Tort Law - Omissions and Third Parties Flashcards
How do L&O argue we should see the case of Kent Griffiths?
Better to compare ambulance services to other health services, with a public law duty
Morrison v Lord Mayor of Sheffield general
Iron guard, blackout
Vacwell v BDH
Manufacturers must supply appropriate instructions and warnings with products
Majority in Smith v Littlewoods Corporation
Foreseeability, emphasising lack of knowledge of compromised security, although acknowledged DoC
barnes v hants general
school authorities
What jurisdiction is Stewart v Pettie from?
SC of Canada
How was the FJR impliedly considered in Lowns v Woods?
Applied test of proximity from Sutherland Shire Council v Heyman
Naval airman, vomit
Barrett v MoD
What are the five exceptions to the general rule for liability for acts of 3rd?
Control imports responsibility, psychiatric patients, liability of landowners to neighbours, landlords and tenants and liability for serving alcohol
Barrett v Enfield LBC
No general duty of good parenting
Who, in obiter, suggested a way to distinguish Capital and Kent, and in what case?
Lord Bingham in Smith v Sussex
Unlocked mini bus, pub closing time
Tapp v London Country Bus
Watson v British Board of Boxing Council on reliance
General reliance led to DoC despite Capital as they were a regulatory body assuming responsibility towards participatory fighters to provide medical equipment
What is the economic reason for limiting liability for omissions?
Incentivising individuals against certain acts by making them pay - desirable by economic theory that people act efficiently and create the least costs
What two cases show liability for omission can arise out of an office/position of responsibility
Reeves v Commissioner of Police for the Metropolis and SoS for HD v Robb
Tapp v London Country Bus judgment
No special danger arose, relying on Goff in Smith
Jebson v MoD general
Lorry dancing
Why do L&O argue Kent survives Gorringe?
AR came from the call as well, giving a basis other than statutory power on which to impose the positive duty
What did Lord Nicholls add to Hoffman’s reasons in stovin v wise?
Imposes compulsory altruism which should require a special justification before being imposed
Jordan House v Menow judgment
Canada found a DoC with two influencing factors - (1) regular and (2) Canadian legislation imposed a tortious duty on owners of pub etc. if customer was killed/committed suicide after getting drunk at their premises
Reeves v Commissioner of Police for the Metropolis judgment
Police admitted DoC and HoL agreed due to extensive control of police over V
Palmer v Tees Health Authority judgment
Lack of proximity - no AR to such a large class of potential victims
Designated social worker, violent father
Selwood v Durham CC
Watson v British Boxing judgment
AR for adequacy of supplies at an approved bout
Rape by foreign citizen
K v SoS for HD
R v Imperial Tobacco Canada Ltd judgment
No DoC as no basis on which to find a positive duty to act
Cole v South Tweed Heads
HC of Australia denied licensed club owes a DoC to stop patrons drinking to excess
White v Jones judgment
Contractual undertaking may generate a duty of affirmative action - AR for task
Palmer v Tees Health Authority general
4 year old abduction, nightmares
East Suffolk Rivers Catchment Board v Kent general
Sea wall, 178 days
SoS for HD v Robb general
Hunger strike
Lowns v Woods general
Epilepsy, 300m
Winfield and Jolowicz on OLL Ltd v SoS for Transport
Decision is hard as coastguard made children worse off by depriving them of assistance
Tapp v London Country Bus general
Unlocked mini bus, pub closing time
What judge and in what case made it clear that the question of whether V’s identity is known should not determine proximity test outcome
Palmer v Tees Health Authority per Pill LJ
what three reasons for limiting liability for omissions did Hoffman given in Stovin v Wise?
Political, moral and economic reasons
What did Williams show about the judges in Kent?
They tried to align law with moral sentiment - ‘offensive to concepts of common humanity’ (Turner J) not to give a remedy
What case stated a Medical professional is not liable as long as he ‘acted in accordance with a practice accepted as proper by a responsible body of medical men skilled’ in the given area
Bolam v Friern Hospital Management
What two judges in Mitchell v Glasgow Focused on Council’s actions as being entirely lawful, and thus not negligently creating any risk under 3rd by Goff in Smith
Rodger and Hale
Name at least one caseshowing how liability for omission can arise out of supply of non-obviously dangerous products
Vacwell v BDH; Hobbs (Farms) v Baxender
Home Office v Dorset Yacht general
Borstal
Name at least two cases showing reliance creating liability for omission as D undertook responsibility for C’s wellbeing
Watson v British Board of Boxing Council; Barrett v Ministry of Defence; Jebson v MoD; Reeves v Commissioner of Police for the Metropolis
no general DoC simply due to a ‘blood relationship’
Hahn v Conley
Winfield and Jolowicz on Kent and Capita
Fire service usually concerned with property damage, so liability would benefit subrogated fire insurers with a premium to cover the risk
Manufacturers must supply appropriate instructions and warnings with products
Vacwell v BDH
Who said there is ‘no rational distinction’ at all between acts and omissions?
