Limited Circumstances in Which a Duty of Care Might Be Imposed on a Defendant for an Omission - Essay Example

?Introduction The general rule for omissions in English law is that they are treated differently than are torts regarding positive conduct. The reason why is that, in general, there is not a duty to require a person who is “doing nothing” to take positive steps to prevent another from suffering harm (Stovin v. Wise [1996] 3 WLR 389). So, in general, if there is a child drowning in a swimming pool, and there are a crowd of people standing around and watching this child drown, none of these individuals are liable for negligence if the child does drown. Thus, generally, a negligence claim may be had only through commission – that is, a positive act. The main reason why courts are reluctant to impose duties to act may be seen in the arguments made in the case of Stovin v. Wise. The court in Stovin found that requiring somebody to act is an invasion of individual freedom. Moreover, the court also found that the duty prevent harm or render assistance to others is one which is ascribed to a wide range of people, so to single out a person for failing to act is unjust, because one person should not be singled out to be held liable if there are a number of people who have the same duty. Moreover, imposing a duty on third parties for omissions is not generally done because of market distortions which might result. This is assuming that an activity should bear its own costs, and if some of these costs are imposed on others, then the activity might appear to be cheaper than it really is. Requiring compensation for negligent conduct reduces this effect. However, there is not this justification to impose liability on a person who is not volunteering to spend resources on somebody else, therefore that person may not be rewarded. Just as the person is not rewarded, that person also cannot be punished, unless there is a special reason to do so (Stovin v. Wise). That said, there are exceptions to this general rule, which is the subject of this paper, which will examine these exceptions. Moreover, the cases where omissions were not held to be actionable may further illustrate why courts are hesitant to impose liability for omissions. Discussion There are exceptions to the general rule that omissions are not enough to give rise to negligence actions. For instance, if someone undertakes a duty to assume responsibility for somebody else, then the duty of care does arise, and an omission may give rise to a negligence claim. This was established by the case of Barrett v. MOD [1995] 1 WLR 1217. In the Barrett case, the claimant’s husband died after a night of heavy drinking. At some point, a Petty Officer Wells was instructed to take the claimant’s husband back to the base and look after him. Although the Petty Officer did look after the claimant’s husband, the claimant’s husband was found dead at 2:30 AM. The Barrett court found that the claimant’s husband was responsible only for himself, but when the senior officer assumed responsibility for him, then the duty of care arose, and the senior officer was then responsible to go ahead and give appropriate supervision over the claimant’s husband. Therefore, once he took responsibility, if he did not act, in that he did not go and check on the man, then this omission would give rise to liability. Another example is the well-known case of Stansbie v. Troman [1948] 2 K.B. 48. In this case, a decorator was working on a house and went to buy wallpaper, leaving the door unlocked. Thieves came in and entered while he was away. The decorator was found to be negligent because he had a duty to take reasonable care to guard against thieves entering the dwelling. Therefore, in the Stansbie case, although the ultimate cause of the theft was the positive act of the thief, it was the omission – the failure to lock the door – which made the decorator liable, because he was under the duty of care to make sure that the house was secure before he left. In this case, it was because there was a special relationship between the decorator and the claimant, because there was a contract between them, and this was what gave rise to the duty to act, which, in this case, would be a duty to lock the door behind him. There are other cases when one voluntarily undertakes a duty to act and a duty to care for others, and these cases have also given rise to negligence claims. For instance, in Reeves v. Commission of Police of the Metropolis [1999] (HL), there was a duty to prevent a prisoner from self-harm, and any omission which causes self-harm would be actionable. Specifically, this case involved a prisoner who was taken into custody was a known suicide risk. Officers left the hatch of the cell door open, and the prisoner tied his shirt to the hatch and strangled himself. This was considered to be a rare situation where there was a duty to prevent a person from self-harm, because the man was in custody, the police had assumed responsibility for him, and he was a known suicide risk Another case which is similar, in that a person voluntarily undertakes care of another, therefore is liable for any acts the other person might do if the carer fails to act are cases where one is caring for a child, such as a teacher who is caring for children. Such was the case with Carmarthenshire CC v. Lewis [1955] HL. In this case, a teacher left a 4 year old child alone for ten minutes while the teacher went about and