Liability for Omission Flashcards
Starting point in liability for Omission
Stovin v Wise
The starting point is, that there is no liability for omission
Lord Hoffmann:
Stovin v. Wise [1996]
argues there are three main reasons why English Law does not generally recognise a duty of care
1) Political:
making someone liable for failure to act means you are effectively demanding somebody to act - heavy burden and not appropriate due to freedom of action (more precisely: inaction)
2) Moral:
“why pick on me argument“
it would be unfair to single out one of those people and make that person liable in negligence
3) Economic reasons:
economic inefficiency: where people are made responsible for their own actions they will have an incentive to act in a way which creates lower cost
argues there are three main reasons why English Law does not generally recognise a duty of care
1) Political:
making someone liable for failure to act means you are effectively demanding somebody to act - heavy burden and not appropriate due to freedom of action (more precisely: inaction)
2) Moral:
“why pick on me argument“
it would be unfair to single out one of those people and make that person liable in negligence
3) Economic reasons:
economic inefficiency: where people are made responsible for their own actions they will have an incentive to act in a way which creates lower cost
Lord Hoffmann:
Stovin v. Wise [1996]
Stovin Wise Lord Nicholls
if the law imposes liability for omissions this essentially creates compulsory altruism*
as a matter of morality it sometimes is appropriate to help someone else but its controversial to make something a legal rule based on morality (morality might change)
if the law imposes liability for omissions this essentially creates compulsory altruism*
as a matter of morality it sometimes is appropriate to help someone else but its controversial to make something a legal rule based on morality (morality might change)
Stovin v Wise Lord Nicholls
How to determine whether something was an omission
if D hasn’t made things any better/worse: omission situation
Morrison
protective barriers with spikes on trees, blackout
situation where D created a risk in a way that wasn’t negligent, but a change of circumstance created a risk, at this point D ought to have taken steps to eliminate this risk
protective barriers with spikes on trees, blackout
situation where D created a risk in a way that wasn’t negligent, but a change of circumstance created a risk, at this point D ought to have taken steps to eliminate this risk
Morrison
Emergency services
Capital and Counties plc v. Hampshire County Council
no liability from omission
Kent v. Griffiths
liability from omission
Capital and Counties plc v. Hampshire County Council
claim against Fire brigade; officer in charge decided that the best way to fight the fire is to turn off the sprinklers
building burned to the ground
Claims:
three alternative duties of care
1) assumption of responsibility upon acceptance of call
→ rejected; can’t rely on that idea of general reliance, can’t say because people generally expect the fire brigade to be efficient and prompt that out of this expectation of a duty of care arises
2)
when they took over fighting the fire a duty of care arose
→ also rejected because
i) although a fire brigade does owe a duty to fight the fire once arrived at the scene, that duty is towards the general public not such a specific duty that would be need for liability in negligence;
ii) once the fire brigade gets there it may well be faced with difficult decisions about how best to protect peoples property in general → Fire brigade should be left free to decide the best method without being distracted or inhibited with questions owing duty of care
3) when station officer Mitch turned of the sprinklers this was a positive act which contributed to the later damage → succeeded
claim against Fire brigade; officer in charge decided that the best way to fight the fire is to turn off the sprinklers
building burned to the ground
Claims:
three alternative duties of care
1) assumption of responsibility upon acceptance of call
→ rejected; can’t rely on that idea of general reliance, can’t say because people generally expect the fire brigade to be efficient and prompt that out of this expectation of a duty of care arises
2)
when they took over fighting the fire a duty of care arose
→ also rejected because
i) although a fire brigade does owe a duty to fight the fire once arrived at the scene, that duty is towards the general public not such a specific duty that would be need for liability in negligence;
ii) once the fire brigade gets there it may well be faced with difficult decisions about how best to protect peoples property in general → Fire brigade should be left free to decide the best method without being distracted or inhibited with questions owing duty of care
3) when station officer Mitch turned of the sprinklers this was a positive act which contributed to the later damage → succeeded
Capital and Counties plc v. Hampshire County Council
Kent v. Griffiths [2001] QB 36
Major injuries were suffered where an ambulance arrives late , which could have prevented had it come on time or informed the claimant of delay
Held
negligent act as it made things worse
concerns about duties being owed to many people as above did not apply
Arguably: distinction between damage to property and physical injury
Major injuries were suffered where an ambulance arrives late , which could have prevented had it come on time or informed the claimant of delay
Held
negligent act as it made things worse
concerns about duties being owed to many people as above did not apply
Arguably: distinction between damage to property and physical injury
Kent v. Griffiths [2001] QB 36
Consequences of Kent
there was a fear of floodgate opening HOWEVER
over 10 years only 60 claims for negligence and less than 20 succeeded (Griffith)
Assumption of responsibility implied from relationship:
Military
Barrett v MoD
Jebson v MoD
