Negligence - Failure to prevent third-party harm

Learning Outcomes

This article outlines the general principles relating to liability in negligence for failing to act (omissions) and for harm caused by the actions of third parties. For the SQE1 assessments, you will need to understand the general rule that no duty of care is owed for omissions or to prevent third-party harm, and importantly, the exceptions to this rule. This understanding will enable you to identify scenarios where a duty might arise and apply the relevant legal principles to SQE1-style single best answer MCQs.

SQE1 Syllabus

For SQE1, you are required to understand the circumstances in which a duty of care may or may not arise in negligence, particularly in relation to omissions and the acts of third parties. You should be able to apply the principles governing these exceptions to factual scenarios.

As you work through this article, remember to pay particular attention in your revision to:

• the general rule that there is no duty of care for pure omissions or to prevent harm caused by third parties
• the specific exceptions where such a duty may arise, including special relationships, assumption of responsibility, control over third parties, and creation of a danger
• identifying the key factors the courts consider when determining if an exception applies
• applying these principles to advise on liability in practical scenarios.

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.

1. Generally, the law of negligence imposes:
   1. A duty to rescue anyone in danger.
   2. No liability for failing to act (pure omissions).
   3. A duty to prevent third parties from causing any harm.
   4. Liability for all foreseeable harm caused by inaction.
2. In which of the following scenarios might a duty of care to prevent harm by a third party arise?
   1. Witnessing a stranger being attacked in the street.
   2. A prison service supervising offenders known to be dangerous.
   3. Hearing about a potential crime from a news report.
   4. Simply owning property adjacent to where a third party causes harm.
3. The case of Home Office v Dorset Yacht Co Ltd [1970] AC 1004 primarily established an exception to the general rule based on:
   1. Assumption of responsibility by the defendant for the claimant.
   2. A special relationship between the claimant and the third party.
   3. The defendant having control over the third party who caused the harm.
   4. The defendant creating a source of danger negligently.
4. A 'special relationship' sufficient to create a duty to act positively might exist between:
   1. Two strangers meeting briefly on a train.
   2. A shopkeeper and a customer browsing items.
   3. An employer and their employee concerning workplace safety.
   4. Two drivers involved in a minor collision with no injuries.

Introduction

In the law of negligence, a fundamental principle is that liability typically arises from positive acts rather than failures to act. This means there is generally no legal duty imposed on individuals to intervene to prevent harm or to rescue others from danger, often referred to as the 'no duty for omissions' rule. Similarly, the law does not usually require a person to prevent a third party from causing harm to another. These rules are rooted in the concept of individual autonomy and the reluctance of the law to compel positive action. However, these general principles are subject to important exceptions, where the specific circumstances or relationship between the parties justify imposing a duty of care. Understanding these exceptions is essential for determining liability in negligence.

The General Rule: No Duty for Omissions or Third-Party Acts

The starting point in negligence is that the common law does not impose liability for pure omissions. A failure to act, even where such action could prevent harm, does not typically give rise to a duty of care. This principle was affirmed in cases like Smith v Littlewoods Organisation Ltd [1987] AC 241, where it was emphasised that the law is hesitant to compel individuals to act for the benefit of others, distinguishing between making things worse (misfeasance) and failing to make things better (non-feasance).

Key Term: Omission A failure to act. In negligence, liability is generally not imposed for a 'pure' omission where the defendant has not created the risk of harm.

Similarly, there is no general duty to prevent a third party from causing damage. A defendant is not usually liable for harm inflicted upon the claimant by someone else, even if the defendant could have foreseen and prevented that harm.

Key Term: Third Party A person separate from the claimant (the person suffering harm) and the defendant (the person whose liability is in question).

The rationale behind these rules includes protecting individual liberty, avoiding the imposition of indeterminate liability on potentially large groups of people, and the difficulty in defining who should be under a duty to act in any given situation.

Exceptions to the General Rule

Despite the general reluctance to impose liability for omissions or the acts of third parties, courts have recognised exceptions where the relationship between the parties or the specific circumstances create a compelling reason to impose a duty. These exceptions often overlap but can be broadly categorised.

Special Relationship between Defendant and Claimant

A duty to act positively may arise where there is a special relationship between the defendant and the claimant. This relationship often involves an element of dependency, reliance, or an assumption of responsibility by the defendant for the claimant's welfare.

Key Term: Special Relationship A pre-existing relationship between the claimant and defendant (eg, employer/employee, parent/child, doctor/patient) that justifies imposing a positive duty to act for the claimant's safety or well-being.

