Negligence: Duty of Care ‘Special Scenarios’ (II) – Omissions and the Liability of Third Parties

Question 1

Dorset Yacht v Home Office (1970) [also seen in the Formulation of Duty deck]

Answer 1

Lord Diplock - no legal consequences for what we would see as being ‘morally’ wrong (e.g. omissions) (p. 1060).

However, this case provides an example of an exception to the omissions rule: where there is a ‘special relationship’, you will be held liable.

Question 2

Stovin v Wise (1996)

Answer 2

3/2 majority that there was no duty of care on highway authority as this dealt with an omission (to not fix something). Moreover, there is no liability for the actions of third parties

There is a difference between requiring the authority to act and failure to act in an appropriate manner.

Therefore, omission on the part of the Highway Authority was not relevant

At p. 945, Lord Hoffmann introduces the ‘why pick on me’ argument to deny the viability of omissions.

Question 3

Michael v CC of South Wales Police (2015) [also seen in the Formulation of Duty deck]

Answer 3

Harsh application of the rule from a moralistic point of view.

999 call not properly recorded –> failure to make a ‘note’ that there was an imminent threat of death –> there was, therefore, no ‘urgent’ response needed. C eventually murdered.

3/2 majority SC that there was no liability for a ‘pure omission’ + for the actions of a third party –> the ‘real responsibility’ lies with the boyfriend (who killed her).

Question 4

Ruddy (AP) v Strathclyde Police (2012)

Answer 4

The pursuer said that he had been assaulted whilst in the custody of the responder’s officers. He began civil actions after his complaint was rejected. The pursuer further sought damages as the investigation of his complaint of ill-treatment was reported to the procurator fiscal - whose own investigation was (allegedly) faulty. This was because following the investigation, no prosecution was initiated and no disciplinary action was taken against any officer. These acts and omissions were alleged to breach the pursuer’s rights in terms of article 3 of the ECHR. The Sheriff rejected the claims, and his appeal was rejected as incompetent by the Court of Session.

Held: The appeal succeeded.

The Court of Session is largely its own master in terms of its procedures, and its decisions on such should not be disturbed unless shown to be wrong in principle. This was such a case. The pursuer was right to seek damages rather than a judicial review since a review of the decision would be an inadequate remedy.

As the objection that was taken to the competency of the action as a whole was not well founded, it is open to this court to differ from the Extra Division on this issue too and reject the objection. The court must take a pragmatic approach and not allow the procedure to become the master of justice. The case was remitted for the Court of Session to admit and hear the appeal.

Question 5

Yetkin v London Borough of Newham (2010)

Answer 5

This case provides an example of an exception to the omissions rule: where D has created the risk himself, he will be held liable.

Planted shrubberies –> grew wildly out of control
Failure on the part of the Borough to properly maintain the flowerbeds that they have installed gave rise to a duty of care –> thus distinct from Stovin v Wise.

Question 6

Sumner v Colborne (2018)

Answer 6

(Regarding omissions) no duty of care here; just because you have land adjacent to a highway, does not mean you have a duty of care.

Question 7

Kent v Griffiths (2000)

Answer 7

This case provides an example of an exception to the omissions rule: where you have willingly assumed responsibility, you will be held liable.

Question 8

Capital Counties plc v Hampshire CC (1997)

Answer 8

This case provides an example of an exception to the omissions rule: where you have willingly assumed responsibility, you will be held liable.

Question 9

Barrett v MOD [also seen in the Physical Injury deck]

Answer 9

This case provides an example of an exception to the omissions rule: where you have willingly assumed responsibility, you will be held liable.

Question 10

Reeves v Commissioner of Police of the Metropolis [also seen in the Legal Causation and General Defences decks]

Answer 10

This case provides an example of an exception to the omissions rule: where you have willingly assumed responsibility, you will be held liable.

Question 11

Carty v London Borough of Croydon (2005)

Answer 11

This case provides an example of an exception to the omissions rule: where there is a ‘special relationship’, you will be held liable.

Question 12

Savage v South Essex Partnership NHS Foundation Trust (2010)

Answer 12

This case provides an example of an exception to the omissions rule: where there is a ‘special relationship’, you will be held liable.

A hospital has a special relationship to detained patients

Question 13

Occupiers’ Liability Act 1957; 1984

Answer 13

An occupier owes a positive duty to protect visitors.