Hart and Honore
What needs to be seen together to find liability under supply of non-obviously dangerous products?
Supply of product and failure to warn - if they are not one, it is nonfeasance, not misfeasance
Smith v Littlewoods Corporation judgment
No breach of DoC - HoL unanimous in result but no in reasoning
What did a fear of deterring would-be rescuers through liability for exposing V to a new danger lead to in the US?
‘Good Samaritan’ statutes, recognising immunity in some cases
Jordan House v Menow general
Dark, drunk, regular
Gorringe v Calderdale judgment
Mere presence of statutory powers which, if exercised, might have prevented damage to C is not enough for a Doc
Adeels Palace v Moubarak
Owner of a bar/similar establishment owes a DoC to prevent a patron from harming others on premises
Hart and Honore on Nicholls’ judgment in Stovin
Took his statement that ‘distinction is not clear’ between acts and omissions and said there is ‘no rational distinction’ at all
Council, unpleasant neighbour, meeting
Mitchell v Glasgow CC
Jebson v MoD judgment
Commanding officer AR for WHOLE activity, meaning MoD AR vicariously. Aim of event to get drunk, which CO knew
what would bender prefer tort focused on?
Interdependence rather than individualism
Hunter v Canary Wharf
Cannot claim in nuisance if C is not the owner of the land
From what jurisdiction is Jordan House v Menow?
Canada
Selwood v Durham CC judgment
No duty by health authority to world at large, but yes to social worker because small group of social workers involved in the case, and worked in close proximity with health authority
From what jurisdiction is Hahn v Conley?
HC of Australia
Goldman v Hargrave judgment
Privy Council found DoC to stop damage caused by D’s property to neighbouring land
What is the political reason for limiting liability for omissions?
Restricts personal autonomy inappropriately
What case said AR give liability for omission only when intending to benefit a small class
Stradhar v National Environment
Name a case on a parent-child relationship and liability for omissions
Barrett v Enfield LBC; Hahn v Conley
Honore on Hobbs (Farms) v Baxender
Shows a broader principle so that innocent doing of harm/risk creation = a positive duty
What is the position in Australia on liability of owners of premises serving alcohol, and in what case?
Cole v South Tweed Heads; HC of Australia denied licensed club owes a DoC to stop patrons drinking to excess
what concern did the judges have in capital and Counties?
That liability would disturb the performance of fire brigades
What were the 3 conditions for recognising DoC for damage of 3rd given by Lord Goff in Smith v Littlewoods?
(1) AR towards C to prevent damage caused by 3rd, (2) D has a special relationship with 3rd or (3) D negligently creates the source of danger which 3rd foreseeably sparks off
Clark Fixing v Dudley Metropolitan BC judgment
Duty to stop spread of fire - knew of intrusions etc.
Why was a DoC found in Selwood v Durham CC?
small group of social workers involved in the case, and worked in close proximity with health authority
When might negligence be the only claim for liability for omission in occupation of land?
If C is not the owner/the claim is for personal injury/non-land interference: Hunter v Canary Wharf
What did Honore say of the categories for liability for omissions?
There is no ‘neat pattern’
McIvor on cases where control imports responsibility and liability for third party actions
Need a very strong relationship between ‘responsible’ D and ‘irresponsible’ 3rd, C needs to be within a narrowly defined class of potential victims and harm-causing conduct of 3rd needs to be highly foreseeable
Name two cases at least where liability for actions of third parties arises out of serving alcohol
Adeels Palace v Moubarak; Childs v Desormeaux; Stewart v Pettie
Capital and Counties v Hampshire CC judgment
No proximity by accepting call, and general reliance does not give a DoC. No AR by arriving due to statutory obligation to public at large, not a tortious obligation to X in particular. HOWEVER, negligent positive act through turning sprinklers off
Selwood v Durham CC general
Designated social worker, violent father
What does Williams claim about Kent?
