Liability for omissions and public authorities:
Omissions – The General Principle
Carelessly failing to act means ‘the common law does not impose liability for what are called pure omissions’
(Smith v Littlewoods Organisation Limited [1987] AC 241 per Lord Goff). There is no duty to intervene to prevent
harm. Failing to act and failing to confer benefits means no liability.
There is no duty to intervene to prevent harm:
The rescuer principle: Osterlind v Hill (1928) 263 Mass 73 (compare civil law jurisdictions, e.g. France, where there
is a reasonable rescue obligation)
– Yuen Kun Yeu v Attorney-General of Hong Kong [1988] AC 175 per Lord Keith
o No liability‘… on the part of one who sees another about to walk over a cliff with his head in the
air and forbears to shout a warning.’
– Vellino v Chief Constable of Greater Manchester [2002] 1 W.L.R. 218
o “under our law two persons can stand aside and watch a third jump to his death: there is no legal
duty to rescue” (para [13] per Schiemann LJ)
– Home Office v Dorset Yacht Co Ltd [1970] AC 1004 per Lord Diplock
o “The very parable of the Good Samaritan (Luke 10, v 30) which was evoked by Lord Atkin in
Donoghue v Stevenson illustrates, in the conduct of the priest and of the Levite who passed by on
the other side, an omission which was likely to have as its reasonable and probable consequence
damage to the health of the victim of the thieves, but for which the priest and Levite would have
incurred no civil liability in English law.”
– Michael v Chief Constable of South Wales Police [2015] UKSC 2; [2015] AC 1732
o “English law does not as a general rule impose liability on a defendant (D) for injury or damage to
the person or property of a claimant (C) caused by the conduct of a third party (T)” (para [97] per
Lord Toulson)
o The Police failure to prevent Joanna’s death by her husband, with the emergency call being
classified as non-urgent. The Rescuer Principle is re-stated here, as there is no duty to prevent a
3rd party causing harm to the claimant or their property.
The Ogopogo (only persuasive and not binding on English courts):
– FACTS: D invited M and H on board his pleasure cruiser on a trip across Lake Ontario. While the
vessel was travelling at ten to twelve knots M fell overboard and appeared to lose
consciousness. After abortive rescue attempts had been made H dived in to attempt to save M.
H died of shock from the cold water and M was lost.
– HELD: A defendant is not under any liability to a Claimant if he abandoned rescue operations
once having undertaken them provided that the discontinuance of operations did not leave M in
a worse condition
When is an ‘omission’ really an ‘act’?
Some omissions may be part of ‘causative action’ or a ‘causative train of events.’
Mitchell v Glasgow City Council [2009] 1 AC 874 HL, per Baroness Hale:
1
, – ‘A driver who takes to the roads and thus is an actor in the drama is liable for the things which
he fails to do as well as for the things which he does. His failure to keep a proper lookout, or to
indicate when he proposes to change direction, is an omission. But he took the action of
propelling his car in a particular way.’
Omissions - reasons for the rule:
Causal problems
Duty may constrain individual autonomy (the moral objection)
Difficulty in identifying person to sue (‘why pick on me’)
Duty to act normally founded on contract
Potentially wide (indeterminate class) and burdensome area of responsibility (what is the
standard expected?)
Doesn’t deter the person who initially causes the harmful situation (if a third party)
Economically efficient for an activity to bear its own costs
Economic Efficiency - Stovin v Wise [1996] AC 923 per Lord Hoffmann
– [T]he efficient allocation of resources usually requires an activity should bear its own costs. If it
benefits from being able to impose some of its costs on other people (what economists call
“externalities”) the market is distorted because the activity appears cheaper than it really is. So
liability to pay compensation for loss caused by negligent conduct acts as a deterrent against
increasing the cost of the activity to the community and reduces externalities. But there is no
similar justification for requiring a person who is not doing anything to spend money on behalf
of someone else. Except in special cases . . . English law does not reward someone who
voluntarily confers a benefit on another. So there must be some special reason why he should
have to put a hand in his pocket
Omissions – Exceptions to the Rule
Michael v Chief Constable of South Wales Police [2015] UKSC 2; [2015] AC 1732
“The rule is not absolute. Apart from statutory exceptions, there are two well recognised types of
situation in which the common law may impose liability for a careless omission”. Lord Toulson’s Two
Bases for Exception:
– The first is where D was in a position of control over T and should have foreseen the likelihood
of T causing damage to somebody in close proximity if D failed to take reasonable care in the
exercise of that control (Michael, [99])
– The second general exception applies where D assumes a positive responsibility to safeguard C
(Michael, [100])
Smith v Littlewoods [1987] AC 241 (HL)
– “That there are special circumstances in which a defender may be held responsible in law for
injuries suffered by the pursuer through a third party's deliberate wrongdoing is not in doubt.
