Duty of Care - Omissions Flashcards
In which circumstances is there a positive duty to act?
Pre-tort relationships e.g. parent and child, teacher and pupil, contractual relationships
In these situations, D may be liable if they do NOT act to help C
Smith v Littlewood
Exclusionary rule - The common law does not impose liability for pure omissions
Sutradhar v National Environment Research Council
C suffered arsenic poisoning after drinking from a well. C said they had a positive duty to test for arsenic.
Held: ‘they can only be liable for things they did, not what they did not do’
Reasons why there should be no positive duty to act (+ case)
Lord Hoffman, Stovin v Wise
Political - invasion of privacy to impose a duty to protect others
Moral - in situations where there are lots of people in danger there would be an indeterminate class of people who could be liable Economic - this assistance comes as a cost, its unfair to ask someone when there is no rewards for helping
What are the alternatives to our current law on omissions?
The French Penal Code - it is a criminal offence not to assist someone in danger
‘Good Samaritan status’ offered in some states in the US - this offers immunity to those who try to help
- there are arguments with our current law people are afraid to intervene due to liability
Statement about negligence law and omissions…
it favours individualism over collective responsibility
A duty of care will be imposed if the harm is the result of an omission when….
1) D exercises a high degree of control over C OR
2) It is assumed D has a responsibility for C’s safety OR
3) If D creates a dangerous situation (even if accidentally), a positive duty to try and deal with that danger may be imposed
o Reeves v Commissioner of Police for the Metropolis
A duty will be imposed if the harms if a result of an omission if D exercises a high degree of control over C
Facts: prisoner committed suicide due to prison officer’s carelessness. His duty extended to those who were mentally ill because of the known, high risk of suicide in prison and the high degree of control they have over prisoners
CA: difficult when officers have limited resources (Horsey)
Which case clarified Reeves? What was held?
Orange v Chief Constable of West Yorkshire Police - D had a duty to take reasonable steps to assess if the prisoner posed a suicide risk and act accordingly.
Arguably done to ‘put the brakes on’ a widening category of liability, particularly as courts are hesitant to hold PA liable
Which case confirmed Orange v Chief Constable of West Yorkshire Police ?
Keenan v ECHR
Most common example of assuming D has responsibility for C’s safety
Contract/Employment relationships
o Costello v Chief Constable of Northumbria Police
if there is an assumption of responsibility and D’s failure to act leads to avoidable harm, a duty to act will be imposed (overlaps with control)
C was attacked by a prisoner, despite calls for help D (the inspector) did nothing to help
Where a police officer’s omission to another leads to avoidable harm a positive duty to act will be imposed.
Goldman v Hargrave
If D creates a dangerous situation (even if accidentally), a positive duty to try and deal with that danger may be imposed
Facts: A tree caught fire by being struck by lightning. D assumed the fire would go out on its own, he adopted the risk of the fire spreading by making no attempt to put it out. Extensive damage was caused to the neighbouring property after the fire was revived by the wind.
