Duty of Care: Omissions

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Introduction

The law takes a restrictive approach to imposing liability in relation to omissions: see the cases of Smith v Littlewoods Organisation Ltd [1987] and Stovin v Wise [1996]

  • In other words, the law has not been overly willing to impose liability for neglgience on someone who has simply omitted to act in a situation
  • There are four exceptions to this general rule of non-liability for mere omissions - see below

Omissions of public bodies

Stovin v Wise [1996]: the House of Lords held (3:2) that the public body in the case was not liable for their omission. It was said the public body had the power to act but not a duty to act.

Gorringe v Calderdale [2004]: the local authority was not held to be liable for their omission

Mitchell v Glasgow City Council [2009]: the council was not held to be liable for their omission

EXCEPTIONS to the rule of non-liability for mere omissions

In other words, Lord Goff in Smith v Littlewoods Organisation Ltd [1987] listed 4 scenarios where someone (i.e. a defendant) will be guilty of negligence where there has been an omission:

  1. The Defendant has a special relationship with the Claimant
  2. The Defendant has a special relationship with a Third Party
  3. The Defendant has created the danger that is sparked off by a Third Party
  4. The Defendant fails to take reasonable steps to abate a danger created by a Third Party

>1) The defendant has a special relationship with the claimant

a) The Claimant is dependent on the Defendant

So a defendant may be liable for an omission where the claimant is dependent on them

For example, a child is dependent on their parents. So, a parent may be liable for an omission to act in a situation involving their child

Also, a school may be liable for railing to safeguard pupils against injury or meeting educational needs: Carty v Croydon London Borough Council [2005]

A mental hospital may be liable for an omissions to act in a situation involving a patient (Savage v South Essex Partnership NHS Foundation Trust [2010])

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CONTENT

b) Other relationship with the claimant

Fowles v Bedfordshire CC [1995]: gym instructor's omission was enough to establish liability

Barret v Ministry of Defence [1995]: the MOD were liable when people moved a drunk guy out of the room they were in and later died

2) The defendant has a special relationship with a Third Party

Summary

If the defendant has a special relationship with a third party, who cause some kind of damage, then the defendant may be liable for their actions (despit not actually doing anything)

For example, in Home Office v Dorset Yacht Club [1970], the defendant was liable as they had a relationship of control over the third parties (young male offenders) who caused damage to a boat

3) The defendant has created the danger sparked off by a Third Party

Summary

See, for example, the case of Haynes v Harwood [1935] for the best demonstration of this

4) The defendant fails to take reasonable steps to abate a danger created by a Third Party

Summary

The general rule is that there is no duty of care to prevent others from causing damage

However, see the case of Clark Fixing Ltd v Dudley Metropolitan BC [2001]

Safety services cases

Summary

There is one question that still must be coveredL are the safety services (i.e. fire, police, ambulance, coastguards) liable when they muck up?

Conaghan and Mansell are highly critical with the law in relation to emergency services → "These decisions are troubling because of a sense we have that rescue services ought to be responsible if they do not do their job properly"

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