Question 14

Goldman v Hargrave (1967) (UKPC)

Answer 14

An occupier owes a positive duty to ensure naturally occurring danger does not spread to neighbouring land.

A 100-foot red gum tree on the defendant’s land was struck by lightning and caught fire. The following morning the defendant contacted a tree feller to cut down the tree saw it into sections. The wood was still smouldering and the defendant failed to douse it with water to eliminate the risk of fire. Over the next few days, the weather became very hot and reignited the fire which spread to neighbouring property.

Held: The defendant was liable for the naturally occurring danger that arose on his land as he was aware of the danger and failed to act with reasonable prudence to remove the hazard.

Question 15

Selwood v Durham CC (2012)

Answer 15

It was held in this case that since Caparo, there is no need for particular categories of circumstances that provide the additional ‘something’ to which a duty of care can be imposed. All that is required is the satisfaction of the F/J/S test. It is not necessary for C to show that D has assumed any responsibility for C’s safety (Smith LJ at [50]). However, such reasoning seems to go against the general statements in Michael and Robinson.

Regarding the case -

Various serious threats were made by GB against C, the social worker for his daughter, to doctors and others involved in his care. He attacked C, causing serious injury.

Duty of care established (against doctors and others), based upon the Caparo analysis. This case provides an example of a ‘special scenario’ where a duty of care was established for the actions of third parties.

Question 16

Robinson v West Yorkshire Police (2018) [also seen in the Formulation of Duty deck]

Answer 16

Lord Reed provides that generally, there is no liability for the actions of third parties [37].

Question 17

Mitchell v Glasgow CC (2009)

Answer 17

Lord Hope provides that generally, there is no liability for the actions of third parties [15].

M was killed by violent neighbour D, whom he had been in a long-running dispute with after council notified D that he was to be evicted following numerous complaints about his behaviour.

Claim against Council –> to warn M that D was enraged due to a meeting and there was a risk.

No liability against the actions of a 3rd party; justified by policy considerations.

Question 18

Smith v Littlewoods Organisation Ltd. (1987)

Answer 18

Someone broke into a disused cinema owned by L and started a fire. The cinema burnt down, damaging a neighbouring café, billiards saloon and church.

D knew that break-ins occurred.

No liability against the actions of a 3rd party. The person at fault is who deliberately caused the harm.

Question 19

Topp v London Country Bus (1993) [also seen in the Physical Injury deck]

Answer 19

LBC left an unlocked minibus in a layby overnight, unlocked an with the keys in the ignition. Thieves stole the bus and ran over and killed a cyclist.

No liability against the actions of a 3rd party.

Question 20

Carmarthenshire CC v Lewis (1955)

Answer 20

The 3-year-old child wandered out of the nursery and into the road. C was driving a lorry and swerved to avoid the child. C was killed.

Duty of care established (towards the Council) both to the child and to road users who might be affected by the child’s actions. This case provides an example of a ‘special scenario’ where a duty of care was established for the actions of third parties.

Question 21

Webster v Ridgeway Foundation School (2010) (High Court)

Answer 21

C arranged to have a fight with another student, MM on the school tennis courts. Other people joined MM in the fight and a non-pupil, WF, attacked C with a claw hammer causing serious brain damage

A duty of care could be established (against the school), but there was no breach. This case provides an example of a ‘special scenario’ where a duty of care was established for the actions of third parties.

Question 22

Merthyr Tydfil County Borough Council v C (2010)

Answer 22

Child abuse from a neighbouring child had not been dealt with after it was reported to the council by the mother of the abused children.

Duty of care established as the Council was put on notice of the problem. This case provides an example of a ‘special scenario’ where a duty of care was established for the actions of third parties.

Question 23

Van Colle v CC of Hertfordshire Police (2008)

Answer 23

The deceased had acted as a witness in an intended prosecution. He had sought protection after being threatened. No effective protection was provided, and he was murdered. The chief constable appealed a finding of liability.

Held: Appeal allowed. According to Osman v UK, a positive obligation to prevent death arises for public authorities only where the authority knew, or ought to have known, of the existence of a real and immediate risk to life. Whilst Van Colle was to be a witness and therefore within the class of persons to whom a duty to protect might arise, the crime for which he was a witness was of a minor nature and Mr Brougham did not have a history of violence. The threats were intimidating but not sufficiently serious to suggest that Mr Van Colle’s life was endangered. Therefore no obligation arose to take reasonable steps to prevent the killing and thereby no violation of Art 2 ECHR.