Tort Law I – Omissions & Duty of Care

Definition of Omission

• Omission ≙ Failure to Act
  • A person does not perform an act that a reasonable person would have performed in the same circumstances.
  • Query in negligence: Did the defendant’s omission cause the claimant’s harm / loss / injury?

General Rule – No Liability for Pure Omissions

• Default position: No duty of care is owed for failing to act.
• Stovin v Wise $[1996]$ $3$ WLR $389$ (HL)
  • Facts
  • Claimant (motor-cyclist) hit by defendant’s car emerging from a junction.
  • Visibility obstructed by an earth bank topped with a fence.
  • Trial judge → Driver $70\%$ liable; Norfolk County Council $30\%$ liable for not removing the bank.
  • Holding (HL)
  • Council not liable; omission only.
  • Accident statistics: only $3$ accidents in $12$ years (< Council’s “cluster site” trigger of $5$ in $3$ years).
  • Distinction: statutory duty to act vs. statutory power to act.
  • Lord Hoffmann – Policy Rationale
  • Positive acts vs. omissions:
    • Law readily requires care when one chooses to act.
    • Harder to compel a person who is “doing nothing” to prevent harm by others or natural causes.

Moral vs. Legal Duty – Illustrative Scenario

• Bystander A sees a child drowning.
  • No legal obligation to rescue → no liability for inaction.
  • If A does attempt a rescue and does so negligently, liability arises.
• Highlights the perceived harshness of the rule and the moral–legal gap.

Exceptions – When a Duty to Act (and Liability) Arises

• Four principal categories:
  1. Undertaking / Assumption of Responsibility
  2. Special Relationship
  3. Control of Third-Party Wrongdoer
  4. Control of Land or Dangerous Things

1. Undertaking / Voluntary Assumption

• When D voluntarily accepts responsibility and later omits to perform it → liability.
• Barrett v Ministry of Defence $[1995]$ $1$ WLR $1217$
  • Facts
  • Naval officer celebrates $30^{th}$ birthday, becomes dangerously drunk, collapses.
  • Senior officer orders a Petty Officer to take him to bunk and “look after him”.
  • Limited checks; officer dies overnight.
  • Decision
  • No duty to prevent claimant becoming intoxicated before unconsciousness.
  • Duty arose once responsibility assumed; breach in failing to supervise adequately.
  • MOD liable.

2. Special Relationship (Pre-Existing Proximity)

• Categories: parent–child, employer–employee, teacher–pupil, public authority–public.
• Home Office v Dorset Yacht $[1970]$ AC $1004$
  • Borstal officers asleep → trainees escape, damage yachts.
  • Held: Home Office owed duty; proximate relationships both with detainees and yacht owners.
  • Rationale: Control imports responsibility; escape and damage foreseeable.
• Additional Illustrations
  • Carmarthenshire CC v Lewis $[1955]$ AC $549$ – Teacher owed duty; child ran into road, lorry driver swerved & died.
  • Malaysian: Zazlin Zahira $[1994]$ $35$ MLJU $1$ – Teacher not liable; injury not reasonably foreseeable, adequate supervision provided.
  • Employer–employee: Charlton v Forest Printing Ink (referenced, details not in transcript).
  • Public authority–public: Pemeriksa KK Motor v KS South Motor (referenced only).

3. Control of Third-Party Wrongdoer

• Where D exercises actual control over the person who inflicts harm.
• Carmarthenshire CC v Lewis (above) – Teacher liable through control of child.
• Hill v Chief Constable of West Yorkshire $[1989]$ AC $53$
  • Facts: “Yorkshire Ripper” murder; police allegedly failed to apprehend sooner.
  • Held
  1. Police can be liable for direct negligent acts/omissions causing injury.
  2. No general duty to apprehend unknown criminals.
  3. No duty to individual victims absent special added risk.
  4. Exception: where police action/inaction creates exceptional added risk beyond general public exposure.
  • Policy: Avoid defensive policing & resource diversion.

4. Control of Land or Dangerous Things

• Occupiers or controllers must not create or permit dangerous situations.
• Smith v Littlewoods $[1987]$ AC $241$
  • Cinema left empty; vandals start fire → neighbour’s property damaged.
  • Pure omission; unforeseeable without knowledge; $24$-hour guard = disproportionate burden → No duty.
  • Emphasised need for “something more” than foreseeability to create proximity.
• Haynes v Harwood $[1935]$ $1$ KB $146$
  • Horses left unattended; boy throws stone, horses bolt; policeman injured rescuing others.
  • Defendant liable – created source of danger in busy street.

Public-Authority–Specific Applications

Ambulance Service vs. Police & Fire Brigade

• Kent v Griffiths (London Ambulance Service) $[2000]$ $2$ WLR $1158$
  • $999$ call; ambulance delayed $38$ minutes; claimant pregnant, asthmatic, suffered respiratory arrest & miscarriage.
  • Held: Duty owed to individual patient once call accepted.
  • Healthcare context: proximate, foreseeable harm.
  • Police / fire brigade analogies rejected.

Malaysian Public-Authority Examples

• Parimala v Projek Lebuhraya Utara Selatan $[1997]$ $4$ AMR $3274$
  • Stray cow on highway; collision fatal.
  • Highway operator liable – failed to repair fence hole.
• Sri Inai v Yong Tit Swee $[2003]$ $1$ AMR $20$ (CA)
  • Landlord owes duty to visitors of tenant; omission to maintain safe premises → liability.

Comparative Table – When Liability Attaches for Omission

• No Duty (General Rule)
  • Pure non-action with no assumption, relationship, control, or created danger.
  • Example: Bystander ignores drowning child.
• Duty Exists where at least one factor below is present:
  1. Undertaken responsibility (Barrett).
  2. Special relationship proximate enough (Dorset Yacht, parent/child, teacher/pupil).
  3. Control over tortfeasor (Carmarthenshire, Dorset Yacht).
  4. Creation or control of dangerous situation (Haynes, highway fence, landlord defects).
  5. Statutory or contractual obligation (ambulance service healthcare duty).

Ethical & Policy Themes

• Balancing individual autonomy (freedom not to act) against community protection.
• Avoiding “opening the floodgates” and deterring socially useful activities (policing).
• Ensuring resource allocation remains with democratically accountable bodies, not courts.
• Encouraging assistance (moral impulse) vs. punishing non-rescue (legal compulsion).

Connections & Exam Tips

• Always identify: (1) duty – does an exception apply? (2) breach – standard of care? (3) causation – “but for” test & remoteness.
• For public authorities, discuss policy/operational dichotomy and proximity.
• Quote Lord Hoffmann’s dictum in Stovin v Wise when analysing omissions.
• Use Malaysian authorities to show local application and possible divergence from UK law.