#19878 - Occupiers Liability - Tort Law

SUPERVISION 3 OCCUPIERS’ LIABILITY CLAIMS AND OTHER CLAIMS FOR OMISSIONS

The reluctance to impose liability or omissions (reading list)

McBride and Bagshaw

Acts and omissions (4.3C)

• A does something to make B worse off – act

• A doesn’t do something to make B better – omission

Liberty – invaded more if you have to do something than if you can’t do something. Usually only special relationships that generate a duty to act.

Duty of Care: Omissions, the Basics (6.1)

Keep in mind

1. Why is it much harder to establish D owed C a duty of care to save C from harm in an omissions case than it is where D commits a positive act causing harm carelessly.

2. When does a public body have a duty to save C when they are in a good position to do so?

3. When will D owe C a duty of care to save from harm individually?

Generally, foreseeability of harm on its own is never enough to establish a duty of care to help someone.

1. Acts and Omissions (again)

Some can be a bit tricky. For example, if Engineer tells someone their car is fixed when he didn’t bother to check, this is an act. He told the person their car is fixed when it wasn’t, it doesn’t matter that he omitted to check the car.

2. Private Persons

Jurisprudence! Why does the law draw a line between acts and omissions so that it’s unusual for private people to owe others a duty of care to save from harm?

Kantian theorists argue that ‘Tort duties protect each person’s ability to use his or her means as he or she sees fit, free from the interferences of others’.

Let’s unpack: This means that tort duties only seek to protect people’s abilities to decide what to do with the means at their disposal. Each of us enjoys a right to independence – only time the law can interfere with your independence is if it’s to protect someone else’s independence.

SO: back to the baby drowning scenario. Kantian theorists argue it would be wrong to impose a duty on me to same the baby because it interferes with my right to independence – I no longer have a choice on what I can expend my bodily strength on. And because a potential duty can’t be justified on the grounds that it will help protect the baby’s independence, it doesn’t work. If I saved the baby, they would no longer be free to decide what to do with their strength, so I respect their independence by leaving them to drown. (can’t you argue that by saving them you give them more chances to exercise their independence because they’re still alive, even if this is at the cost of briefly interrupting your independence it seems completely worth it.)

Arguments in favour of only imposing a duty to rescue in very limited circumstances:

1. Intrusiveness. Liberty argument, use Stoven v Wise if you want.

2. Certainty. Richard Epstein uses the slippery slope argument. Rather than trying to legislate to draw a line in where a duty to rescue should apply, there being no general one sets a clear, principled outline.

3. Moral crowding out. Means we can’t have moral acts and feel good about them. So say if I give homeless man some food, I feel good. If I’m under a legal duty, it doesn’t feel as good. The man feels entitled to his food if I’m under a legal duty and shows no gratitude. strips interaction of moral value. People should be able to choose what they morally can and can’t do.

   1. pretty poor argument. You have to take the view that law shouldn’t promote morality. And you’d also have to argue the increase in food to homeless people would be outweighed by them not showing gratitude.

4. Preserving autonomy. Law should allow people to make stupid decisions. You don’t have to live reasonably all the time. You don’t have to act from a book of dicta. So in order to retain some sense of people as autonomous beings, you have to leave them some freedom from legislation. (Is this one of those areas though?)

5. Deterring rescue. Will placing a duty on me to rescue the baby actually benefit the baby? Well, if I’m legally supposed to help baby, I might just walk past and pretend I wasn’t there to avoid the effort. Pretty weak argument. Would be better to argue you’d get in the way of bystanders. Would be better to argue if you bodge the rescue, you’re in trouble so it should be a choice if they think they have the skills to pull it off.

6. Unfairness. If there are a crowd of people at the lake watching the baby drown, I might be sued because I’m the only one that’s traceable. So, I’d foot the entire bill when I wasn’t the only one who didn’t act on my hypothetical duty to rescue. If the others are untraceable, I can’t even bring a claim in contribution. This seems incredibly unfair on the person. ‘Why pick me?’.

