CA)

Ambulance services have a duty to respond to calls, but courts do consider the difficult nature of some decisions, such as when limited resources and locality mean resources are redirected, or in mass casualty situations.

Kent v Griffiths [2001] (CA) - GP called an ambulance for a pregnant woman having an asthma attack. It took 38 minutes to arrive, during which she stopped breathing - this resulted in psychiatric injury and a miscarriage. Courts found liability as the service is ran by the NHS, which has a positive duty, in comparison to the fire service, which has a duty to the good of the public as a whole.

Public bodies’ liability - Police services, Hill v Chief Constable of West Yorkshire (1989) and Michael v Chief Constable of South Wales Police [2015]

Similar to the fire brigade - there is a duty to general public, not private people. There are distinctions between operational negligence (injury or property damage) and policy decisions (prioritisation, etc).

Hill v Chief Constable of West Yorkshire (1989) - mother of last victim of Peter Sutcliffe (‘the Yorkshire ripper’) sued police for investigating negligently and causing her daughter’s death for not catching him sooner - it was reasonably foreseeable that not catching him would lead to deaths, but not that it would be her as the victim. There was no duty found, since there was no proximity between the killer and victim (could have been literally any woman in the Yorkshire area).

Michael v Chief Constable of South Wales Police [2015] - M was killed by ex-partner after calling 999 to report his threats. Police were aware of previous DA incidents, but downgraded the priority - no liability was found due to a lack of proximity.

Public bodies’ liability - Police services, Brooks v Commissioner of Police for the Metropolis [2005] and Tindall v Thames Valley Police [2024] (SC)

Brooks v Commissioner of Police for the Metropolis [2005] - B was a friend of Stephen Laurence and was present at the attack. He was treated as a perpetrator by police, and sued, believing they had a duty to provide reasonable support for him. It was rejected for policy reasons, since the omission regarded investigative decisions.

Tindall v Thames Valley Police [2024] (SC) - a car crashed due to black ice, and warned others to slow before police and ambulance arrived, taking warning signs with them when they left. Another crash occurred later the same night, killing T - family sued as police had stopped initial driver warning cars and taken responsibility for the scene. It was rejected as police could not have known of the driver’s efforts, and attended to clean up, not assume liability for the scene.