Negligence – Duty of Care (Omissions and Third party)
Recall our ingredients for the tort of negligence:
1. the D must owe the C a legal duty of care.
2. the D must have breached that particular duty by falling below the
expected standard of care;
3. the D's breach is both a factual ("but for") and legal cause of the C's
injury
...to this we need to ensure that the C suffers actionable damage (ie.
damage capable of grounding a claim in negligence). The damage
component is best considered at the beginning of your negligence
assessment; thus, your outline (in brief!) should look like the following:
Actionable Damage - personal injury, property damage, psych harm, etc.
Duty of Care
1.
1. Omissions (misfeasance and nonfeasance);
2. 3rd Party Liability
Breach
Causation
‘Exceptional Duty of Care Scenarios’
1. Liability for Omissions
2. Liability for the Acts of Third Parties
3. Public Authority Liability
What are we asking?
When (if ever) will X owe a duty of care to Y in respect of a negligent
failure to act?
…and later
When (if ever) will X owe a duty to Y to take care that a third party (Z) not
cause harm to Y?
** Remember: duty is complicated – there is considerable overlap
here! **
Omissions Liability
Misfeasance vs
Nonfeasance Distinction
, Difference between making things worse (a positive act) and simply failing
to make things better (an omission)
‘The distinction is based on a recognition that it is one matter to require a
person to take care if he embarks on a course of conduct which may harm
others. He must take care not to create a risk of danger. 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 Steyn in Stovin v Wise (1996)
‘A duty to prevent harm to others or to render assistance to a person in
danger or distress may apply to a large and indeterminate class of people
who happen to be able to do something. Why should one be held liable
rather than the other?’
Lord Hoffmann in Stovin v Wise
An individual who has suffered damage because of some positive act
which the authority had done to make the highway more dangerous could
sue in negligence…in the same way he could sue anyone else. The
highway authority had no exemption from ordinary liability in tort. But the
duty to take active steps to keep the highway in repair was special to the
highway authority and was not a private law duty owed to any individual.
Thus it was said that highway authorities were liable in tort for
misfeasance but not for nonfeasance.
Lord Hoffmann
Gorringe v Calderdale MBC (2004)
‘In the present case, the ground of action is liability for damage caused by
carelessness on the part of the police officers in circumstances in which it
was reasonably foreseeable that their carelessness would result in Mrs
Robinson’s being injured. Her complaint is not that the police officers
failed to protect her against the risk of being injured, but that their actions
resulted in her being injured. In short, this case is concerned with a
positive act, not an omission.’
Lord Reed
Robinson v Chief Constable of West Yorkshire Police (2018)
Omissions Liability – a failure to act
General principle
- No liability for ‘pure’ omissions
Applications of no duty re: omissions:
Stovin v Wise [1996] AC 923 (local authorities)
Alexandrou v Oxford [1993] 4 All ER 328 (police) …
‘Is there a common law duty on the fire brigade to answer calls to fires or
take reasonable care to do so?’
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