Examples include the duty owed by an employer to an employee to provide a safe working environment, or a parent to their child. Another basis for this exception is where the defendant has voluntarily assumed responsibility for the claimant's safety.

Key Term: Assumption of Responsibility Where the defendant, through words or conduct, takes on a responsibility for the claimant's safety or well-being, leading the claimant to rely on that assumption.

Worked Example 1.1

Ahmed agrees to supervise a school trip. During the trip, one of the children, Chloe, wanders off near a busy road while Ahmed is distracted. Chloe is subsequently injured by a car. Does Ahmed owe Chloe a duty of care regarding his failure to supervise?

Answer: Yes, Ahmed likely owes Chloe a duty of care. By agreeing to supervise the trip, Ahmed assumed responsibility for the safety of the children, including Chloe. This creates a special relationship imposing a positive duty to take reasonable care for their safety, which includes adequate supervision to prevent foreseeable harm like wandering near traffic. His failure to supervise could constitute a breach of this duty.

Special Relationship between Defendant and Third Party

A duty to control a third party may arise if the defendant has a special relationship with that third party, characterised by control or supervision.

Key Term: Control The practical ability and authority to influence or direct the actions of another person or the management of a situation.

This exception is exemplified by Home Office v Dorset Yacht Co Ltd [1970] AC 1004, where the Home Office was held liable for damage caused by young offenders who escaped from custody due to the negligence of prison officers. The officers had control over the offenders, and it was foreseeable that they might cause damage if they escaped.

Worked Example 1.2

A psychiatric hospital detains patients known to have violent tendencies. Due to negligent security procedures, a patient escapes and assaults a member of the public nearby. Does the hospital potentially owe a duty of care to the member of the public?

Answer: Yes, the hospital may owe a duty of care. The hospital has control over its detained patients, particularly those known to be dangerous. This control creates a special relationship between the hospital (defendant) and the patient (third party), giving rise to a duty to take reasonable steps to prevent the patient from causing foreseeable harm to others, such as members of the public, if they escape.

Creation of a Source of Danger

Where a defendant creates a source of danger through their own actions, they may owe a duty to take reasonable steps to prevent a third party from interfering with that danger and causing harm to the claimant.

Worked Example 1.3

A contractor leaves a deep, unfenced excavation pit overnight on a public pathway without adequate lighting or warnings. Some children later push another child into the pit as a prank, causing injury. Does the contractor potentially owe a duty regarding the actions of the children?

Answer: Yes, the contractor likely owes a duty. By creating a source of danger (the unlit, unfenced pit) in a public area, the contractor made it reasonably foreseeable that a third party (like children playing) might interact with the danger, leading to harm. The contractor had a duty to take reasonable precautions (fencing, lighting, warnings) to prevent such foreseeable harm resulting from the danger they created.

Failure to Abate a Known Danger Created by a Third Party

An occupier of land may owe a duty if they know, or ought to know, that a third party has created a danger on their land, and they fail to take reasonable steps to abate (remove or reduce) that danger. This overlaps significantly with principles of occupiers' liability but can arise in negligence too.

Exam Warning

Be careful to distinguish liability for omissions/third-party acts in general negligence from the specific statutory duties owed by occupiers under the Occupiers' Liability Acts 1957 and 1984. While an occupier might be liable under the Acts for dangers created by third parties on their premises, a non-occupier's liability would depend on establishing one of the negligence exceptions discussed here (e.g., creation of danger, control).

Revision Tip

When analysing a problem question involving harm caused by a third party, first identify if the defendant created the initial risk or had control over the third party or the claimant. If not, the general rule of no liability likely applies, unless there's a clear assumption of responsibility.

Key Point Checklist

This article has covered the following key knowledge points:

• The general rule in negligence is that there is no duty of care imposed for pure omissions (failure to act).
• Similarly, there is generally no duty to prevent harm caused by the actions of a third party.
• Exceptions to the general rule exist where there is a sufficient proximity or relationship justifying a positive duty.
• A duty may arise from a special relationship between the defendant and the claimant (often involving an assumption of responsibility).
• A duty may arise from a special relationship between the defendant and the third party who causes the harm (usually involving control).
• A duty may arise where the defendant has negligently created a source of danger which is interfered with by a third party.
• A duty may arise where an occupier fails to abate a known danger created by a third party on their land.
• The application of these exceptions depends heavily on the specific facts, foreseeability, and considerations of what is fair, just, and reasonable.

Key Terms and Concepts

• Omission
• Third Party
• Special Relationship
• Assumption of Responsibility
• Control