Duty of Care Omissions Flashcards
What is the general rule of omissions? Name the case too
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]
What are the exceptions to the general rule that no duty of care is imposed on a mere failure to act?
· 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
What is the statutory duty exception?
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.
What is the contractual duty exception?
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
What is the ‘ defendant has sufficient control’ exception? Name a case that shows this.
- 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]
What did Reeves v Commissioner of Police for the Metropolis [1999] show?
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.
What is the ‘defendant assumes responsibilities’ exception? Name a case that shows this.
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
What did Barrett v Ministry of Defence[1995] show?
- 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.
What is the ‘defendant created the risk’ exception? Name a case that shows this.
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]
What did Goldman v Hargrave [1967] show?
- 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
What is the general rule in relation to omissions with the fire brigade? Include a case.
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]
Does the police owe a duty to respond to an emergency? Include a case
the police owe no duty of care to respond to emergency calls
- Alexandrou v Oxford [1993]
What is the principle authority in regards to the ambulance service. Include the case.
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
What is the exception to the ambulance services authority?
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
What are the exceptions to the ‘Failure to prevent a third party causing harm’?
- 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