Had little impact on negligence claims - less than 20 of 60 on negligent failure to attend resulted in compensation
Barnett v Chelsea & Kensington Hospital
Staff in casualty department may AR by helping/advising a person seeking attention
Winfield v Jolowicz on Barrett
If officer had ignored him, would have been bound as generally accepted employers owe DoC to sick employees: Kasapis v Laimos
Stradhar v National Environment on undertaking responsibility
Lack of contact meant no DoC - expert knowledge does not of itself create a duty to use it for the public at large
Which case rejected that the mere presence of statutory powers which, if exercised, might have prevented damage to C is enough for a Doc?
Gorringe v Calderdale
Rodger and Hale in Mitchell v Glasgow
Focused on Council’s actions as being entirely lawful, and thus not negligently creating any risk under 3rd by Goff in Smith
How can SoS for HD v Robb and Reeves v Commissioners be reconciled?
Police have a duty to deprive V as far as possible the means to self-injure, bar ACTUALLY using force
What is the stance in Canada on liability for serving alcohol and actions of third parties, and according to what case?
Stewart v Pettie: DoC owed by commercial premises serving alcohol to those who might be injured when patron leaves
Gorringe v Calderdale general
SLOW on road
Howarth on Tapp v London Country Bus
Criticised the CoA for relying on minority reasoning of Goff in Smith
What case is an example of the 3rd condition by Goff in Smith?
Sandhu Menswear v Woolworths
SoS for HD v Robb judgment
No right to forcefeed a hunger strike prisoner
Stewart v Pettie does not apply to ‘social hosts’ unless they enhance the risk
Childs v Desormeaux
Kent v Griffiths judgment
CoA found DoC as made situation worse, and no duty to public AT LARGE - to specific X once call is allocated, and no need to worry about liability of others to distort performance
what case gave that danger to public at large was insufficient for DoC?
K v SoS for HD
Bender on lack of duty of rescue
Reflects a ‘legal system devoid of car and responsiveness to the safety of others’
Lord Reid in HO v Dorset Yacht
Simple foreseeability of damage test
Carmarthenshire CC v Lewis judgment
Authority liable for OWN negligence rather than vicarious liability through teacher’s negligence - AR for control of child, creating a relationship of proximity with those foreseeably endangered by him
What case is an example of the 2nd condition by Goff in Smith?
HO v Dorset Yacht
What case suggested there may be liability if a manufacturer does not warn past consumers of a latent defect discovered in their product?
Hobbs (Farms) v Baxender
What Acts impose a duty on landowners to ensure land is reasonably safe for both trespassers and guests
Occupiers’ Liability Act 1957 and 1984
Palmer v Tees Health Authority per Pill LJ
Question of whether V’s identity is known should not determine proximity test outcome
Watson v British Boxing general
Medical supplies
Who criticised the CoA for relying on minority reasoning of Goff in Smith in Tapp v London Country Bus?
Howarth
Clark Fixing v Dudley Metropolitan BC general
Roof adjoining neighbours, intrusions and fires
What types of landlords does Mitchell v Glasgow cover?
Both public and private
Kevin Williams on reasons given in Stovin v Wise
Risks overlooking other relevant policy factors, e.g. that a life could be saved by a relatively trivial act
What case shows liability for omission by creating the risk in the first case?
Morrison v Lord Mayor of Sheffield
How was the authority held liable for its own negligence in Carmarthenshire CC v Lewis?
AR for control of child, creating a relationship of proximity with those foreseeably endangered by him
From what jurisdiction is Cole v South Tweed Heads
HC of Australia
Capital and Counties v Hampshire CC general
Sprinkler system, chief officer
Who asks Did D make things worse (act) or did he fail to make things better (omission)? in order to distinguish between acts and omissions?
L&O
Mitchell v Glasgow CC
HoL showed a clear preference for Goff’s approach in Smith v Littlewoods
How do L&O criticise Goff’s three conditions in Smith v Littlewoods?
Goff rejected foreseeability, and yet allowed DoC where D ‘either knows or has the means of knowing’ 3rd is causing damage - isn’t this essentially foreseeability?
Sprinkler system, chief officer
Capital and Counties v Hampshire CC
Stewart v Pettie
SC of Canada found DoC owed by commercial premises serving alcohol to those who might be injured when patron leaves
Combustible material, storage unit
Sandhu Menswear v Woolworths
Tall red gum, relight
Goldman v Hargrave
Sedleigh-Denfield v O’Callaghan
Liability of landowners established if damage/nuisance caused by trespassers (3rds) to a neighbour is ‘adopted’ or ‘continued’ by D
Goldman v Hargrave on liability of landowners to neighbours for acts of 3rds
Duty to protect neighbours from natural hazards on land
L&O on classic act/omission distinction
It is unhelpful
What is the moral reason for limiting liability for omissions?
