Learning Outcomes
This article outlines the exceptions to the general principle that there is no duty of care in negligence for omissions (failures to act). It focuses on situations where a duty may arise due to control exercised over another party, an assumption of responsibility towards the claimant, or the creation or adoption of a risk by the defendant. Your understanding of these specific circumstances will assist you in identifying when a duty of care might exist despite an apparent omission, enabling application to SQE1 assessment scenarios.
SQE1 Syllabus
For SQE1, you need to understand the limited circumstances in which a positive duty to act might be imposed in the tort of negligence. This requires familiarity with the exceptions to the general rule against liability for omissions. Pay attention during revision to:
- The general principle that English law does not impose liability for pure omissions.
- Situations where a duty to act positively may arise due to a relationship of control (e.g., over the claimant or a third party).
- Circumstances giving rise to a duty based on an assumption of responsibility for the claimant's welfare.
- Instances where a duty is imposed because the defendant created or adopted a source of risk or danger.
- Applying these principles to factual scenarios to determine if a duty of care exists despite an omission.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
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Under English law, is there a general positive duty to rescue a stranger in danger?
- Yes, if the rescue is reasonably practicable.
- Yes, but only if there is a prior contractual relationship.
- No, there is generally no positive duty to act.
- No, unless the potential rescuer is a public servant like a police officer.
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Which of the following scenarios is most likely to give rise to a duty of care based on 'control'?
- A bystander witnessing a fight but not intervening.
- A prison authority failing to prevent inmates from escaping and causing damage.
- A shopkeeper failing to warn a customer about a sale ending soon.
- A homeowner failing to clear snow from the public pavement outside their house.
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A duty of care based on 'assumption of responsibility' typically requires:
- A pre-existing contractual relationship between the parties.
- The defendant possessing a specific professional skill.
- Voluntary undertaking by the defendant and reliance by the claimant.
- The claimant paying the defendant for the assistance provided.
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Which legal principle is most relevant where a defendant fails to extinguish a fire started by lightning on their land, which subsequently spreads to a neighbour's property?
- Vicarious liability.
- Assumption of responsibility.
- Creation or adoption of risk.
- Res ipsa loquitur.
Introduction
The tort of negligence generally imposes liability for positive wrongful acts that cause harm. A fundamental principle is that the common law does not typically impose a positive duty on individuals to act to prevent harm or confer benefits on others. This means there is usually no liability for pure omissions – failures to act. If you see someone drowning and choose not to help, the law generally imposes no liability for that failure.
However, this general principle is subject to important exceptions. A duty of care requiring positive action may arise in specific circumstances where the relationship between the defendant and the claimant, or the defendant's involvement with the source of danger, justifies imposing such a duty. This article examines the key exceptions where a duty to act may be found: control, assumption of responsibility, and the creation or adoption of risk.
Exceptions to the General Rule on Omissions
While the default position is no liability for failing to act, the courts have recognised situations where fairness, justice, and the nature of the relationship or circumstances demand the imposition of a positive duty.
Control
A duty to act positively may arise where the defendant exercises a sufficient degree of control over the claimant or a third party whose actions pose a risk. This control must go beyond mere ability to influence and often stems from a specific relationship.
Key Term: Control In the context of omissions, control refers to a situation where one party has a sufficient level of authority or charge over another person or a dangerous situation, giving rise to a duty to act positively to prevent foreseeable harm.
Examples where control can impose a duty include:
- Parent/Guardian and Child: Parents generally owe a duty to take reasonable steps to control their young children to prevent them causing foreseeable harm to others (Carmarthenshire County Council v Lewis [1955] AC 549 (HL)).
- Employer and Employee: While primarily covered by employer's liability and vicarious liability, an employer's control over the workplace and employees can ground a duty related to preventing harm.
- Institutions and Those in Custody: Authorities managing prisons or secure units may owe a duty regarding the actions of those under their control. The leading example is Home Office v Dorset Yacht Co Ltd [1970] AC 1004 (HL), where the Home Office was held liable for damage caused by escaped young offenders due to the officers' failure to supervise (omission). The duty arose from the control exercised over the offenders and the foreseeable risk of damage if they escaped to the nearby harbour.
Worked Example 1.1
A school supervises children during a playground break. One child, known for aggressive behaviour, pushes another child, causing injury. The injured child's parents wish to sue the school authority.
Would the school authority likely owe a duty of care?
Answer: Yes, likely. The school authority exercises control over the children while they are under its supervision. If the school knew or ought to have known of the aggressive child's tendencies and the risk posed, it would likely owe a duty to take reasonable steps (positive action) to prevent such foreseeable harm occurring during supervised activities. Failure to adequately supervise could constitute a breach of this duty.
