Useful websites:

Duty of Care: Omissions (willmalcomson.com)

Omissions rule
Strict rule- No duty of care for ‘pure’ or ‘mere’ omission

Why is there a distinction between acts and omissions?

 Donoghue neighbour principle- needs to be a special relationship between the parties

before there is an imposition of a private common law duty of care.
 Stovin v Wise: Lord Hoffman gives 3 justifications at [943]:
i. ‘why burden me’ [autonomy argument]
ii. ‘why pick on me’
iii. tort of negligence acts as a deterrent against behaviour with social costs, whereas
acting for the benefit of someone else does not confer same positive externality
 Barret-Beldam LJ at [1224]: “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 is an increment too far.” [Tort law as a system of personal responsibility.
Erosion of individual responsibility- may encourage reckless behaviour if one knows others
are responsible for your actions as well]
 See also Michael and Robinson for further justifications.
 Honoré, Are Omissions Less Culpable? in Cane and Stapleton (eds), Essays for Patrick Atiyah
(1991) 51-Lesser culpability for omissions than positive actions. Threaten not security so
much as moral improvement: ‘The great value placed on security explains why making
someone's position worse is for good reason seen as worse than not making it better. The
latter threatens not security so much as the expectation of improvement, which is a different
but secondary value ‘

Are there any flaws with the distinction:

FLAWS IN PRINCIPLE:

 UNCLARITY: Is the basis between acts and omissions semantic (so based on its literal
meaning) or based on interpretation (so what the court deems to be an act or
omission)?
 Semantic: defined as ‘failure to confer a benefit’ in N v Poole
 Interpretation: According to Lord Nicholls in dissent in Stovin it depends on how
broadly one looks when deciding whether the omission is a ‘pure’ omission or is
part of a larger course of activity set in motion by the defendant. Driving
recklessly and then not putting the brakes on when a car comes your way is an
example of an omission which is merely part of a larger course of activity set in
motion by defendant.

FLAWS IN POLICY:

 focus of tort law ‘should be on interdependence and collective responsibility rather

than on individuality, and on safety and help for the injured rather than on
‘reasonableness’ and economic efficiency. Bender, L, ‘A Lawyer’s Primer on Feminist
Theory and Tort’ (1988) 38 Journal of Legal Education 3, 22
  See S Tofaris & S Steel, ‘Negligence liability for omissions and the police’ [2016] 75 CLJ
for further reasoning

Michael
Distinction made between Michael and Hill:

 In Michael there was an identifiable victim. In Hill the police had a demographic group of
victims, however, they had no one identifiable victim.

Judgement was split 5:2.

Lord Thoulson for majority:

 No exception was made in this case.

 Worry of imposition of liability causing defensive policing [police putting money and time
into defending their actions rather than enforcing law and apprehending criminals]

Lord Kerr for minority:

 Interveners liability principle-

Justification of decision:

 Lord Steyn in Brooks v Commissioner of Police of the Metropolis [2005] UKHL 24, [2005] 1
WLR 1495 at [30] “By placing general duties of care on the police to victims and witnesses
the police's ability to perform their public functions in the interests of the community,
fearlessly and with despatch, would be impeded.”
 Lord Nicholls at [5] in Brooks v Commissioner of Police of the Metropolis [2005] UKHL 24,
[2005] 1 WLR 1495, imposing a duty of care “would cut across the freedom of action the
police ought to have when investigating serious crime”
 Michael at [58]: Would distract the police from their primary function of suppressing crime
and apprehending criminals.

Criticism of majority’s decision:

 ‘need to combat the evil of domestic violence should influence the development of the
common law in relation to potential victims of violence generally.’ {[20] in Michael}
This decision indicates that the police have a blanket immunity in such cases. In domestic
abuse cases women struggle coming forward to police and reporting it. This judgement may
deter women from contacting the police, as they know the police are unlikely to help them.
 The law has placed restrictions on one’s ability to protect oneself. There should be a
correlative duty imposed on the police to protect you. [Argument made in S Tofaris & S
Steel, ‘Negligence liability for omissions and the police’ [2016] 75 CLJ 128]

Exceptions to omissions rule

3 main exceptions:

1. D created source of danger [Capital and Countries-contrast with Sumner v Colborne, where
there was no creation of source of danger]
2. Assumption of responsibility [
3. Special relationship between parties. [Dorset Yacht]
Assumption of responsibility
Michael-This seems on the face of it to be an assumption of responsibility.

 S Tofaris & S Steel, ‘Negligence liability for omissions and the police’ [2016] 75 CLJ 128 : (1)
person is at a special risk of personal harm, namely a greater risk than the general public. (2)
police is aware or should have reasonably been aware that person is at a special risk of
personal harm. (3) police by virtue of their special status, have the power to protect the class
of persons to which person belongs, namely persons at a special risk of personal harm (4)
person is dependent upon the local authority as regards to protection against the risk, on
the basis of the legal and civic duties imposed on him to refrain from taking measures
beyond reasonable self-protection
 However, majority held there was no duty of care.

N v Poole- This also seems on the face of it to be an example of assumption of responsibility,

however in the judgement the majority seem to have twisted the meaning of assumption of
responsibility.

 In this case the local authority placed the family in the housing, after having knowledge of
the anti-social behaviour of the neighbours.
 They were involved in investigating and monitoring the anti social behaviour of the
neighbours.
 Neither of these factors constituted an assumption of responsibility.

MOST RECENT CASE LAW: HXA V SURREY COUNTY COUNCIL

This is only a CA so is not a binding precedent. However, it builds on the finding in N v Poole.

In this case it was held that a statutory duty alone was not enough to impose a duty of care.
‘Something more’ was needed. Something more was defined as:

1. ‘either something intrinsic to the nature of the statutory function itself which gives rise to an
obligation on the defendant to act carefully in its exercising that function, or
2. something about the manner in which the defendant has conducted itself towards the
claimants which gives rise to a duty of care.’

This laid out a high hurdle for a finding of assumption of responsibility. For example, social workers
have enormous discretion and in the arena of social work there is unlikely to be a finding of
‘something more’ and an imposition of duty of care, as there can easily be an error of judgement
made by social workers.

Highlighted that whether there is a finding of something more is context specific: ‘As Lord Reed
made clear, and as Ms Gumbel [for the claimant] submits, this question is one which is “fact
sensitive”.’

HOWEVER, THIS SEEMS TO HAVE WIDENED THE SCOPE FOR ASSUMPTION OF RESPONSIBILITY.

 E.g., Could now argue that the resolve to do something constitutes ‘something more’.