For example, a duty of care may arise from a relationship between the parties, which gives rise
to an imposition or assumption of responsibility upon or by the defender, as in Stansbie v
Troman [1948] 2 K.B. 48, where such responsibility was held to arise from a contract. In that
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Omissions – The General Principle
Carelessly failing to act means ‘the common law does not impose liability for what are called pure omissions’
(Smith v Littlewoods Organisation Limited [1987] AC 241 per Lord Goff). There is no duty to intervene to prevent
harm. Failing to act and failing to confer benefits means no liability.
There is no duty to intervene to prevent harm:
The rescuer principle: Osterlind v Hill (1928) 263 Mass 73 (compare civil law jurisdictions, e.g. France, where there
is a reasonable rescue obligation)
– Yuen Kun Yeu v Attorney-General of Hong Kong [1988] AC 175 per Lord Keith
o No liability‘… on the part of one who sees another about to walk over a cliff with his head in the
air and forbears to shout a warning.’
– Vellino v Chief Constable of Greater Manchester [2002] 1 W.L.R. 218
o “under our law two persons can stand aside and watch a third jump to his death: there is no legal
duty to rescue” (para [13] per Schiemann LJ)
– Home Office v Dorset Yacht Co Ltd [1970] AC 1004 per Lord Diplock
o “The very parable of the Good Samaritan (Luke 10, v 30) which was evoked by Lord Atkin in
Donoghue v Stevenson illustrates, in the conduct of the priest and of the Levite who passed by on
the other side, an omission which was likely to have as its reasonable and probable consequence
damage to the health of the victim of the thieves, but for which the priest and Levite would have
incurred no civil liability in English law.”
– Michael v Chief Constable of South Wales Police [2015] UKSC 2; [2015] AC 1732
o “English law does not as a general rule impose liability on a defendant (D) for injury or damage to
the person or property of a claimant (C) caused by the conduct of a third party (T)” (para [97] per
Lord Toulson)
o The Police failure to prevent Joanna’s death by her husband, with the emergency call being
classified as non-urgent. The Rescuer Principle is re-stated here, as there is no duty to prevent a
3rd party causing harm to the claimant or their property.
The Ogopogo (only persuasive and not binding on English courts):
– FACTS: D invited M and H on board his pleasure cruiser on a trip across Lake Ontario. While the
vessel was travelling at ten to twelve knots M fell overboard and appeared to lose
consciousness. After abortive rescue attempts had been made H dived in to attempt to save M.
H died of shock from the cold water and M was lost.
– HELD: A defendant is not under any liability to a Claimant if he abandoned rescue operations
once having undertaken them provided that the discontinuance of operations did not leave M in
a worse condition
When is an ‘omission’ really an ‘act’?
Some omissions may be part of ‘causative action’ or a ‘causative train of events.’
Mitchell v Glasgow City Council [2009] 1 AC 874 HL, per Baroness Hale:
1
, – ‘A driver who takes to the roads and thus is an actor in the drama is liable for the things which
he fails to do as well as for the things which he does. His failure to keep a proper lookout, or to
indicate when he proposes to change direction, is an omission. But he took the action of
propelling his car in a particular way.’
Omissions - reasons for the rule:
Causal problems
Duty may constrain individual autonomy (the moral objection)
Difficulty in identifying person to sue (‘why pick on me’)
Duty to act normally founded on contract
Potentially wide (indeterminate class) and burdensome area of responsibility (what is the
standard expected?)
Doesn’t deter the person who initially causes the harmful situation (if a third party)
Economically efficient for an activity to bear its own costs
Economic Efficiency - Stovin v Wise [1996] AC 923 per Lord Hoffmann
– [T]he efficient allocation of resources usually requires an activity should bear its own costs. If it
benefits from being able to impose some of its costs on other people (what economists call
“externalities”) the market is distorted because the activity appears cheaper than it really is. So
liability to pay compensation for loss caused by negligent conduct acts as a deterrent against
increasing the cost of the activity to the community and reduces externalities. But there is no
similar justification for requiring a person who is not doing anything to spend money on behalf
of someone else. Except in special cases . . . English law does not reward someone who
voluntarily confers a benefit on another. So there must be some special reason why he should
have to put a hand in his pocket
Omissions – Exceptions to the Rule
Michael v Chief Constable of South Wales Police [2015] UKSC 2; [2015] AC 1732
“The rule is not absolute. Apart from statutory exceptions, there are two well recognised types of
situation in which the common law may impose liability for a careless omission”. Lord Toulson’s Two
Bases for Exception:
– The first is where D was in a position of control over T and should have foreseen the likelihood
of T causing damage to somebody in close proximity if D failed to take reasonable care in the
exercise of that control (Michael, [99])
– The second general exception applies where D assumes a positive responsibility to safeguard C
(Michael, [100])
Smith v Littlewoods [1987] AC 241 (HL)
– “That there are special circumstances in which a defender may be held responsible in law for
injuries suffered by the pursuer through a third party's deliberate wrongdoing is not in doubt.
For example, a duty of care may arise from a relationship between the parties, which gives rise
to an imposition or assumption of responsibility upon or by the defender, as in Stansbie v
Troman [1948] 2 K.B. 48, where such responsibility was held to arise from a contract. In that
2
