#5374 - Omissions Liability Notes - Tort Law

Omissions:

Seemingly three types. 1. Causing a danger to arise and not fixing it. 2. Assuming responsibility for a person. 3. Holding a position of responsibility. Then there are public authority liability cases which have normal rules applied to them post-Justiciability test.

• Goldman (Australia) (1967) – Tree hit by lightning. Felled by D but not out properly. Reignited and damaged C’s property.

Lord Wilberforce – rule is that anger caused by a trespasser is D’s responsibility if he had knowledge of it or means of knowledge and fails to take reasonable action to end it. Law for natural danger needs to be the same. This avoids evidential confusion as to how the danger arose, also satisfies logic since source is irrelevant.

• Barrett (1995) – D was head of naval base where C drank to excess on cheap alcohol. X put him to bed but he died by choking in night.

Beldam LJ – To extend duty of care to D for omission to look after C would not be just, fair and reasonable as it would dilute responsibility. As alcohol’s effects vary greatly, to extend the duty to maintain welfare to one to prevent drinking which leads to unconsciousness would be impractical. But court did say that assumption of responsibility for solider led to duty but that this wasn’t breached.

• Stovin (1996) – C had obstructed view due to earth bank but was driving negligently. Council had requested permission to remove mound but received no response. Not their statutory right to proceed anyway.

Lord Hoffmann – Omissions could not normally satisfy the ‘proximity’ requirement. This is because (1) omissions liability inhibits freedom to make moral choices, (2) it would be unfair to pick on one person rather than another in a “good Samaritan” scenario where lots fail be good Samaritans, and (3) economically an act should bear its own costs so that people make choices according to the cost to them: externalities distort our decision-making process i.e. we will be more careless if we can force others to pay for our mistakes.

Even if proximate not fair, just and reasonable to impose duty to act.

• Kent (2000) – Ambulance took 40 minutes to make 6 minute journey and C suffered brain damage he wouldn’t have if on time.

Lord Woolf – For services duty is generally owed to each victim to do their job. Allocation of resources argument might apply usually but here there was no competing interest, they were just slow. Accepting the call had established a duty of care to act.

• Z v. UK (2002) – Z subjected to long-term neglect, behaviour of family reported to social services but the only acted 5 years after first ccomplaint.

Court – State failed to meet Art3 HRA which creates positive obligation to protect children. ???

• Gorringe (2004) – Bus hidden behind rise so C, driving too quick, hit it. Council duty to warn?

Lord Brown – Road users not entitled to rely on highway authority to protect them from hazards beyond quality of road surface. No reason to impose a duty of care in relation to exercise of statutory powers for road markings. D must assume responsibility or create an active danger.

[This case follows Stovin but includes cases of statutory duties in ruling that they don’t create a duty any different from conditions for private individual].

Liability of Public Authorities:

Courts these days ask (1) it is justiciable? (policy v. operational spheres ) (Conor), (2) is there a duty? (Fair, just, reasonable. Policy arguments in third stage of Caparo), (3) is there a breach? (Discretion and whether or not the body was rightly/legitimately acting within it important, Barrett).

• Justiciability:

X and Others (1995) – Cs abused by carers but CC failed to get them onto child protection register.

Lord Browne-Wilkinson –There is a distinction between policy decisions and how they then carry out that policy decision (opening a school v. actual running of that school). Authorities can’t be liable for exercising their discretion in policy (e.g. by allocating monies) but can be for acting so unreasonably that it falls outside of their discretion.

If something a policy matter then court can’t say it fell outside of discretion so not justiciable. Once something is found justiciable we use Caparo. This test is Wednesbury unreasonableness.

Stovin (1996) – Dirt mound case.

Lord Hoffmann – Policy v. Operational sphere distinction inadequate since it is an elusive concept and even if it is clear cut doesn’t necessarily require a duty of care to exist. Instead ask if it is irrational not to exercise the power.

It was within their discretion not to remove the mound since it is not that unreasonable so as to be outside discretion.

Lord Nicholls (Dissent) – spectrum of discretion goes from where it is hard to imagine a duty arising (building of schools) to where little is needed to identify a duty of care (removing dangers from...