did other things. During this period of time, the child left the classroom, walked onto a busy road and caused a lorry driver to swerve and collide with a telegraph pole, killing the lorry driver. In this case, the educator was guilty of an omission, which was leaving the child alone, as opposed to a positive act, yet the educator was still held liable for the lorry driver because the educator had voluntarily taken charge of the child, therefore undertook a duty to take reasonable care to prevent the child from causing harm to others. There are two other cases in which an individual is held to be responsible for others, both of them involving rugby cases. One is Smoldon v. Whitworth [1997] CA. In this case, the claimant was a 17 year old boy who sustained a broken neck after a scrum collapsed. In this case, the referee did not apply the proper rules to protect players from injury, and the referee voluntarily undertook this duty to do so. A similar case is Vowles v. Evans and Welsh Rugby Union Ltd [2003] CA. In this case, there was also a claimant who was injured in a collapsed scrum. The court held that it was foreseeable that if the referee did not impose the proper rules that there would be an injury, and that the referees omission was capable of causing physical injury to others. Home Office v. Dorset Yacht Co. [1970] UKHL 2 is another leading English case in which negligence was found in an omission. In this case, there were a group of young Borstal inmates who were taken for a weekend’s leave and training. During the night, five of these boys escaped, and damaged several yachts. The question was whether the Home Office, who had undertaken care for these boys, was liable for negligence because they owe a duty of care. Strictly speaking, as in the other cases cite above, the wrong that was committed was the wrong of the boys who did the affirmative act. Therefore, any kind of liability assessed to the Home Office would be based upon omission, which is their failure to act. The Home Office court found that there was a duty between the defendant and the boys that escaped. Beyond that, there was also a duty for reasonably foreseeable harm to those who are within proximity of the boys. Therefore, any individual who owned property which was in a reasonable vicinity of the where the boys were staying could entertain a case for negligence, because they would have claim to proximity to the boys. Therefore, in this case, the court established not only that there must be an instance where one person agrees to undertake care of another for there to be an action in negligence, based on omission, but that the harm must be reasonably foreseeable and that there must be proximity between the claimant, the tortfeasor, and the person who is guilty of the omission. Beyond this general category, which is there is duty imposed, even in the event of omission, if there was an agreement from one party to undertake care of another party, there is another category in which omissions may be actionable. One of these cases is if there is a self-imposed duty which is usually performed, and, if this self-imposed duty is not performed, then it is implicit that there would be an inference about why the act was not performed. An example of this is Mercer v. South Eastern and Chatham Railway Companies’ Managing Committee (1922) KBD. In this case, the Defendant is a railway company who locked a small wicker gate when trains were passing, and this gate was unlocked only when it was safe to cross. Claimant knew of this practice, and knew that if the gate was unlocked that it was safe to cross. Therefore, this was the inference that Claimant drew when he saw that the gate was unlocked – that it was safe to cross. One day, however, and employee of the defendant railroad negligently failed to lock the small wicker gate. Claimant, erroneously thinking that it was safe to cross, proceeded to cross and was injured as a result. In this case, the omission – leaving the gate unlocked – gave way to an inference, which was that it was safe to cross, and gave an invitation to all that it was safe to cross. Therefore, since this particular omission gave rise to an inference, the Defendant railroad was held liable for Claimant’s injuries. Another limited exception to the rule that omissions are not actionable, because there is not a duty of care established, is a duty which might arise when one is voluntarily undertaking a rescue situation, and, once that person voluntarily chooses to undertake this rescue situation, the person is liable if an omission during the course of the already undertaken rescue occurs. Such is the case of Kent v. Griffiths [2001] CA. In this case, Claimant was an asthmatic who was suffering an acute asthma attack, and she called 999. After calling 999, an ambulance was dispatched and the ambulance took 30 minutes to arrive. In this case, the court stated that after the ambulance was dispatched that it assumed a duty of care, and arriving 30 minutes after the call was breaching the duty of care. It was after the dispatch accepted the call that there was proximity between the claimant and the defendant, because it became foreseeable that she would suffer harm if the ambulance did not arrive on time, and, also, a duty of care is established at this point. Another case where a negligence action may come from an omission is one in which there is a creation or failure to remove a danger which is then use by third parties. Such