Law of Tort: Duty of Care (Omissions)

Law of Tort: Omissions

In simple terms an Omission is failing to take action when there is a responsibility that action should be taken. At Common law there is no liability imposed on pure Omissions, which means that you cannot be held legally liable if you encounter somebody drowning or involved in a car crash, and you do not assist them. In these circumstances, if you choose to come to somebodies aid they may well have a negligence claim against you. If a motorcyclist crashes and you decide to aid them by removing their helmet, which actually causes them more harm – you may be liable.

The general advice I would give to anybody is to not help somebody if they are in danger. In realistic terms, you may have a strong sense of morale obligation to help somebody, but legally you have no responsibility to help. At the end of the day, you could actually be held responsible for trying to help.

Omissions – There is no general duty to act for the benefit of others e.g. if you see someone with headphones in and do nothing as they cross the road, you cannot be held liable for this.

Different from the requirement to take care not to cause injury to others; if you tap someone on the shoulder and they then fall in the road and die, you will be liable for them.

These situations apply to STRANGERS … There are a different set of rules where there is a SPECIAL RELATIONSHIP or POWER and CONTROL.

There are some situations where there is a duty to take action. Action must be taken where there exists a special relationship or a relationship where one person has the power and can control the other. Some common examples include:

  • Prison Officers and Prisoners – (Home Office v Dorset Yacht Co. Ltd [1970] AC 1004 (HL)) In these circumstances prison officers have power and control over prisoners. The prisoners also have no choice to be where they are, so they have very little control over anything that happens.
  • Employer and Employee – (Hudson v Ridge Manufacturing Co. [1957] 2 QB 348) Employees have very little bargaining power and no choice as to where they work and what they must do.
  • Parent and Child – (Carmarthenshire County Council v Lewis [1955] AC 549) A parent has an obligation to protect and care for their child. They cannot rely on an Omission to protect them from being negligent in providing care for their children.

There is a limited Duty of Care imposed on the Emergency Services.

Fire Brigade –

Capital Counties V HCC [1997] 2 ALL ER 865 et al – Three cases heard together. They turned the sprinkler system off, and then decided to turn it back on causing lots of damage. The court said that there was a duty of care owed because they positively acted on it, they acted which caused damage. If they had left the sprinkler system on and not turned it off and there was damage, they wouldn’t have been liable for the damage.

The Fire Brigade had three potential duties, which were: To answer the emergency call, to fight the Fire and to not make matters worse.

Police Cases –

Hill v Chief Constable West Yorkshire [1988] 2 All ER 238 – she claimed in negligence against the police that they failed to apprehend the murder of the people, she said if the police court him faster her son would have been alive.

  • Mother of victim of Yorkshire Ripper
  • No duty of care was owed by the police in the detection of crime
  • No proximate relationship, and one of a large class of people at risk. The courts said that her child was one of many victims, then the police couldn’t have had her child in specific contemplation.

Swinney v Chief Constable Northumberland [1977] QB 464 – The police were deemed to have owed a duty of care. The claimant was an informer who gave police information on a criminal who they were worried that if they found out they leaked information, then their life would be endangered. All the informer’s information was left in a police car that was unlocked. The information then made it back to the person who it was about and the informer was then successful and the courts said that there was a duty.

  • Informer case
  • A duty is owed in relation to the handling of confidential information

 Michael v Chief Constable of South Wales [2015] UKSC 2 – Assaulted by partner. Operator misinformed the police that there was a threat to kill her. Operator said that she said hurt not kill. Took case to court for negligence against the operator. Still awaiting an investigation to see if article two argument will be effective.

  • Did they owe a duty of care? – Whether the police owed a reasonable duty of care for the person involved.
  • Did they assume responsibility?
  • Should they have prevented her death?
  • Also claimed under art. 2 HRA 1998 for breach of the defendants’ duties as public authorities to protect Ms Michael’s right to life.

 Ambulance Cases

Kent v Griffiths [2001] Q.B. 36 – told ambulance was on the way. Had the doctor known the real eta, she would have told the husband to drive her wife to the hospital.

  • Doctor called for an ambulance and was assured that it was on its way.
  • Arrived after its target time with no explanation for the delay
  • Claimant injury may have been avoided if ambulance was on time.
  • Distinction from Fire Brigade and Police in that their duty was owed to the public at large

 

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