Duty of Care Omissions Flashcards

1
Q

What is the general rule of omissions? Name the case too

A

As a general rule, the law of tort only imposes liability on those who cause injury or damage to another;nosuch duty is imposed on a mere failure to act, otherwise known as an omission (Smith v Littlewoods Organisation Ltd[1987]

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2
Q

What are the exceptions to the general rule that no duty of care is imposed on a mere failure to act?

A

· Where there is statutory duty
· Where there is contractual duty
· Where the defendant has sufficient control
· Where the defendant assumes responsibility
· Where the defendant creates the risk
· Where the omission is a failure to prevent a third party from causing harm and…
a. There is sufficient proximity between D and C; and/or
b. There is sufficient proximity between D and third party; and/or
c. D created the danger; and/or
d. The risk is on D’s premises

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3
Q

What is the statutory duty exception?

A

If a statute imposes a particular requirement to act then a failure to do so can be the basis for liability. For example, the Occupiers’ Liability Act 1957 imposes such requirements.

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4
Q

What is the contractual duty exception?

A

The law may impose tortious liability if a person fails to perform their contractual obligations. Much depends on the exact terms within the contract itself. - Stansbie v Troman

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5
Q

What is the ‘ defendant has sufficient control’ exception? Name a case that shows this.

A
  • In some situations, where the defendant has a high degree of control over the claimant, the law may impose a positive duty on the defendant to act; even to the point of preventing the claimant from physically harming himself or herself. For example, a parent has a sufficient degree of control over their child and should intervene if they are drowning.
  • Reeves v Commissioner of Police for the Metropolis [1999]
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6
Q

What did Reeves v Commissioner of Police for the Metropolis [1999] show?

A

the House of Lords held that a duty did exist on the police to protect a prisoner’s health including the possibility that they may attempt suicide. The police had a high degree of control over the victim (who was in their custody) and it was well documented as to the likelihood of some prisoners taking their own life. Given the police exercised control over the victim and the known risk of suicide among prisoners, they owed him a duty to take steps to ensure that he did not harm himself.

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7
Q

What is the ‘defendant assumes responsibilities’ exception? Name a case that shows this.

A

If a person voluntarily assumes responsibility for another, the courts may impose a duty of care. This could arise, for example, because of the nature of a person’s employment or because of a previous relationship between the parties (for example, relationship of mother and child, teacher and pupil).
- Barrett v Ministry of Defence[1995

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8
Q

What did Barrett v Ministry of Defence[1995] show?

A
  • duty of care can be established by voluntarily assuming responsibility
  • although the defendants were not liable for Barrett, a naval pilot, getting drunk, they did assume responsibility for him once an officer had taken action to care for him. A fellow officer started to help Barrett when he got drunk, but then left him unattended and Barrett choked to death on his own vomit. Once the fellow officer started helping him, the defendant had assumed responsibility for the claimant’s welfare and owed a duty of care to watch over him and summon appropriate medical assistance.
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9
Q

What is the ‘defendant created the risk’ exception? Name a case that shows this.

A

If a defendant creates a dangerous situation through an omission the law may impose a positive duty to act in order to mitigate the danger.
- Goldman v Hargrave [1967]

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10
Q

What did Goldman v Hargrave [1967] show?

A
  • in deciding not to completely extinguish the fire, he had “Adopted the risk” that it might spread and was subsequently liable for the resulting neighbouring property damage
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11
Q

What is the general rule in relation to omissions with the fire brigade? Include a case.

A

the fire brigade is not under a positive duty to attend to a fire. However, if the fire brigade does attend to a fire, they owe a duty of care not to make the situation worse through a positive act.
- Capital and CountiesvHampshire County Council[1997]

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12
Q

Does the police owe a duty to respond to an emergency? Include a case

A

the police owe no duty of care to respond to emergency calls

- Alexandrou v Oxford [1993]

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13
Q

What is the principle authority in regards to the ambulance service. Include the case.

A

Kent v Griffiths & Others[2000]
- the ambulance service is an extension of the health service, so acceptance of a 999 call established a duty of care to arrive in a reasonable time

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14
Q

What is the exception to the ambulance services authority?

A

this duty of care might not have been breached where the service had properly exercised its discretion to deal with a more pressing emergency before attending to the claimant or where it had made a choice about the allocation of resources

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15
Q

What are the exceptions to the ‘Failure to prevent a third party causing harm’?

A
  • when there is Proximity between the Defendant and the Claimant
  • when there is Proximity (special relationship) between the Defendant and the Third Party
  • The creation of a danger
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16
Q

What are the cases that sets precedent in ‘Failure to prevent a third party causing harm-Proximity (special relationship) between the Defendant and the Claimant’

A
Stansbie v Troman
Palmer v Tees Health Authority
Home Office v Dorset Yacht
Hill v Chief Constable of West Yorkshire
Swinney v Chief Constable of Northumbria
Smith v Chief Constable of Sussex Police
Mitchell v Glasgow City Council
17
Q

What were the facts in Stansbie v Troman and what did it show?

