Liability for Omissions

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Liability for Omissions

The law has historically been reluctant to impose a general liability for omissions as opposed to positive acts. This means that there is no general duty of care in tort to act in order to prevent harm occurring to another. In Smith v Littlewoods Organisation, Lord Goff stated clearly that “the common law does not impose liability for what are called pure omissions”. Similarly, in Yuen Kun Yeu v A-G of Hong Kong, Lord Keith stated that people can ignore their moral responsibilities to prevent harm occurring to another, even when it is easily within their power to do so. He added that it would be unthinkable for there to be “liability in negligence on the part of one who sees another about to walk over a cliff with his head in the air and forbears to shout a warning”. Again in Home office v Dorset Yacht Co, Lord Diplock stated that such omissions might attract moral censure, but they attract no liability in English law.

The reasons behind this approach were discussed by Lord Hoffmann in Stovin v Wise. He put forward three reasons for not imposing a duty for a failure to act:

- Political. A legal requirement on a person to act in order to prevent harm to another involves an invasion into an individual’s freedom and autonomy because it requires them to take positive steps. This is based on the political theory that should be concerned purely with their own self-advancement and not subject to legal liability for failing to intervene for the benefit of others.

- Moral. This raises the problem of identifying who should be liable for the damage, the person who caused it, or the person who failed to act to prevent it? It will be morally questionable to impose liability on a person who did not act to prevent the harm in such circumstances. Moreover, there may be a large and indeterminate class of other persons who may also have been in a position to prevent the harm. Why should one person be held liable rather than another?

- Economic. Where someone is carrying out a social or economic activity, they are deriving a benefit form it, so it is only fair to impose a duty on them to bear the costs where such an activity results in harm to others. However, there is no similar justification in requiring a person who is doing nothing to have to spend money on behalf of someone else. Therefore, this amounts to forcing a person to bear the costs of someone else’s negligence.

Nevertheless, the distinction between an act and omission may be a difficult one to make. In the same case, Lord Nicholls noted this, stating that “in some cases the distinction is not clear cut”. Often, an act may just as easily be described as an omission. For example, a misdiagnosis may involve an act of misdiagnosing, or an omission to make the correct diagnosis. Lord Nicholls also emphasised that there may be what are called “pure” omissions or omissions which are part of a larger course of activity set in motion by the defendant. In the latter case, it usually will be more justified for a duty of care to be placed on a defendant once he has embarked on a course of conduct which may harm others.

Therefore, in the absence of special circumstances, there is no duty of rescue in English law. However, if a person does decide to rescue, and exposes the person at risk to new danger or makes the situation worse, it has been held in Horsely v Maclaren that such a person will be liable. This general position of no duty has been criticised by some commentators. Prosser and Keeton for example comment that leaving such a duty to a person’s conscience is ineffective in this wicked world we live in. Moreover, Bender takes a similar view of the issue, stating that the tort law needs to be more caring than it is now, focusing more on collective responsibility rather than on individuality, and more on safety and help for the injured than economic efficiency. Others, such as Weinrib take a more moderate approach, endorsing a duty of “easy...
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