#2333 - Misfeasance And Nonfeasance - Tort Law

Misfeasance and Nonfeasance

What is misfeasance and nonfeasance

• Misfeasance = Making things worse

• Nonfeasance = failing to make things better

Why do we need a distinction?

• Arguments against a distinction

  • Donoghue v Stevenson [1932]:

    • Lord Atkin:

      • Question for lawyers = who is my neighbour that I should take reasonable care to avoid damaging them?

      • Answer = persons who directly affected by X’s act

        • that S ought reasonably to have them in contemplation as being so affected

          • when X directs his mind to the acts or omissions which are called in question

  • Dorset Yacht

    • Lord Reid:

      • Lord Atkin’s speech can be considered a statement of principle that isn’t statutory definition but it ought to apply unless there is some justification or excuse.

• Arguments for a distinction

  • Logie:

    • It is not the function of law to enforce moral values

      • Lord Goff in Smith v Littlewoods [1987]:

        • Cannot be punished for “pure omissions”

          • e.g. Where the adult Z sees a drowning child in a paddling pool and does nothing to save him.

        • Morally might be repugnant but this is beside the point.

    • Law should not restrict individual liberty by burdening people with affirmative duties

      • Lord Hoffmann in Stovin v Wise [1996]

        • “One thing to compel someone when doing something to take reasonable care.

          • Quite another to compel someone who is doing nothing in particular to prevent another coming to harm.”

    • Economic Argument

      • McIvor: if someone voluntarily undertakes to do something, it is right that they expend time, energy and money to do it so that others are not harmed

        • This argument has no effect where people are forced to do something out of legal compulsion, despite the burdens upon them.

  • Smith and Burns

    • Clear Causal distinction

      • If X knows that giving 100 to a charity will save an African child, but declines to do so, X is not responsible for the child’s death.

        • It can only be said that he let the child die

        • This is fundamental if we are to conceive of ideas of responsibility and culpability

    • Difference between acts and omissions

      • Grounds for liability for nonfeasance are different for grounds of liability for action

        • You have to show some form of obligation to go with nonfeasance

          • Therefore, b/c so different, misfeasance and nonfeasance can’t be adequately dealt with in terms of a single principle.

    • Lord Atkin did not intend there to be no distinction

      • Nonfeasance does not even fall within the rule of Dongoghue, this case about causing damage through an action – e.g. negligent manufacturing.

        • While Donghue talked about “people being so directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions called in question”

          • But by “omissions”, Lord Atkin must have meant omissions that are parts of actions (e.g. failing to apply brakes) –not merely letting something happen

Why do we need exceptions then?

• Honore:

  • “Norms imposing Distinct Duties”

    • Degree of blameworthiness to be attached to omission is determined by norm it violates

      • Normally worse to violate norm through positive conduct than negative conduct

        • But are certain “norms imposing distinct duties” which are so important that their violation by any means will attract reproach

    • These are:

      • Where agent creates risk of harm

      • Agent occupies position of responsibility

      • Agent is well placed to meet the need, such position creating a situation of dependency

      • Agent is recipient of the benefit

      • Agent has given an undertaking

  • Isn’t this just morality?

    • McIvor: law isn’t compelled to follow morality – but doesn’t mean it is incompatible.

• McIvor:

  • Problem isn’t that the rule against omissions is wrong

    • Or that there is recognition that exceptions are needed

      • It’s just that the exceptions are rather vaguely worded

      • And have been developed on an ad-hoc basis.

• Markensis: could just exclude basic rule and then exclude most omission based claims on the “duty of care” stage of ordinary negligence principles.

The exceptions where you can be compelled to act

1. Assumption of Responsibility to do something where no action is then taken

• Calvert v William Hill Credit Ltd [2009]: WH fail to close C’s gambling account when he asks them to do so despite assuring him this will be done. C then compulsively gambles

  • Sir Anthony May P:

    • Where D voluntarily assumes responsibility to do something for C

      • And D fails to carry this thing out meaning C comes to harm owing to D’s omission

        • Then a duty has arisen to C and is then breached by D.

