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Torts: Negligence: Omissions and Acts of Third parties - Coggle Diagram
Torts: Negligence: Omissions and Acts of Third parties
What are we asking?
when (if ever) will X owe a duty of care to Y in respect of a negligent
failure to act?
- very specific to the relationship that we're contemplating
Then, later...
when (if ever) will X owe a duty to Y to take care that a third party (Z) will not cause harm to Y? - triangle
:!: In relation to the Michael case; when will the police owe a duty of care to a private citizen to take care that another private citizen (the ex) will not cause harm to that citizen?
:!: Duty is complicated! There is considerable overlap here!
OMISSIONS:
D only owes C a duty of care if there is a specific relationship of dependency between the two. Strangers
DO NOT
owe each other a duty of care, and so cannot be sued in negligence if they fail to act to protect that stranger from harm
There is no obligation to intervene - you are the bystander
Misfeasance v Nonfeasance distinction:
The difference between
making things worse (a positive act) and simply failing to make things better/failing to confer a benefit (an omission)
"...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..." (STEYN in :red_flag: Stovin v Wise (1996))
:red_flag: Stovin v Wise (1996)
this can be used for the proposition that we do not generally owe a duty of care in omissions liability situations (GENERAL STARTING POSITION = no liability for 'pure' omissions)
originally council found to be 30% liable, but HoL reversed this (shows how compelling this position is)
this is steyn making the distinction between misfeasance and nonfeasance
"a duty to prevent harm to others...may apply to a large and indeterminate class of people...why should one be held liable rather than the other?" (HOFFMAN in :red_flag: Stovin)
:red_flag: Gorringe v Calderdale MBC (2004)
"...a positive act which the authority had done to make the highway more dangerous could sue in negligence...the duty to take active steps to keep the highway in repair was special to the highway authority" (HOFFMANN)
Instead of a situation of misfeasance, this is nonfeasance; just a failure to confer a benefit on her as an individual, so comes under omissions liability
:red_flag: Robinson v CCWY (2018)
positive act because the police officers' actions RESULTED in C being injured, not just that they failed to protect her =
misfeasance
:red_flag: Capital & Counties PLC v Hampshire CC (1997)
"the fire brigade are not under a common law duty to answer the call for help, and are not under a duty to take care to do so" (STUART-SMITH LJ)
NO general expectation as mentioned previous
only a duty of care to the public AT LARGE, not to individuals persons
:!: the reason for this is policy based reasoning
Exceptions to the general rule:
article
"in negligence, a person A is not under a duty to take care to prevent harm occurring to person B through a source of danger not created by A unless (i)
A has assumed a responsibility to protect B from that danger
, (ii)
A has done something which prevents another person from protecting B from that danger
, (iii)
A has a special level of control over that source of danger
, or (iv)
A's status creates an obligation to protect B from that danger
"
Tofaris and Steel, 'Negligence Liability for Omissions and the Police' (2016)
Exceptions to the general rule:
D has created a source of danger
D undertook responsibility for C's welfare
D's occupation of an office or position of responsibility
HOWEVER:
these exceptions are not watertight
Creating a source of danger:
:red_flag: Haynes v Harwood (1935)
danger invites rescue :!:
creating a source of danger (not restraining the horses) displaces the general rule; you will still be found to be liable in the tort of negligence
rescue services generally do not create the source of danger, they only reply to a creation of danger (esp in this case)
2.
Undertaking responsibility for C's welfare
:red_flag: Watson v British Boxing Board (2001) (per Lord Phillips MR)
level of control
you have over a certain situations means you have then undertaken responsibility to what may happen to those involved (ie. to the boxers)
unlike having a role to protect the general public (police and fire brigade) who have no role in the risk created, here the Board
"sponsered, encouraged and controlled"
the foreseeable and inevitable injuries sought by their boxers
D's occupation of an office or position of responsibility:
Parents and Children
:red_flag: Harris v Perry (2008)
'...what positive steps would a reasonable parent take...the risks that the reasonable parent ought to foresee would be involved in the use of the castle'
teachers and pupils
Doctors and Patients
:red_flag: Cassidy v Min of Health (1951)
displacing the normal rule for liability for omissions again
if staff are negligent in giving treatment, they are just as liable for that treatment as anyone else who employs others to do his duties for him (individual doctors vs ministries of health)
"once they undertake a task, they come under a duty to use care in the doing of it"
(DENNING)
if you have employed staff and they come under your department, then you owe that responsibility as well
:red_flag: Barnett v Chelsea and Kensington (1969)
once checked in, the duty of care is created (darnley case)
doctor simply failed to confer a benefit rather than making it worse, HOWEVER, due to the special relationship, these positive obligations come into play
:red_flag: McFarlane v Tayside health Board (2000)
the court of first instance said that a healthy baby born from a normal healthy pregnancy was a natural event which could not be regarded as an injury and therefore could not form the basis for a damages claim
HL allowed the claim for the mother’s suffering but denied the claim for the costs of bringing up a normal, healthy child, since it was not “fair, just and reasonable” since it went beyond “reasonable restitution”
:warning: the judges gave no indication of what would have happen if the baby had been unhealthy or there had been contract stating that “no children” would be the result. This is confined to healthy children
limits the scope of recovery for wrongful conception
-Lord Steyn: "The law regards the birth of a child as a good thing and therefore not to be considered as compensable..Distributive justice means we have to consider the correct allocations of burdens and costs in society."