The ‘Why Pick On Me’ argument, of all the possible defendants
Name at least two cases covering expert knowledge leading to liability for omission by undertaking responsibility for C’s wellbeing
OLL Ltd v SoS; Capital and Counties; East Suffolk; Kent v Griffiths
Hope in Mitchell v Glasgow
Key question was no AR to warn C, and concern over onerous burden of DoC
Hill v Chief Constable of South Yorkshire judgment on acts of 3rds
No proximity - part of a large class and thus unforeseeable
What was the award in Jebson v MoD?
75% reduction due to P’s contributory negligence
When is there liability for/a duty to rescue?
When D tries to rescue V, but instead exposes V to a new or increased danger
Goldman v Hargrave general
Tall red gum, relight
Reeves v Commissioners of Police for the Metropolis on office of responsibility creating liability for omission
Institutions exercising extensive control over vulnerable people will often owe a DoC to prevent self-injury
Michael v Chief Constable of South Wales judgment
Response to all by police was not AR, and not even AR to ensure she got called back
What two cases should be contrasted in the context of reliance on D’s undertaking of responsibility for C’s wellbeing?
Jebson v MoD and Barrett v MoD
Who said the ‘distinction is not clear’ between acts and omissions in Stovin?
Nicholls
How do L&O distinguish between acts and omissions?
Did D make things worse (act) or did he fail to make things better (omission)? Distinction is one of degree and different duties restrict liberty of action to different extents
What category of case for liability for omission does R v Imperial Tobacco come under?
Undertaking responsibility for C’s wellbeing
Kent v Griffiths general
Asthma attack, ambulance, respiratory failure
Sandhu Menswear v Woolworths judgment
Duty even without previous fires having been lit
Smith v Sussex, per Lord Bingham OBITER
Suggested Capital was a claim for property damage, whilst Kent was for personal injury where insurance is less likely
R v Imperial Tobacco Canada Ltd general
Low-tar cigarettes, no warning
generally accepted employers owe DoC to sick employees
Kasapis v Laimos
East Suffolk Rivers Catchment Board v Kent judgment
Board only AR not to cause FURTHER damage, which they didn’t
What judge in Stradhar emphasised that expert knowledge does not of itself create a duty to use it for the public at large?
Lord Hoffman
Who highlighted liability in a case like Capital would actually benefit fire insurers, not the public?
Winfield and Jolowicz
Bolam v Friern Hospital Management
Medical professional not liable as long as he ‘acted in accordance with a practice accepted as proper by a responsible body of medical men skilled’ in the given area
Who found the Key question was no AR to warn C, and concern over onerous burden of DoC in Mitchell v Glasgow?
Lord Hope
Mitchell v Glasgow CC judgment
No DoC, unanimously decided in favour of Goff’s no foreseeability test in Smith but differed on reasoning
What did trial judge stress in Lowns v Woods?
Doctor was approached in his office, during office hours
Name at least two cases showing liability for omission due to AR
White v Jones; Barnes v Hants; Stradhar v National Environment; Watson v British Boxing
OLL Ltd v SoS for Transport general
Coastguard, children, wrong direction
What case shows liability for omission can arise through occupation of land?
Goldman v Hargrave
Barnes v Hants judgment
School authorities AR for young children, arising from ‘non-verbal conventions’
Who believed the reasons given in Stovin risk overlooking other relevant policy factors?
Kevin Williams
Name two cases on psychiatric patients leading to liability for acts of third parties
Palmer v Tees Health Authority; Selwood v Durham CC
Occupiers’ Liability Act 1957 and 1984
Duty to ensure land is reasonably safe for both trespassers and guests
Hill v Chief Constable of South Yorkshire general
Sutcliffe
Sandhu Menswear v Woolworths general
Combustible material, storage unit
What is the general rule for liability for acts of third parties?
Third party act breaks the chain of causation
How does Williams see the liability recognised in Kent reflected elsewhere?
GP duty through NHS Regulations 1992, which require them to help anyone in their practice area in immediate need if they are available and asked to attend
When did Lord Woolf in Kent suggest the outcome might be different?
