a. Omissions
In the law of negligence, harm may be caused either by a positive act (misfeasance) or by a failure to act (omission or nonfeasance).
This distinction matters because the common law is generally much more willing to impose liability for causing harm than for failing to prevent harm.
The general rule: No liability for “pure omissions”
The common law does not impose liability for “pure omissions”. This means that, under normal circumstances, you do not owe a legal duty to intervene in others’ lives to make them better or to rescue someone from danger, even where it would be easy to do so.
For example, if you see a stranger drowning in a river and simply walk past, you are morally blameworthy, but you will not usually be legally liable in negligence for failing to save them, even if a lifebelt is nearby.
The law therefore does not impose a general duty to be a “good Samaritan”.
When an omission issue arises, the court asks two questions:
- Is this really a pure omission?
- If it is a pure omission, does one of the recognised exceptions apply?
What counts as a “pure omission”?
A pure omission occurs where a person’s failure to act can be viewed in isolation from his other activities. It consists of a failure to prevent harm caused by:
- another person,
- the plaintiff himself,
- a natural event, or
- a danger the defendant did not create.
The law distinguishes between a pure omission and an omission that arises in the course of a positive act. What appears at first sight to be a pure omission may, on closer analysis, form part of a broader course of conduct. The courts therefore focus on the whole activity of the defendant rather than the form of the specific failure. This is because the failure occurs within the positive activity of driving; had the defendant not embarked on driving at all, the damage would not have occurred.
When does a duty to act arise?
Although the general rule is no liability for pure omissions, courts will impose a duty to act (and therefore possible liability for failing to act) in these special situations:
(i) Assumption of responsibility
If a person has voluntarily undertaken responsibility for another’s safety or well-being, a duty to act can arise. This can happen through a contract, a protective relationship, taking charge of someone who cannot protect himself, or conduct showing responsibility has been undertaken.
For example, a hospital has a duty to treat a patient who arrives in an emergency because it has assumed responsibility for his care.
(ii) Special relationships and control
A duty to act can also arise where the defendant has a relationship of control, supervision, custody, or protection in relation to either the plaintiff, the person causing the danger, or the source of the danger.
1. Control over the plaintiff
Where the plaintiff is especially dependent on the defendant or the defendant has a high degree of control over the plaintiff, a duty may arise. This often applies to parental, educational, or custodial relationships.
Examples include:
- parents toward young children,
- schools toward pupils,
- employers toward employees in the workplace,
- prisons toward prisoners,
- hospitals or psychiatric institutions toward patients in their care.
2. Control over third parties
A duty may also arise where the defendant has control over a third person who poses a danger. For example, officers supervising young offenders could be liable for failing to control them when their escape and resulting damage were foreseeable.
3. Control over premises
An occupier of land or premises owes duties to lawful visitors to keep the premises reasonably safe. The occupier may be liable if he knows, or has the means of knowing, that a danger exists on the premises, whether or not it was created by a third party, and fails to take reasonable steps to prevent it. Although this may look like a failure to act, the duty is based on the defendant’s control over the premises.
Examples include:
- fixing a broken handrail;
- cleaning or warning about a slippery floor; and
- providing lighting or barriers.
4. Control over a special danger
A duty may arise where the defendant has control over something dangerous. If a person has control over such a danger, the law may require them to take reasonable precautions.
For example, a tree on private land was struck by lightning and caught fire. The owner did not put the fire out, and it spread to neighbouring land. Liability arose because the owner had control over the land and the hazard on it, and should reasonably have acted to deal with the danger.
(iii) Creating or increasing the danger
A person who creates a danger, even innocently at first, may come under a duty to take reasonable steps to prevent that danger from causing harm.
The principle is that if the defendant has brought about or materially contributed to a hazardous situation, he cannot simply do nothing once the danger becomes apparent and it is reasonably foreseeable that a third party may interfere with it and cause damage by “sparking off” the danger. Even if the ultimate harm is caused by the intervention of a third party, the defendant may still be held responsible for failing to prevent that harm. For example, a defendant’s servant left a horse-drawn van unattended and unrestrained in a busy street. A boy threw a stone at the horses, causing them to bolt. A police officer was injured while attempting to stop the horses to prevent them from hitting a woman and children. The defendant was held liable for failing to prevent the harm. By leaving the horses unattended, the servant had created a source of danger that was reasonably foreseeable to be interfered with by third parties, “sparking off” the ultimate damage.
If one of the above exceptions applies, a positive duty to act is likely to arise. Where the defendant is under a duty specifically to guard against third-party wrongdoing, the third party’s intentional act will not normally break the chain of causation. For example, a security company contractually responsible for guarding premises or repairing alarms cannot avoid liability by arguing the burglar caused the loss. The positive duty owed by the security company was specifically imposed to prevent that wrongdoing.
Omissions and public authorities
Generally, a public body is not liable for failing to exercise its statutory powers to prevent harm. For further information, please refer to “Public authorities”.