7. Individual responsibility. If someone else is responsible for the baby drowning in the lake, why should I be under a duty to save it? This would dilute the responsibility of the person who should be looking after the baby in the first place. Say for the sake of argument we are allowed to assume the baby was wholly responsible for his actions and we can’t attribute responsibility to anyone else for him being in the lake drowning (rare case). If I don’t want to save him then, should I be suable? Textbook thinks not – baby wholly got himself into the mess, I shouldn’t have to get him out. If there was a duty, he would be able to sue me for damages.

New scenario. Say A and B get into an argument and A stabs B and leaves. C, a doctor who could 100% save B, walks by and ignores B also. B dies. The main problem here is that although A caused B’s death, C would also have to share responsibility if a duty exists.

3. Public bodies

Two approaches to seeing if a public body owed a duty of care in an omissions case:

the uniform approach

General principle: same rule that applies to private person should apply to public body. So, if private person doesn’t owe duty of care, nor should public body. Interestingly, this lines up with Dicey’s equality before the rule of law idea.

Capital & Counties plc v Hampshire CC – two groups of appeals here. The first type involved the fire brigade turning off sprinklers (for some reason) in a building on fire fire spread more. Held: they had a duty of care not to turn off the sprinklers because anyone else would have also owed that same duty – there was a foreseeable effect that turning off sprinklers would increase harm. In the second set of appeals, the firemen had failed to properly deal with the fire so the fire destroyed some buildings. As a private person wouldn’t have owed a duty of care to take reasonable steps to deal with the fire, neither did the fire brigade. The judge further said if they are late or don’t turn up at all, nothing changes.

the public policy approach

General principle: public bodies’ll owe a duty unless there’s a public policy reason not to.

Textbook doesn’t like this approach – says academics are too enamorado with it. The public policy approach initially appeared in Anns v Merton LBC but the test used to determine a duty has now been overturned. If you wanted to force a public policy interpretation on Hill v CC West Yorkshire, you would ignore the part where Lord Keith said there’s no special relationship between the police and Hill so they owe no duty of care and skip to the part where he says it would be bad to allow people to take action against police for not catching criminal because:

1. Doesn’t add to the current incentives the police have to catch bad guys

2. Possibility of being sued police waste time and act ‘defensively’ when investigating crimes

3. Courts aren’t competent to deal with if a police investigation is adequate

4. Resolving issues they’re forced to would take up too much time/money

Textbook argues: Hill was not decided on policy approach entirely. Somewhat connectedly, the police aren’t specially immune to being prosecuted for not catching crime as there was no rule for them to be immune from – they, like other public bodies, wouldn’t be charged for this.

X v Bedford County Council – Local authority failed to protect a child being sexually abused. Judges took the public policy approach and said no duty of care so the council can act properly and freely without the threat of litigation hanging over them. Could have also reached the same conclusion with uniform approach – a private citizen wouldn’t have had a duty to save child from sexual assault had they known, so neither does public body.

The ultimate showdown uniform v public policy approaches, Michael v CC South Wales Police. Joanna Michael made a call to the police saying she was about to be killed. Due to operational errors, the police took over 20 minutes to arrive and Michael was dead when they got there. Michael’s estate sued, saying the police had owed her a duty of care in handling the call:

• Uniform approach – no duty as an ordinary private citizen wouldn’t have owed one.

• Public policy – there doesn’t seem to be a good policy reason to exempt the police from this duty duty.

By a 5:2 majority, the Uniform approach won out.

1. Why the uniform approach? Many reasons for not applying a duty to rescue for private citizens don’t apply to public bodies. For example, the liberty argument doesn’t work – the police are supposed to act on calls such as that in Michael anyways. So why the uniform approach?

   1. It would be wrong to treat public bodies/servants worse than private citizens. This would amount to punishing the state for doing good, and punishing individuals for choosing a life of public service over self-interest (potentially dubious). So in Michael, if the police had a duty, the ‘why pick on me’ argument applies – why punish the phone operator when...