Duty of Care in Pure Omissions cases Flashcards
General rule
No liability for pure omissions (Smith v Littlewoods).
Owners of property had poor security, vandals broke in, set fire and spread to neighbours’ houses. No duty especially given that there was no reason to suspect a fire risk.
Stovin v Wise
Local auth had no duty to remove earthen bank which obscured drivers’ view.
3 reasons:
Political - More of a invasion of freedom to require you to act positively than it is to stop you from doing certain harmful acts.
Moral - ‘Why pick me argument’
Economic - Tort of negligence exists to deter behaviour with social costs which create negative externalities. No such justification exists for creating positive duties.
Michael v Chief Constable
Police handler told lady she would transfer call to South Wales Police - MADE NO PROMISES of police arriving. Lady gets killed - can her family claim?
No - police do not owe a duty of care to specific members of the public, for acts of third parties, no exception to be made just because they are police.
Call handler had said nothing to give rise to an assumption of responsibility, ie in Kent v Griffiths which prevented her from taking alternative means of protection
N v Poole
Claimants alleged they were owed a duty by the council to protect them from abuse suffered from their parents.
Held: No duty of care, existence of statutory powers and duties does not give rise to a common law duty of care. Public authorities to be held to the same standard as private individuals/bodies.
They had not assumed responsibility for the children’s safety or welfare (ie by taking them into care or fostering them)
Assumption of responsibility is ‘an undertaking, express or implied’ that reasonable care will be taken
HXA v Surrey - Similar facts, Poole applied.
Robinson’s 4 situations where duty may be found
(i) A has assumed a responsibility to protect B from that danger
(ii) A has done something which prevents another from protecting B from that danger
(iii) A has a special level of control over that source of danger
(iv) A’s status creates an obligation to protect B from that danger
Mitchell v Glasgow City Council
Housing authority failed to protect claimant killed by their neighbour, even though they knew he was a threat and was angry after they held a meeting.
Held: No assumption by the council and they are not liable for the acts of a third party
Capital and Counties plc v Hampshire County Council
Fire brigade’s statutory powers cannot be converted into a common law duty, and it does not come under a duty of care by merely attending to fight the scene.
However, where the fire brigade by their negligence created danger or caused injury, claim available.
Reeves (Assumption)
Man (L) committed suicide in police custody.
L was a known suicide risk, and officers possibly negligent in leaving open the hatch of his cell door, which would allow him to tie his shirt to it and strangle himself.
Held: Suicide not a novus actus. In rare situations, a duty is owed to persons to prevent them from self harm. Applied here due to police’s control over prisoners, and they had been negligent with the latch.
Phelps v Hillingdon (Assumption?)
Educational employees might owe a duty of care to pupils where it could be foreseen that they may be injured if skill and care not exercised.
Here, there was failure to diagnose learning difficulties and provide special education for them.
Barrett v Enfield London Borough Council (Assumption of responsibility)
Local authority owes a duty of care to a child for whom it is responsible (the child is in care) to make arrangements for the child’s future, and can be sued in negligence if this is breached.
Essentially local auths can be held liable for acts and omissions in relation to children in their care.
Kent v Griffiths (D’s involvement prevents alternative means of protection or assumption)
Ambulance service can owe a duty of care to an individual member of the public once they have received the phone call and details of the person.
Caparo applied and duty found
Different situation to police and fire service, since they serve to protect the general public whereas Ambulances (like hospitals) serve individuals.
Tindall (Preventing alternative means of protection/assumption?)
Icy road, driver warning others, police arrived, driver left, police put up sign and cleaned debris then took the sign down and left.
No other steps taken to warn traffic or alert others.
C’s accident took place a little while later.
Held:
Interference principle - duty of care to not make matters worse by acting in a way which creates an unreasonable and reasonably foreseeable risk of physical injury.
This can include acts which put off or prevent someone from taking steps to protect the claimant.
However, for the duty to arise it also needs to be shown that the defendant knew or ought to know it would have that effect, and on facts there was no evidence police knew or ought to have known the original driver was warning others.
Control over or responsibility for a third party
Home Office v Dorset Yacht - Young offenders escaped police control and smashed up ferry.
Held duty is owed to take such care as is reasonable to prevent boys under their control from causing damage to private property.
Status as an exception
Goldman v Hargrave - Duty of care on occupiers when a hazard to their neighbour arises to do what is reasonable to remove or reduce the hazard -
here lightning struck a tree, spread to neighbour’s house after homeowner felled the tree but didn’t extinguish.
Haynes v Harwood (Control over source of danger)
D can be liable for leaving horses unattended on busy street.
Police owe general duty of care to protect life and property and it was foreseeable that harm would result in trying to stop the horses, hence the injuries sustained in doing so were a direct consequence. Volenti didn’t apply as constable did not voluntarily agree to the risk but did it pursuant to his official duty.
Sumner v Colborne
Highway auth did not owe duty to highway users to cut back vegetation next to highway which interfered with drivers’ views in absence of any positive act.
Policy reasons to deny a duty here - would encourage growth in claims by drivers’ insurers against owners of land next to highways where visibility was an issue, which would be costly with little gain.
Gorringe
Public authorities do not owe a greater duty than that owed by civilians - they are to be held to the same standard. Existence of statutory powers or duties does not create a duty at common law.
Rushbond
D, an architect, entered building for inspection and forgot to shut the door.
This was not a pure omission, as he positively made things worse by opening the door and leaving it unlocked. He owed a duty to take reasonable precautions as to security, which he breached.
Justiciability as a factor relevant to considering public auth liability
Certain things may not be within court’s remit eg ruling on how a government department should spend its money on hospital placement (stated in Barrett v Enfield)
Smith v MOD - No duty of care in decisions made in active hostilities, unsure whether any duty in high-level political decisions
Public policy - defensiveness argument
Will people stop performing their job as effectively as they are worried about incurring liability?
In Hill, was seen as an important factor however the Michael decision did not discriminate in this regard and treated them in same regard as civilians. It did note financial implications and effect on domestic violence investigations though.
X v Bedfordshire - considered that local auths may become more defensive and cautious.
Barrett v Enfield - Should be given little to no weight.
N v Poole - No weight, duty can be owed by local auths to children who they come into contact with.
