Duty of Care - Omissions and Third Parties PDF

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Tort Law

Lecture 4 Duty of Care: Omissions and Third Parties

Establishing Duty is Critical Remember the words of Lord Buckmaster in his dissent in Donoghue v Stevenson: ‘The question of liability for negligence cannot arise at all until it is established that the [person] who has been negligent owed some duty to the person who seeks to make [them] liable for [their] negligence’. Lord Buckmaster, p 57 Omissions: General Rule Mere failure to act is generally not actionable.  The public are not obliged to help another person if their actions have not caused the situation Stovin v Wise [1996] AC 923 • No positive duty to act: no liability for pure omissions. • ‘… it is one matter to require a person to take care if he embarks on a course of conduct which may harm others… It is another matter to require a person, who is doing nothing, to take positive action to protect others from harm for which he was not responsible, and to hold him liable in damages if he fails to do so’ (Lord Nicholls, p 930). • ‘[T]he recognised legal position is that the bystander does not owe the drowning child or the heedless pedestrian a duty to take steps to save him. Something more is required than being a bystander. There must be some additional reason why it is fair and reasonable that one person should be regarded as his brother's keeper and have legal obligations in that regard. When this additional reason exists, there is said to be sufficient proximity.’ • Lord Nicholls, p 931 Exception 1: Control Exception to the general rule if someone is in control of another person, i.e. if you see someone drowning in a lake, however that someone is your child. Reeves v Commissioner of Police for the Metropolis [2000] 1 AC 360 (HL), per Lord Hoffman (see pp 368-370): ‘He [the commissioner] accepts that he owed a duty of care to Mr Lynch to take reasonable care to prevent him from committing suicide.’ ‘Because the police were under a duty to take reasonable care not to give Mr Lynch the opportunity to kill himself, the common sense answer to the question whether their carelessness caused his death is “Yes”. Because Mr Lynch also had responsibility for his own life, the common sense answer to the question whether he caused his own death is “Yes”. Therefore, both causes contributed to his death.’

Exception 2: AoR – Assumption of Responsibility From the point where others step in to assist or help an individual, they have assumed a duty of care for that individual and must take reasonable care of them. Barrett v Ministry of Defence [1995] 3 All ER 87, per Beldam L J (pp 1224-1225): ‘To dilute self-responsibility and to blame one adult for another's lack of self-control is neither just nor reasonable and in the development of the law of negligence an increment too far.’

Tort Law

Lecture 4

Kent v Griffiths [2000] 2 WLR 1158, per Lord Woolf (para 9): ‘By contrast [to the fire brigade], once a call to an ambulance service has been accepted, the service is dealing with a named individual upon whom the duty becomes focused. Furthermore, if an ambulance service is called and agrees to attend the patient, those caring for the patient normally abandon any attempt to find an alternative means of transport to the hospital.’ ‘Until he collapsed, I would hold that the deceased was in law alone responsible for his condition. Thereafter, when the defendant assumed responsibility for him, it accepts that the measures taken fell short of the standard reasonably to be expected.’ Exception 3: Creating or Adopting Risk A duty of care may arise if D creates a danger or if D takes positive action and makes the situation worse.  

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Goldman v Hargrave [1967] 1 AC 645 – Adopting Risk Yetkin v Mahmood and another [2010] EWCA CIV 776, per Smith L J (para 33) – Creating Risk: o ‘The planting of vegetation in the raised beds of the central reservation is obviously a reasonable exercise of the authority's powers but to plant shrubs which will grow so large as to obscure the view and then not to ensure that they are trimmed back is a negligent exercise of those powers.’ Counties v Hampshire County Council [1997] QB 1004 (see pp 1030-1031): o ‘… the fire brigade is not under a common law duty to answer the call for help, and are not under a duty to take care to do so. If, therefore, they fail to turn up, or fail to turn up in time… they are not liable.’ o ‘But where the rescue/protective service itself by negligence creates the danger which caused the plaintiff's injury… the plaintiff can recover.’

Third Parties (TP): General Rule There is no general duty of care incumbent upon D for the acts of third parties.

Defendant (D)

Third Party (TP)

Claimant (C)

The Exceptions Per Lord Goff in Smith v Littlewoods [1987] AC 241, 272-275, a duty of care exists if: • D exercises supervision and control over TP • D assumes responsibility for C’s welfare • D creates a source of danger and TP worsens this danger

Tort Law • •

Lecture 4

D (Q: an occupier only?) fails to abate a known danger created by TP The first three were more recently affirmed in Mitchell v Glasgow City Council [2009] 1 AC 874, per Hope L J (para 23) and Brown L J (para 82).

Exception 1: Control / D-TP Dorset Yacht v Home Office [1970] AC 1004: ‘The Borstal boys were under the control of the defendants' officers, and control imports responsibility. The boys' interference with the boats appears to have been a direct result of the defendants' officers' failure to exercise proper control and supervision’ (Lord Pearson, p 1055). ‘… that action must at least have been something very likely to happen… I do not think that a mere foreseeable possibility is or should be sufficient (Lord Reid, p 1030). Exception 2: AoR/D-C Palmer v Tees HA [2000] PIQR P1: D: Tees Health Authority, C: parent of the victim (V) (Rosie), TP: perpetrator (Armstrong). ‘The offences committed by Armstrong are said to have been caused by the negligence of the defendants. A large number of particulars of negligence are alleged… It is said that they caused or permitted him to be discharged from hospital when they should not have done’ (p 4). Did there exist a pre-tort relationship of proximity between D and C (through their daughter, V)? Exception 3: Risk Creation TP’s actions exacerbate a danger created by D. Haynes v Harwood [1936] Topp v London Country Buses [1993] 1 WLR 976 Exception 4: Failure to Abate a Known Danger Smith v Littlewoods [1987] AC 241, per Lord Goff (p 274): ‘If, for example, an occupier of property has knowledge, or means of knowledge, that intruders are in the habit of trespassing upon his property and starting fires there, thereby creating a risk that fire may spread to and damage neighbouring property, a duty to take reasonable steps to prevent such damage may be held to fall upon him… What is reasonably required would, of course, depend on the particular facts of the case.’ Conclusion • The general rule is that D owes no duty of care for either their omissions or the acts of TPs. However, exceptions do exist. These exceptions predominantly arise when there is a special relationship giving rise to a duty or a dangerous situation exists. • A question to ponder: Does the improvised development of this area of law result in law that is unstructured and incoherent, or is it simply a pragmatic way of dealing with a disparate range of scenarios? • I will see you later this week in lecture when we will be talking about the DoC of public bodies....