Duty of Care: Omissions

Duty of Care: Omissions

The general rule is that there is no liability in negligence for a mere omission, i.e. for failing to confer a benefit on someone. For example, failing to shout a warning to a blind person about to walk off a cliff or failing to save a child drowning in a shallow pond. This is a restriction at the duty in law stage of the negligence enquiry.

Making things worse and not making them better

To clarify the scope of the no liability for omissions rule, it is helpful to look at the difference between making things worse and not making them better.

For the most part, it is quite obvious whether the claimant has caused damage to the claimant by a positive act or merely failed to confer a benefit on a claimant by not acting. For example, the difference between me negligently pushing you into a pool of water on the one hand and on the other hand, me seeing you in the pool of water and failing to pull you out. A helpful rule of thumb is to take the defendant out of the situation altogether. Then ask whether the claimant is better off. If the claimant would not be better off, it is probably an omissions case.

I am intentionally drawing a distinction between causing harm (making things worse) and failing to confer a benefit (not making things better), rather than the more traditional distinction between acts and omissions, partly because the former language better conveys the rationale of the distinction drawn in the authorities, and partly because the distinction between acts and omissions seems to be found difficult to apply.

          CN v Poole BC [2019] UKSC 25, [2019] 2 WLR 1478 at [28] (Lord Reed DP)

There are two situations that seem like omissions cases but are actually examples of the standard situation of positive action causing harm.

(i) Third-party reliance

These are cases where the defendant positively causes the claimant damage because the defendant's conduct dissuades or prevents a third party from going to the claimant's assistance. Imagine a swimmer gets into difficulty on a crowded beach. Someone gets into the water, making it look like they will save the swimmer but then callously swim by. At this point, it is too late for someone else to save the swimmer. If the beach had been empty, this would be an omissions case.

(ii) Claimant reliance

Sticking with the drowning swimmer example. Imagine person drowning thinks the person jumping in will rescue them, so they swim towards them instead of to a nearby sandbank. Here the claimant relies on the defendant, so this is also a case of the defendant positively causing the claimant damage.

Three exceptions to the general rule

(i) Assumption of responsibility

Assumption of responsibility is by far the most important exception. This is where the defendant has assumed a responsibility towards the claimant, which obliges him to take reasonable steps to confer a benefit on the claimant. In practice, an assumption of responsibility will give rise to reliance either by a third party or by the claimant. Where that reliance is present, the case is one of additional damage rather than a pure omissions case. Where there is reliance, there is no need to justify liability on the assumption of responsibility.

Assumption of responsibility is a genuine exception because there are cases where liability is imposed even where there is no reliance. For example, a doctor stopping and assisting someone unconscious on the pavement with no-one else around. There is no reliance by the claimant as the claimant is unconscious. There is no reliance by third parties as there is no-one else around.

          Barrett v Ministry of Defence [1995] 1 WLR 1217

Although authorities of a naval base were not obliged to help a sailor that had collapsed due to drunkenness. Once they took control of things by taking him to his barracks, an obligation was imposed to check on him. Thus, they were liable where the sailor then choked on his vomit and died.

          Barrett v London Borough of Enfield [1999] 3 WLR 79

The local authority social services department was held liable for neglecting a boy that had been taken into the local authority's care.

There are other examples of situations where there is an assumption of responsibility. Where a child drowns in a shallow pool, the childminder would be liable. A lifeguard would be liable in the case of a swimmer in difficulty.

(ii) Occupiers of land

The second exception is occupiers of land who are under a positive common law duty to take reasonable steps to prevent a danger on their land from damaging their neighbour's property.

          Goldman v Hargrave [1967] 1 AC 645

An occupier of land in the Australian bush was held liable for not doing more to prevent a fire caused by a lighting strike spreading from his property to his neighbours. This was an omissions case because he did not cause the fire. Thus, he was under a positive obligation to take reasonable steps to prevent the fire from spreading to his neighbours land. This case was pleaded in negligence, but subsequent cases such as Leakey v National Trust have been decided in nuisance. This case is an example of the overlap you can get between negligence and the nominate torts. Occupier cases are often now sued in nuisance, but the underlying liability is for negligence.

The justification for this exception to the no liability for omissions is the occupier of land's right to prevent entry to their property. As the occupier of land could prevent the neighbour from doing anything about the danger himself, the law imposes a positive obligation on the occupier.

The law could create a limited right to enter contingent on the occupier failing to act. Still, there are problems with this and English law has decided to impose a positive obligation on the occupier.

(iii) Parents?