If the case was about the allocation of resources
K v SoS for HD judgment
No relationship of proximity as mere knowledge D was a danger to public at large was insufficient
What did Lord Woolf suggest in Kent v Griffiths that was particularly hard to reconcile with Capital and Counties?
Even where there are multiple casualties, there is still a DoC - it will just be about whether it was breached
Hobbs (Farms) v Baxender judgment
Liability for latent defect discovered by consumer may create DoC to warn past consumers
Morrison v Lord Mayor of Sheffield judgment
CoA found DoC regardless of omission because they failed to eliminate the risk in changed circumstances
Why would Kent perhaps not survive Gorringe?
Ambulance services have a statutory power to prevent damage to C, but Gorringe suggests this is insufficient for DoC
Carmarthenshire CC v Lewis general
Nursery, lorry driver
Kasapis v Laimos
generally accepted employers owe DoC to sick employees
Smith v Littlewoods corporation general
Derelict, cinema, teenagers, fire
Lowns v Woods judgment
Foreseeability alone is insufficient, but ‘physical’, ‘circumstantial’ and ‘causal’ proximity gave DoC - doctor approached during office hours , in his office
Minority (Lord Goff) in Smith v Littlewoods
No DoC ever arose, giving 3 conditions for recognising DoC for damage of 3rd
K v SoS for HD general
Rape by foreign citizen
Stradhar v National Environment general
Bangladesh, water
Hobbs (Farms) v Baxender general
Latent defect
School authorities
Barnes v Hants
Epilepsy, 300m
Lowns v Woods
Barrett v MoD judgment
CoA found DoC when senior officer found him, but no DoC solely from broader context suggesting possibility of drunkenness
OLL Ltd v SoS for Transport judgment
No DoC of coastguard
Who said in Kent that it would be ‘offensive to concepts of common humanity’ not to recognise a duty?
Turner J
Barrett v MoD general
Naval airman, vomit.
Kent v Griffiths on doctors and development
Liability can arise not only from careless treatment but unreasonable delay leading to a deterioration in V’s condition
Suicide prisoner, transfer
Reeves v Commissioners of Police for the Metropolis
GP duty through NHS Regulations 1992
Requires them to help anyone in their practice area in immediate need if they are available and asked to attend
What is a positive of the three conditions given by Goff in Smith v Littlewoods?
Favours D as existence of DoC is a question of fact that can be raised as a preliminary issue, avoiding a full trial
Sea wall, 178 days
East Suffolk Rivers Catchment Board v Kent
What judge and in what case gave policy reasons for limiting liability for omissions?
Lord Hoffman in Stovin v Wise
No general duty of good parenting
Barrett v Enfield LBC
Who argued no DoC ever arose in Smith v Littlewoods?
Lord Goff
Capital and Counties on doctors
Doctors are not obliged to be a Good Samaritan
Hahn v Conley
High Court of Australia, no general DoC simply due to a ‘blood relationship’
Childs v Desormeaux
Stewart v Pettie does not apply to ‘social hosts’ unless they enhance the risk
Stradhar v National Environment judgment on AR
AR ONLY where there is intention to benefit a small class
Williams on Bolam v Friern Hospital Management
Emphasises importance of doctors’ ethical obligations being translated into law, in particular the Hippocratic Oath
Reeves v Commissioners of Police for the Metropolis general
Suicide prisoner, transfer
Home Office v Dorset Yacht judgment
HoL agreed on DoC, but disagreed on basis
White v Jones general
Solicitor
In what case did the HoL show a clear preference for Goff’s approach in Smith v Littlewoods?
Mitchell v Glasgow CC
Coastguard, children, wrong direction
OLL Ltd v SoS for Transport
Name at least two cases where question of liability for omission arose out of D undertaking responsibility for C’s wellbeing
Stradhar v National Environment; R v Imperial Tobacco Canada Ltd; Capital and Counties; East Suffolk; OLL v SoS etc.
What is the position in Canada on liability of owners of premises serving alcohol?
Jordan House v Menow - DoC to regular
Lord Pearson, Diplock and Morice in Dorset Yacht
Considered underlying policy factors on existence and scope of DoC
Michael v Chief Constable of South Wales general
Ex-partner, misallocation of call, 60 mins, dead in 15
Palmer v Tees Health Authority
4 year old abduction, nightmares
Mitchell v Glasgow CC general
Council, unpleasant neighbour, meeting
Who criticised a lack of duty of rescue in English law?
Bender