The real motivation for this case, which all the judges deny, is a desire to avoid bankrupting the health authority i.e. policy consideration
:red_flag: McFarlane
feminist critique: this case provided an assumption about gender roles in terms of wrongful birth claims where judges struggle to view 'the blessing of a healthy child' as a wrong inflicted on the mother (Steyn)
judges here saw involuntary motherhood as pure economic loss rather than a type of damage/harm that has been suffered
evidences the male perspective to predominantly female experiences
HOWEVER: there is an exception to the exception (2.):
:red_flag: Kent v Griffiths (2001)
"once a call to an ambulance service has been
accepted
, the service is dealing with a
named individual upon whom the duty becomes focused
..."
(WOOLFE)
:!: the C's detrimentally rely on this acceptance of responsibility for their welfare
displaces the normal exception in terms of the fire brigade, for example, because it creates a very tight proximate relationship/situation
in terms of delay
is the reason for delay of an ambulance here because the hospital doesn't have enough ambulances? or perhaps because of a new driver? an interference?
only deal with what is relevant to duty of care
- if it is a breach issue (i.e., newly passed driver), do not mention it here.
Undertaking responsibility: proximity pushed...
:red_flag: Sutradhar v Natural Environment Research Council (2006)
there must be proximity in the sense of a measure of control over and responsibility for the potentially dangerous situation arising
essentially, no assumption for responsibility here:
it was too far removed
Undertaking responsibility cont...
Is reliance necessary?
normally, in these special relationships of control, reliance goes hand in hand with that, but is it just sufficient to say that D assumed responsibility for C's welfare?
:red_flag: Barrett v Ministry of Defence (1995)
here, reliance wasn't necessary - liability could still be imposed
good to have reliance if you can establish it (additional element that builds the relationship that much stronger), but not FUNDAMENTAL
:red_flag: Reeves v Commissioner of Police for the Metropolis (2000)
if there is a known suicide risk, the duty is to take reasonable care to prevent him from engaging in these acts (duty of care for the police)
Nature of third party liability:
Gnereal principle :!: one man is under no duty of controlling another man to prevent his doing damage to a third. Essentially, there is no liability to D for the acts of a third party
we are not our brothers' keepers
:red_flag: Smiths v littlewoods (1987)
Exception :red_flag: Dorset Yatch v Home office (1970)
needs to be very foreseeable that if the necessary high level of control is lost, what they eventually did was highly foreseeable - near foreseeability isn't enough
Nature of third party liability from a police perspective:
:red_flag: Mitchell v Glasgow (2009)
unless there is something special in this relationship that means that they should have taken action, they won't have liability
was it fair just and reasonable that D's should also be held liable in damages for the omission to warn (complex and far reaching, opens the floodgates)
no duty of care owed
:red_flag: Michael v CC South Wales (Joanna M case)
the fundamental reason as to why there is no liability for the acts of third parties for pure omissions (as a 'general rule'), is because "it is one thing to require a person who embarks on action which may harm others to exercise one, but it is another matter to hold a person liable for failing to prevent harm caused by someone else"
:red_flag: Hedley Byrne
PRINCIPLE: it embraces the relationships in which a duty to take positive action typically arises: doctor and patients etc.
Similar to Kent case
= Kent can be used instead
Cases like X (Minors) v Bedfordshire, JD, Phelps (etc.) these were all concerning the relationship of doctors and child patients which have been involved in abuse versus the parents who are suspects in these cases; that would be a conflicting duty of care