It is undecided whether natural parents have a positive tort law duty to confer a benefit on their children. It has been held in the following case that foster parents do have such a duty.

          Surtees v Kingston-upon-Thames BC [1991] 2 FLR 559

In Armes it was held that where a defendant such as a school or a council is acting in loco parentis, they have a such a positive duty.

          Armes v Nottinghamshire CC [2017] UKSC 60, [2018] AC 355 [40]–[41]

Where a defendant such as a school or a council is acting in loco parentis, they have a such a positive duty.

This question has not been tested in the courts. Still, it is likely that if such a case did arise, the courts would find that natural parents have such a positive duty based on their status as parents. This would be based on their status as parents as it is debatable whether parents assume a responsibility to their kids when they chose to have them.

The liability of public authorities for omissions

In essence, the question is whether public authorities should be treated differently or whether they should be treated the same as any other defendant. This issue is a particular issue where Parliament has given a statutory duty or power to a public authority. The question is whether this should make an issue to the negligence analysis.

The liability of public authorities for omissions is where most of the action is happening in this area. The question is whether the no liability for omissions rule applies with equal force in cases where a public authority defendant is sued for failing to confer a benefit on a claimant through the exercise of a statutory duty or power. For example, if a public authority could have conferred a benefit on a claimant by exercising a statutory duty or power that Parliament has either imposed or conferred on the authority. Should the public authority's failure to do so be actionable in negligence.

(i) The effect of Gorringe

There was a time when it was held that public authorities might owe a duty of positive action in negligence, even where a private party would not owe such a duty.

The key case here is Anns v Merton LBC, this case has similar facts to Murphy v Brentwood which was discussed concerning pure economic loss.

          Anns v Merton LBC [1978] AC 728

Parliament conferred a power on a local authority to inspect the foundations of buildings under construction. The House of Lords held the existence of this power could give rise to a positive obligation in the law of negligence towards downstream purchasers of such buildings. Private parties would not be liable to downstream purchasers for failing to inspect the foundations of buildings under construction. Still, the public authority was liable because Parliament had conferred a power on the authority to inspect the foundations. The positive duty in negligence is based on the existence of the statutory power.

Sometime after Anns, the courts began to row back on the liberal approach taken in Anns. A critical case is Stovin v Wise.

          Stovin v Wise (Norfolk CC, third party) [1996] AC 923

In this case, Lord Hoffman expressed his disagreement with the liberal approach to this question taken in Anns. He believed that the court in Anns had gone too far, and a more restrictive approach would be appropriate. Still, Lord Hoffman did not rule out grounding a common law duty of care on a statutory power in exceptional cases.

          Gorringe v Calderdale MBC [2004] UKHL 15, [2004] 1 WLR 1057

The House of Lords went even further in Gorringe than in Stovin. The House of Lords held that in the absence of circumstances that would generally give rise to a positive obligation in common law, a public authority will not be liable for an omission in negligence. Essentially, the liability of public authorities for omissions is the same as individual liability for omissions.

On the facts of Gorringe, a highway authority could not be liable in negligence for failing to paint a 'SLOW' sign on a road to warn of a hidden danger. This was despite the fact that the public authority was under a statutory obligation to promote road safety.

          Michael v Chief Constable of South Wales Police [2015] UKSC 2, [2015] AC 1732

A woman made an emergency call reporting a threat to kill her, and she was murdered before the police got to her house. A majority of the Supreme Court held that the police did not owe a duty of care to the woman. That means that the police are not under a positive obligation to the maker of an emergency call in tort law.

Thus, the liability of a public authority in negligence is now based on ordinary private law principles. So the public authority must have caused additional damage or assumed a responsibility towards the claimant. Barrat v Enfield above is an example of an assumption of responsibility by a public authority giving rise to a positive obligation.

Public authorities generally owe no duty of care towards individuals to confer a benefit upon them by protecting them from harm, any more than would a private individual or body.

          Robinson v CC West Yorkshire [2018] UKSC 4, [2018] AC 736 [35] (Lord Reed)

          CN v Poole BC [2019] UKSC 25, [2019] 2 WLR 1478

Where there is no assumption of responsibility, local authorities owe no common law duty of care arising from their statutory obligations to safeguard children in their area.

So Michael, a police case, and CN v Pool, a local authority child protection case, both set out the very clear general principle set out in Gorringe — if the situation is not one where the common law would impose a positive obligation anyway, a public authority is not going to be liable in negligence. To bring a case against a public authority in negligence for failing to confer a benefit on you, you have to show that the authority would be liable anyway on the application of ordinary private law principles. Thus, you have to show either that the public authority assumed a responsibility towards you or that the case is actually one of additional harm caused by the public authority.

