Summary Negligence - Omission PQ Notes (First Class)

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