Tort Law I - Omission

Omission in Tort Law

Definition

  • An omission is the failure to do something.
  • A failure to act can form the basis of a negligence action if a reasonable person would have acted under similar circumstances.
  • An action in negligence may arise if the defendant's omission injured the plaintiff.
  • Key Question: Did the defendant's omission cause harm, loss, or injury to the plaintiff?

General Rule: No Liability for Omission

  • General rule: There is generally no liability for an omission.
  • Case: Stovin v Wise [1996] 3 WLR 389 (House of Lords)
    • Facts: The plaintiff suffered serious injuries when his motorcycle was hit by a car driven by the defendant, who pulled out of a junction with obstructed visibility.
    • The trial judge found the defendant 70% responsible and Norfolk County Council 30% responsible for not addressing the dangerous junction.
    • The council knew the junction was dangerous but had not taken steps to make it safe.
    • Held: The House of Lords held the council not liable because the issue related to an omission.
    • The number of accidents (three in twelve years) did not qualify the junction as a 'cluster site' under the council's policy, which required five accidents in three years to prioritize funding.
    • A distinction was made between a statutory duty (requiring a service) and a statutory power (allowing action but not requiring it).
    • Lord Hoffman's view: Omissions require different treatment than positive conduct because imposing a duty to prevent harm from third parties or natural causes is a different matter from requiring care when undertaking an activity.

Example Illustrating the General Rule

  • A person who sees a child drowning is not legally obligated to save the child and incurs no liability for failing to do so.
  • However, if the person attempts to save the child but acts carelessly and causes harm, they become liable.
  • This rule might seem harsh, as there may be a moral obligation to act, and the law needs to consider this.

Exceptions: Situations Where a Duty of Care May Arise for Omissions

  • The law imposes a duty of care in specific situations, and liability may arise for omissions.
    1. Undertaking
    2. Special Relationship
    3. Control of Third Party
    4. Control of Land or Dangerous Things
1. Undertaking
  • If a defendant agrees to act or voluntarily accepts responsibility, their failure to fulfill that responsibility can lead to liability.
  • Case: Barrett v Ministry of Defence [1995] 1 WLR 1217
    • Facts: The plaintiff's husband, a Navy officer, became extremely drunk at a Naval base bar, was taken to his bunk by a Petty Officer, and later found dead.
    • The trial judge held the MOD liable due to the relaxed attitude towards excessive drinking at the base.
    • The MOD appealed, arguing no duty of care existed to prevent intoxication.
    • Held: The MOD was liable because once the senior officer took responsibility by ordering the Petty Officer to look after him, a duty of care arose.
    • The MOD breached this duty by failing to ensure the deceased received appropriate supervision.
2. Special Relationship
  • A legal duty to act exists where there is a special relationship between the parties:
    • Parent & Child: Carmarthenshire CC v Lewis
    • Employer & Employee: Charlton v Forest Printing Ink
    • Teacher & Pupil: Zazlin Zahira
    • Public Authorities & Public: Pemeriksa KK Motor v KS South Motor

Case Example: Home Office v Dorset Yacht [1970] AC 1004 (House of Lords)

*   **Facts:** Borstal trainees escaped custody due to the alleged negligence of the officers in charge and damaged the plaintiff's yacht.
*   The Home Office argued against liability to the public for acts of third parties.
*   The court addressed who should bear the loss caused by the officers' carelessness.
*   **Held:** A duty of care existed due to a special relationship between the Home Office and the borstal boys, and the Home Office and the yacht owners.
*   The Home Office's control over the boys implied responsibility, and it was foreseeable they would escape and cause damage.
3. Control of Third Party
  • A duty of care for omissions may arise if there's an existing relationship with the wrongdoer that involves control.
  • Case: Carmarthenshire County Council v Lewis [1955] AC 549
    • Facts: A child ran from his nursery school, and a lorry driver swerved to avoid him, resulting in a fatal accident.
    • Held: The county council and school teachers were jointly in control of the child and had a duty to prevent him from endangering others.
    • Parents and teachers have a duty to act responsibly for the children's behavior when they have assumed care.
4. Control of Land or Dangerous Things

Case Example: Smith v Littlewoods Organisation Ltd [1987] AC 241 (House of Lords)

*   **Facts:** The defendant owned a cinema that was empty and unattended, and vandals broke into it and started a fire, damaging the plaintiff’s property.
*   The plaintiff argued the defendant should have prevented the vandals from accessing the cinema.
*   **Held:** The claim failed because it was a case of pure omission.
*   There is no general duty of care to prevent a third party from causing damage.
*   Preventing the fire would require a 24-hour guard, an intolerable burden on the owners.
*   Mere foreseeability of damage is insufficient for liability; closer proximity is needed.

*Case example: Haynes v Harwood [1935] 1 KB 146

*Facts: The defendant left a horse-drawn van unattended in a crowded street. The horses bolted a police officer tried to stop to save a woman and children to were in danger. The police officer was injured.
*Held: The defendant owed a duty of care as he had created a source of danger by leaving his horses unattended in a busy street.

Public Authorities and Omissions

  • Case: Hill v Chief Constable of West Yorkshire [1989] AC 53

    • Facts: The plaintiff's daughter was murdered, and the plaintiff claimed the police were negligent for failing to apprehend the murderer, who had committed previous offenses.
    • Issues:
      1. Do the police owe a general duty of care to apprehend an unknown criminal?
      2. Do the police owe a duty of care to individual members of the public who suffer injuries due to a criminal's activity?
    • Held: The appeal was dismissed.
      1. The police can be liable in tort to persons injured by their acts and omissions.
      2. However, the police do not owe a general duty of care to apprehend an unknown criminal.
      3. The police also do not owe a duty of care to individual members of the public who suffer due to criminal activity.
      4. Exception: when failure to apprehend the criminal creates an exceptional added risk, establishing sufficient proximity.
    • The case set a precedent for the general duty of care of the police to prevent crime and accidents.
      *Case example: Kent v Griffiths and the London Ambulance Service and Others [2000] 2 WLR 1158

    *Facts: The plantiff was pregnant and dialed 999 because she was having an asthma attack she suffered a respiratory arrest as the ambulance took 38 minutes to arrive and suffered a miscarriage, substantial memory impairment, personality change.
    *Issue: Do the ambulance service owe a duty of care to the public at large?
    *Held: The apellate was dismissed. The ambulance service is part of the healthcare service that owe a duty of care to patients. The patient was alone and it was foreseeable that claimant would suffer if the ambulance was delayed.

Malaysian Cases

  • Case: Parimala v Projek Lebuhraya Utara Selatan [1997] 4 AMR 3274

    • Facts: A driver died after colliding with a stray cow on a highway.
    • Held: The defendant, responsible for highway maintenance, was liable for failing to repair the fence through which the cow entered.
      *Case: Zazlin Zahira Hj Kamarulzaman dan satu lagi lwn Louis Marie Neube Rt Ambrose a/l J Ambrose dan lain-lain [1994] 35 MLJU 1

    *Fact: The Pf, aged 7 year old, fell and broke her right hand while participating in music lesson.
    *Held: Injury couldn't be foreseen, teacher provided reasonable supervision and didn't carelessly expose the pupil to the injury.
    *Case: Sri Inai v Yong Tit Swee [2003] 1 AMR 20

    *Held: Landlord owed a duty of care to the lawful visitors of a tenant to ensure that the premises safe, attracted liability if there was omission ensure the safety of premises.