A

A decorator, the defendant, owed a duty of care to a property owner having allowed burglars into the property by failing to secure the building. The duty owed was to lock the property when he left, to prevent burglary by a third party.

  • it can also be characterised as one in which the defendant created the risk, by leaving the premises without the door properly secured
  • It can also be characterised as one in which the defendant owed a contractual duty to act.
18
Q

What were the facts in Palmer v Tees Health Authority and what did it show?

A

The claimant argued that a local Mental Health Authority owed her a duty in allowing a psychiatric patient into the community without adequate supervision. The patient had previously threatened to kill a child and subsequently attacked and killed the claimant’s daughter. The Court of Appeal stated that there was not sufficient proximity between the parties for a duty to exist. The daughter was not an identifiable potential victim and there was nothing that the defendants could have reasonably done to prevent the incident occurring. There was no special relationship between the parties.

  • there was no proximity between the local authority and mental health patient as he was not under their care and control at the time the harm was committed.
  • The claimant must be someone at particular risk of damage over and above the public at large.
19
Q

What precedent does Hill v Chief Constable of West Yorkshire show? What were the facts of the case?

A

The mother of the final victim of the “Yorkshire Ripper” sued the police for failing to apprehend him.

  • Precedent:
    1. No duty existed as there was insufficient proximity between all women (as potential victims) and the police to establish a duty of care.
    2. For policy reasons, the police are unlikely to be held liable for failing to apprehend criminals
20
Q

What precedent does Swinney v Chief Constable of Northumbria show? What were the facts of the case?

A

A pub landlady gave information to the police on the condition that she remain completely anonymous. A file with her details in was lost and she suffered psychiatric illness as a result.
- Precedent:
Due to their special relationship, the police had sufficient proximity to the informant, so it was FJR to impose a duty on them

21
Q

What precedent does Smith v Chief Constable of Sussex Police show? What were the facts of the case?

A

A man was attacked by his former boyfriend. He had previously warned the police of calls he had received threatening violence.
- Precedent:
The public policy reasoning in Hill behind police immunity was upheld
- imposing a duty of care would lead to defensive policing and diversion of time and resources from suppressing crime.
- There was also a lack of proximity between the claimant and defendant as the police had not assumed responsibility for the claimant’s welfare.

22
Q

What precedent does Mitchell v Glasgow City Council show?

A
  • it was held that the local authority was under no duty to warn a tenant that his neighbour might resort to violence after being informed (by the council) that he risked being evicted. - there was not sufficient proximity between the claimant and the defendant. - A duty to warn someone that they might be at risk of injury/loss as a result of the criminal act of a third party would arise only where the person ostensibly under the duty had assumed responsibility for the victim.
23
Q

What precedent does CN and GN v Poole Borough Council show?

A

a claim alleging negligence against the Defendant for failing to take two children into care, to prevent them from harm caused by another party.
- The Court held that even if the Council had the power to take the children into care, this was insufficient to show that the Council had a duty to take them into care. The Council had not assumed responsibility for the children’s welfare.

24
Q

How should the exceptions be categorised?

A

(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, or
(iv) A’s status creates an obligation to protect B from that danger

25
Q

What is the case that sets precedent in ‘Failure to prevent a third party causing harm-dangers on the defendants premises.

A

Smith v Littlewoods

26
Q

What is the case that sets precedent in Failure to prevent a third party causing harm-The creation of a danger.

A

Stansbie v Troman

27
Q

What does ‘Failure to prevent a third party causing harm-The creation of a danger’ mean?

A

If a defendant creates or allows the creation of a danger and the claimant is injured as a result, it may be liable even though it was a third party’s action that actually caused the damage in question.

28
Q

What does ‘Failure to prevent a third party causing harm-dangers on the defendants premises’ mean?

A

If a defendant knows, or ought to know, of a danger on their property created by a third party, they may owe a duty to anyone who is subsequently damaged as a result of the said danger. In other words, the defendant has a duty of care to take reasonable steps to eradicate or diminish the known danger.

29
Q

What does ‘Failure to prevent a third party causing harm-Proximity (special relationship) between the Defendant and the Third Party’ mean?

A

Here the duty of care is imposed on the basis that the defendant has a right or responsibility to control or supervise the third party.

30
Q

What precedent does Home Office v Dorset Yacht Co set?

A

The defendants were held liable for the wrongful acts of some borstal boys under their supervision. The borstal boys were left unsupervised by their supervisors and attempted to escape the island using the claimant’s yachts. The supervisory relationship created proximity between the defendant and borstal boys. As well as establishing proximity between the defendant and third party, the courts also held that the damage to the yachts was reasonably foreseeable given that the boys had a history of escape and the yachts were the only means by which to leave the island.