Assumption of Responsibility
A duty to act can arise where a defendant has voluntarily assumed responsibility for the claimant's safety or well-being, leading the claimant to rely on that assumption. This does not necessarily require a contract; the assumption can be express or implied by conduct.
Key Term: Assumption of Responsibility An exception to the rule on omissions where a defendant, through words or conduct, takes on a duty to exercise reasonable care for the claimant's welfare, and the claimant relies on this undertaking.
Key elements often include:
- A voluntary undertaking by the defendant (express or implied).
- Reliance by the claimant on that undertaking.
- The defendant knew or ought to have known the claimant was relying on them.
Classic examples arise in the context of negligent misstatement (Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 (HL)), but the principle extends beyond advice. For instance, in Barrett v Ministry of Defence [1995] 1 WLR 1217 (CA), naval personnel took a very drunk colleague back to his bunk but failed to supervise him properly. He subsequently choked on his own vomit and died. While the MoD was not liable for allowing him to get drunk, liability arose from the point responsibility was assumed for his care by taking him to his bunk, which was then performed inadequately. The duty arose from the positive act of intervention coupled with the assumption of responsibility for his safety.
Worked Example 1.2
Sarah volunteers to help her elderly neighbour, David, with his shopping during bad weather. She tells him she will call every Tuesday to take his order. One Tuesday, she forgets to call. David, relying on her, does not make other arrangements and runs out of essential supplies.
Does Sarah owe David a duty of care?
Answer: Possibly. Sarah voluntarily assumed responsibility for David's shopping on Tuesdays, and David appears to have relied on this. Her failure to call was an omission. A court would consider whether her undertaking was sufficiently clear and whether David's reliance was reasonable. If so, her omission (forgetting to call) could constitute a breach of an assumed duty.
Creation or Adoption of Risk
A duty to act may be imposed where the defendant created a source of danger or adopted a risk created by a third party or natural event. If a person creates a danger, they are generally under a duty to take reasonable steps to prevent that danger causing harm.
Key Term: Creation or Adoption of Risk A situation where a duty to act arises because the defendant either brought about a source of danger or knew of a danger created by a third party/nature on their property and failed to take reasonable steps to mitigate it.
- Creation of Danger: If you start a fire, you have a duty to take reasonable steps to prevent it from spreading and causing damage.
- Adoption of Risk: This applies where a danger is created on the defendant's land by a third party (e.g., a trespasser) or a natural event (e.g., lightning strike causing fire), and the defendant, knowing of the danger, fails to take reasonable steps to abate it.
The principle regarding adoption of risk was established in Goldman v Hargrave [1967] 1 AC 645 (PC). A tree on the defendant's land was struck by lightning and caught fire. The defendant had the tree felled but took insufficient steps to extinguish the fire, which later revived and spread to the claimant's land. The defendant was held liable, not for starting the fire, but for failing to take reasonable steps to deal with a known hazard on his land that arose without his fault. The court considered the defendant's resources when assessing what steps were 'reasonable'.
Worked Example 1.3
A local council owns a park containing a pond. Over time, rubbish accumulates in one corner, creating a hidden hazard beneath the water surface. The council is aware of the rubbish but takes no action to clear it. A child paddling in the pond cuts their foot severely on submerged broken glass.
Does the council owe a duty of care?
Answer: Likely yes. Although the council did not create the hazard (it was likely caused by third parties littering), it knew or ought to have known of the dangerous accumulation of rubbish on its land. By failing to take reasonable steps to remove this known hazard, the council could be seen as having 'adopted' the risk, giving rise to a duty to lawful visitors (and potentially trespassers under the Occupiers' Liability Act 1984, depending on circumstances) regarding the state of the premises.
Exam Warning
Remember the default rule: generally, no liability for omissions. Always start by considering if the situation falls into one of these established exceptions. Do not assume a duty exists simply because the defendant could have acted. Focus on whether there was control, an assumption of responsibility, or creation/adoption of risk.
Key Point Checklist
This article has covered the following key knowledge points:
- The general common law principle is that there is no liability in negligence for a pure omission (a failure to act).
- An exception exists where the defendant exercises sufficient control over the claimant or a third party who causes harm (Home Office v Dorset Yacht).
- A duty to act may arise where the defendant voluntarily assumes responsibility for the claimant's safety or welfare, and the claimant relies on this (Barrett v MoD).
- A duty to take positive steps can be imposed if the defendant created a source of danger.
- A duty can also arise if the defendant knows of a danger on their land created by a third party or nature and fails to take reasonable steps to abate it (Goldman v Hargrave).
- Whether a duty is imposed in cases of omission depends heavily on the specific facts and the relationship between the parties.
Key Terms and Concepts
- Control
- Assumption of Responsibility
- Creation or Adoption of Risk
