Duty of Care – Liability for Omissions and Third Parties
a. Not tested for Essay, only PQ
Introduction
General rule: No duty of care for failure to confer a benefit (omission), regardless of
how easy it is to act (Poole) regardless of whether D is a public or private body
If D has made situation worse, positive act. If D has not made anything better, failure to
confer a benefit
b. Omissions – Policy Reasons
Stovin v Wise
o Policy reasons why there is no duty of care for failure to confer a benefit
o Political: Less of an invasion of an individual’s freedom for the law to require him to
consider the safety of others in his actions than to impose upon him a duty to act
o CA: Local authority is not an individual does not need individual freedom
acceptable to restrict their freedom
o Moral: Duty to prevent harm to others may apply to a large and indeterminate class
of people who may be able to help not justified for a specific person to be liable
o Economic: Individuals should only have to pay for the costs of their actions
should not internalize costs when they do not act
Note: In older cases, the court cared about public policy consequences but Robinson,
Poole have rejected this court now only considers whether D had assumed responsibility
to C
No duty of care for failure to confer a benefit, subject to four exceptions
Robinson: No duty of care for failure to confer a benefit, subject to four exceptions from
Tofaris and Steel’s article
o A assumed a responsibility to protect B from that danger
o A has done something which prevents another from protecting B from that danger
o A has a special level of control over that source of danger
o A’s status creates an obligation to protect B from that danger
o But neither Robinson or Poole explores how these exceptions apply and court did
not wholly approve of the article (Tofaris and Steel argued that the police fall under
exception four, but court disagreed in Robinson)
, Duty of Care – Liability for Omissions and Third Parties
PQ Approach
General rule: No duty of care for failure to confer a benefit, regardless of how easy it is
to act (Poole) regardless of whether D is a public or private body
Exceptions in Robinson, but not explored
Consider other cases where duty of care is applied
c. Liability for Omissions
Categories
o D created a risk
o D assumed responsibility for C’s welfare
o D’s status as holding an office/position of responsibility
ci. Creating a risk
Morrison
o Local authority planted trees, protected it with iron bars. During a blackout, C
walked along the street injured his eye
o Held that D had created the risk (negligently failed to remove the iron bar during
blackout) had duty of care to C
cii. Assumption of Responsibility
Robinson
o Assumption of responsibility as a positive act that falls into established categories
of duty of care no need to consider further
o Lord Hughes: Problem between distinction of failure to confer a benefit and a
positive act most cases can be analysed in terms of either. Michael could be a
cause of failing to take reasonable steps to prevent harm caused by a third party, or
a series of positive acts (eg. misreporting the call)
Mitchell
o Third party who threatened C local authority had a meeting with third party and
warned him to stop threatening C after meeting, third party murdered C
o Argued that local authority had a duty to take reasonable steps to warn C of the
meeting + inform the police
o Held that foreseeability alone is insufficient for a duty of care. Local authority had
not assumed responsibility for the criminal attacks of the third party
o Landlords have no duty of care in respect to the behaviour of third parties need
an assumption of responsibility to have a duty of care
a. Not tested for Essay, only PQ
Introduction
General rule: No duty of care for failure to confer a benefit (omission), regardless of
how easy it is to act (Poole) regardless of whether D is a public or private body
If D has made situation worse, positive act. If D has not made anything better, failure to
confer a benefit
b. Omissions – Policy Reasons
Stovin v Wise
o Policy reasons why there is no duty of care for failure to confer a benefit
o Political: Less of an invasion of an individual’s freedom for the law to require him to
consider the safety of others in his actions than to impose upon him a duty to act
o CA: Local authority is not an individual does not need individual freedom
acceptable to restrict their freedom
o Moral: Duty to prevent harm to others may apply to a large and indeterminate class
of people who may be able to help not justified for a specific person to be liable
o Economic: Individuals should only have to pay for the costs of their actions
should not internalize costs when they do not act
Note: In older cases, the court cared about public policy consequences but Robinson,
Poole have rejected this court now only considers whether D had assumed responsibility
to C
No duty of care for failure to confer a benefit, subject to four exceptions
Robinson: No duty of care for failure to confer a benefit, subject to four exceptions from
Tofaris and Steel’s article
o A assumed a responsibility to protect B from that danger
o A has done something which prevents another from protecting B from that danger
o A has a special level of control over that source of danger
o A’s status creates an obligation to protect B from that danger
o But neither Robinson or Poole explores how these exceptions apply and court did
not wholly approve of the article (Tofaris and Steel argued that the police fall under
exception four, but court disagreed in Robinson)
, Duty of Care – Liability for Omissions and Third Parties
PQ Approach
General rule: No duty of care for failure to confer a benefit, regardless of how easy it is
to act (Poole) regardless of whether D is a public or private body
Exceptions in Robinson, but not explored
Consider other cases where duty of care is applied
c. Liability for Omissions
Categories
o D created a risk
o D assumed responsibility for C’s welfare
o D’s status as holding an office/position of responsibility
ci. Creating a risk
Morrison
o Local authority planted trees, protected it with iron bars. During a blackout, C
walked along the street injured his eye
o Held that D had created the risk (negligently failed to remove the iron bar during
blackout) had duty of care to C
cii. Assumption of Responsibility
Robinson
o Assumption of responsibility as a positive act that falls into established categories
of duty of care no need to consider further
o Lord Hughes: Problem between distinction of failure to confer a benefit and a
positive act most cases can be analysed in terms of either. Michael could be a
cause of failing to take reasonable steps to prevent harm caused by a third party, or
a series of positive acts (eg. misreporting the call)
Mitchell
o Third party who threatened C local authority had a meeting with third party and
warned him to stop threatening C after meeting, third party murdered C
o Argued that local authority had a duty to take reasonable steps to warn C of the
meeting + inform the police
o Held that foreseeability alone is insufficient for a duty of care. Local authority had
not assumed responsibility for the criminal attacks of the third party
o Landlords have no duty of care in respect to the behaviour of third parties need
an assumption of responsibility to have a duty of care
