Omissions/3rd Party Liability Flashcards
Basic rule for omissions
No liability (Stovin v Wise)
Reasons for no liability for omissions
a) Political - respect of self-autonomy
b) Moral - cannot justify putting the liability on one party (Why me?)
c) Economic - economic efficiency = people should bear own costs
Acts vs Omissions
If D has made things worse than they would have otherwise been - act
If D just has not made things better than they would have been - omission
Exceptions to basic rule for omissions, as acknowledged in Stovin v Wise
a) Creating the risk (Morrison v Lord Mayor of Sheffield)
b) Undertake responsibility for claimant’s wellbeing (Sutradahar v Natural Environment Research Council)
c) Occupation of land
When is responsibility undertaken for claimant’s wellbeing?
Case Study 1: emergency services
Capital and Counties plc v Hampshire CC (fire - sprinkler system off)
- In the end, positive act of turning the sprinkler off, rather than omission
- Not when received the call; competing demands, cannot expect immediate response
- Not when arrived at scene: should prioritise duty to public > particular persons
Kent v Griffiths (ambulance delayed) (distinguished)
- Ambulance part of NHS, duty owed analogous to if she walked into A&E
- But for assurance, husband would have taken
- No competing demands
Other reasons for distinction: nature of interest (property versus personal)
When is responsibility undertaken for claimant’s wellbeing?
Case Study 2: self-inflicted injuries
Barrett v Min of Def (officer choked on vomit and died; self-autonomy)
Jebson v Min of Def (drunk soldier dropped off lorry during outing by officer)
Reeves v Commissioner of Police for the Metropolis (situational and physical control over the claimant)
Occupation of land
Goldman v Hargrave (gum tree)
Potential expansions to exceptions to basic rule for omissions
Williams: medical Samaritans
Basic rule for third party
No liability
Exceptions - main debate
Fixed categories versus foreseeability test
Home Office v Dorset Yacht (offenders escape - damage yacht)
Lord Reed: foreseeability ok
Lord Diplock, Lord Pierson, foreseeability insufficient, policy reasons needed
Lord Diplock: support fixed categories
Smith v Littlewood Corporation (cinema - delay)
Lord McKay: foreseeability
Lord Goff’s suggested categories:
a) Understanding to protect C from damage
b) Special relationship between D and third party e.g. control
c) D created risk and foreseeable that third party would trigger the risk
Resolution of dilemma
SPECIFIC CATEGORIES APPROACH (Mitchell v Glasgow City Council)
Foreseeability test - excessive burden to consider possible consequences of any act or omission