is the case of Goldman v. Hargrave PC 1966 is one such case. In this case, a fire started on defendants’ land, and the defendant did not adequately put this fire out, which caused the fire to spread. In this case, there was a failure to remove the danger, which was the fire, therefore the omission of not putting out the fire adequately was actionable. These cases may be contrasted with other, similar cases, where there is an omission and there was not held to be liability. In examining why the court ruled the way that they did in these other cases, it may help to flesh out why it is that courts are hesitant to impose liability in the case of omissions. First, omissions may not be actionable in many cases because the defendant does not have control over the third party who caused the damage. This is in contrast to the Home Office case above, as well as the Carmarthenshire case, in which liability is imposed for the acts of a third party. In the case of Topp v. London Country Bus (Southwest) Ltd. [1993] CA, the defendants did not have control over a third party who caused damage, therefore they were not held liable. In this case, the defendants owned a mini-bus, which they left with the keys still in the ignition, and the bus was stolen. During the course of this theft, a woman cyclist was killed. However, since the defendants did not have control over the thieves, the omission on the part of the bus company – failing to secure the bus – was not actionable. A similar case, with a similar outcome, is , is Yuen Kun Yeu v. Attorney General of Hong Kong (PC) [1988]. In the Yuen case, the defendant was a commissioner who licensed deposit takers in Hong Kong. When C deposited money with a licensed deposit taker, who stole this money, C sued D, stating that D should have known that this particular deposit taker was a fraudster. However, as in the case of Topp, it was held that there was not proximity between C and D, because D did not have control over the fraudster. Smith v. Littlewood Organisation Ltd [1987] HL is another case in this vein. In this case, the Defendants owned a cinema which was disused, so that vandals regularly entered the place. The vandals caused a fire which caused damage to neighboring property. However, because the owners of the cinema, the defendants in this case, did not have control over the vandals, nor did they even know that vandals were coming into the property, there was neither proximity nor was the damage reasonably foreseeable by the owners. These cases illustrate the general concept that there must be some kind of proximity for omissions to be actionable, in that either there must be control of the defendants over the third party, which means that any party injured by the third party would be the fault of the defendants, or there must be a voluntary undertaking, such as the omission during the cause of the voluntary undertaking would foreseeably cause harm. Foreseeable harm and proximity are the two ingredients which give rise to negligence actions which concern omissions, and, absence both of these being present, courts are reluctant to impose a duty for omissions. The proximity issue is also shown by the case of Hill v. Chief Constable for West Yorkshire (1988), which is a case in which the police failed to catch the “Yorkshire Ripper,” and the mother of the 13th victim sued because of inefficiencies and errors in the police handling of the investigation. The Hill court found that there was not proximity between the defendants and the victim, because the victim was not in any greater risk than the general public. This implies that, had the victim been at greater risk than the general public, there might have been liability for this omission. Conclusion Courts generally are hesitant to hold individuals liable for failures to act, preferring to base negligence actions on positive acts which might harm others. The reason for this is that it limits the freedom of people to tell them that they must act, and, also, it is unjust to single out one person for a failure to act, when it can be said that multiple people have the same duty. That said, there are special cases, which usually involve control over third parties who do the positive acts which give rise to negligence. The cases above illustrate this point. Also, if one voluntarily undertakes a rescue, then there is a duty to carry out this rescue without negligence, and, if somebody puts into the public a dangerous situation, then there is a duty to contain this dangerous situation. The only the other narrow exception is if an individual or a company habitually does something, so that the failure to do this thing gives rise to a permissible inference. Other than these narrow exceptions, there is not a duty that arises from omissions. Bibliography Barrett v. MOD [1995] 1 WLR 1217 Carmarthenshire CC v. Lewis [1955] HL Goldman v. Hargrave PC 1966 Hill v. Chief Constable for West Yorkshire (1988) Home Office v. Dorset Yacht Co. [1970] UKHL 2 Kent v. Griffiths [2001] CA Mercer v. South Eastern and Chatham Railway Companies’ Managing Committee (1922) KBD Reeves v. Commission of Police of the Metropolis [1999] (HL) Smith v. Littlewood Organisation Ltd [1987] HL Smoldon v. Whitworth [1997] CA Stansbie v. Troman [1948] 2 K.B. 48 Stovin v. Wise [1996] 3 WLR 389 Topp v. London Country Bus (Southwest) Ltd. [1993] CA Vowles v. Evans and Welsh Rugby Union Ltd [2003] CA Yuen Kun Yeu v. Attorney General of Hong Kong (PC) [1988] Read More