(ii) The application of ordinary private law principles

The claimant reliance principle means that a public authority can be liable when the claimant relies to her detriment on an express or implied representation that the authority makes. If the public authority in Gorringe had placed a sign that said it was safe to overtake when it was not, and the claimant crashed, the public authority is potentially is liable.

For the purposes of the claimant reliance principle, a representation can be implied from the general pattern of a public authority's conduct. Say the public authority operates a lighthouse and creates an expectation in mariners that the lighthouse will alert them to danger. If the public authority turned off the lighthouse without warning, this could also come within the claimant reliance principle.

The courts have not really followed the logic of the principle of reliance on the general pattern of the authority's conduct to its conclusion in the public authority context. Take Gorringe for example, it could be argued that the highway authorities induce reliance by their general pattern of conduct in putting up warning signs. Equally, compared with Michael, the police indicate that if we are under a threat of violence, they will respond. If the police force did not exist, we might take other measures to defend ourselves.

There is quite a lot of confusion or lack of clarity about how the application of the assumption of responsibility works in public authority cases. The discussion of this in the Michael case is seriously inadequate: Lord Toulson leaves it unclear if there are situations where the police would be considered to have assumed a responsibility to the maker of a 999 call. He seemed to leave open the possibility that a duty might be owed and said it might depend on what the 999 operator said.

If the duty depended on what the operator said, police forces would simply tell their operators to be careful about what they say. Clearly, basing a duty on what is said in an emergency call is not a good approach.

There is also the difficulty of reconciling Michael with the earlier appeal decision in Kent v Griffiths. Here the court held that when a call to the ambulance service is accepted, the ambulance service comes under a positive obligation to answer the call. It could be argued that the ambulance service is an offshoot of the NHS as acts in the interests of individual patients, whereas the police and fire brigade act in the interests of the public as a whole.

There is further discussion of public authorities' liability for omissions in negligence in the two articles below. Lord Reed, in Poole, also gave some more guidance on the approach to take in assumption of responsibility cases.

          Nolan, The Liability of Public Authorities for Failing to Confer Benefits (2011) 127 LQR 260

          Tofaris and Steel, Negligence Liability for Omissions and the Police [2016] CLJ 128

The rationale of the general no-liability rule

There is a similar rationale for the general no liability rule for omissions rule as with the rights-based justification for the no recovery rule in pure economic loss. The potential claimant's interest is much weaker, and there is a greater threat to potential defendants' autonomy.

As Honore argues, the potential claimant's interest is weaker because harmful omissions are less culpable than wrongful acts. While wrongful acts constitute inroads on security, omissions threaten only the expectation of improvement, which Honore argues is a separate and secondary value. Essentially, our interests are more seriously threatened by people positively causing us harm than people failing to help us.

The great value placed on security explains why making someone's position worse is for good reason seen as worse than not making it better. The latter threatens not security so much as the expectation of improvement, which is a different but secondary value ...

          Honoré, Are Omissions Less Culpable? in Cane and Stapleton (eds), Essays for Patrick Atiyah (1991) 51

The point can be illustrated through two hypothetical societies. First, imagine a community where everyone positively tries to harm you. Then, imagine a community where it is guaranteed that no-one will positively try to harm you; but, it is also guaranteed that no-one will try and rescue you if something happens to you. The community where no-one will confer a benefit on you is clearly the much better community to live in. Thus, it is clear that the potential claimant's interest is weaker in omissions cases.

The likely impact of an omissions duty of care on potential defendants' freedom of action is also more significant. Duties of positive action are greater threats to individuals' autonomy than duties to act carefully. Because instead of the law saying if you choose to do X, you have to do it with reasonable care; in an omissions case, the law says you have to do X rather than Y or Z that you might instead like to do at that moment.

The general rule against liability for omissions seems to be based on the combination of the lower interest of potential claimants and the higher autonomy cost to potential defendants. These two arguments mean we should be careful about imposing these duties, they do not mean that we shouldn't have these duties at all.

It should be noted that the autonomy argument carries little weight in the context of public authority defendants. While there may be instrumentalist justifications for giving public authorities freedom of action: they may be more effective as public authorities. But, they do not have an intrinsic autonomy interest worthy of protection in its own right.

          Steel, Rationalising Omissions Liability in Negligence (2019) 135 LQR 484

The Steel article helps explore the distinction between acts and omissions cases and explores some of the justifications put forward for the no liability rule.