2. Certain cases where a third party causes damage to C owing to an omission by D

• 2 Alternative approaches

  • Smith v Littlewoods [1987]:

    • Lord Mackay

      • You can be liable for the independent acts of others if

        • Owing to your act or omission the reasonable person would consider the acts/consequences of the third party to be “highly likely”

        • AND C has no possibility of securing themselves from the threat

  • OR Lord Goff

    • Must be restricted to certain specific cases,

      • otherwise places an intolerable burden on people to prevent damage not necessarily of their own making to other people’s property

• Lord Goff’s view was preferred by HoL

  • Mitchell v Glasgow City Council [2009]

    • Lord Scott: It is a feature of the common law that liability in negligence is not imposed for a “mere” omission

      • There needs to be a requisite additional feature to transform this (perhaps) breach of moral obligation into a breach of legal duty.

  • McIvor: exceptions seem now to be swallowing the general rule....

Lord Goff’s Exceptions where you are liable for third party acts against others:

• Mitchell v Glasgow City Council [2009]:

  • Lord Roger:

    • In all these situations, it is D’s wrongful act itself which provides the opportunity for the third party to injure C

• 1. Special contractual arrangement between D and C

  • Such as a painter agreeing to look after C’s property, but leaving the door undone so that a thief can steal some property.

• 2. Creating a source of danger sparked off by foreseeable actions of a third party

  • Haynes v Harwood [1935]: It was reasonable foreseeable that leaving a horse pulling a van not sufficiently restrained in a crowded public place might cause the horse might bolt and injure people

    • Hence-why a claimant would be entitled to collect damages from a defendant

      • Despite the fact it was not the defendant’s direct actions causing the damage, but a third party’s

• 3. Failing to take reasonable steps to abate a danger created by a third party/nature

  • Goldman v Stone [1967]

    • Evidence of previous attempts/ trespass of others on D’s property trying to start fires

      • D did nothing to prevent them e.g. calling the police/ warning neighbours/ securing doors – C’s property damaged by said acts of third parties.

        • Reasonable person of the same means and circumstances would have taken precautions.

          • D should also be held as negligent.

  • However, this is subject to the following provisos where D did not create the danger by their own actions

    • Physical fitness/circumstances of D

      • Goldman v Hargrave [1967]:

        • Privy Council:

          • Standard expected is that which is reasonable to expect of him in his individual circumstances

            • Less must be expected of the infirm than the able bodied...and D should not be liable unless it is clearly proved that he could,

              • and reasonably in circumstances should,

              • have done more

    • Expense and means to put the defect right

      • Leakey v National Trust [1980]:

        • Megaw LJ:

          • While the defect remains "latent" there is no duty on the occupier, whether its created by man or nature

            • Equally, once the latent becomes patent, a duty will arise, whether the causative agent of the defect is man or nature.

            • But the mere fact that there is a duty does not necessarily mean that inaction constitutes a breach of the duty

          • If there is inaction, or insufficient action taken to remedy the breach

            • Because D is unable to afford said work or it would be very difficult to do so

              • Then this should be taken into account when assessing whether any duty has been breached.

• 4. Special relationship between D and third party

  • Home Office v Dorset Yacht Co [1970]:

    • Lord Reid (Foreseeability approach): where reasonably foreseeable that acts of X will result from D’s lack of action

      • D will be responsible for the consequences of those acts

    • Lord Diplock(maj) (Proximity approach):

      • Where there is a special relationship between responsible D and irresponsible X

      • And C falls within class of victims of sufficient proximity

        • that the acts of X are highly likely/foreseeable to cause C damage.

Omissions and public bodies rather than private actors

Where there is a failure to exercise a statutory powers

• Stovin v Wise

  • Lord Hoffmann (maj)

    • Two minimum conditions for basing a duty of care on the existence of a statutory power in respect of an omission to exercise the power.

      • It must have been irrational for authority not to have exercised the power so that there was in effect a public law duty to act;

      • and there must be exceptional grounds for holding that policy of statute conferred right to compensation on those who suffered loss if power was not exercised.

    • The fact that Parliament has conferred discretion on public body, rather than duty,

      • was some indication that policy of statute was not to create a right to compensation.

  • Lord Nicholls (min):

    • Anns clearly laid down that in certain circumstances a public authority would be under a common law duty to...