Liability in Tort for Omission in English Law

Introduction

English law does not recognise any liability in tort for omission of a person to help another in a difficulty. In general, the approach to liability in tort for omission can be summarised in the words of the court in L Esher Lievre v Gould, in which case the court observed that “A man is entitled to be as negligent as he pleases towards the whole world if he owes no duty to them.” From this, it may be surmised that a person’s liability in omission would be linked to their duty of care and in the absence of such duty, there would not be a liability in tort for omitting to assist another individual in a difficulty. However, if such a law is made that imposes a duty to assist another individual who is in a difficulty, then in essence what the law would be providing is that there would be a duty and an obligation to conduct with a particular standard of care in situations where a person finds himself in close proximity to another in difficulty and is in a position to assist.

Some support for making such a law can be found in the judgment of Lord Goff in Smith v Littlewoods, in which he indicated that the legal treatment of omissions may be subjected to review at some time in the future. Thus, Lord Goff appears to have been making a case that while the law on omissions was appropriate at that time, it may need reconsideration at a future time. Based on that, even if that approach is considered to be correct, the question would then arise if the right time to reconsider the law of omissions has come. However, as Lord Hoffman noted, there is a strong argument against it in the form of ‘why pick on me?’, which says that why should a particular individual be made responsible to assist someone in trouble.

This essay critically analyses whether there should be a reform of the current law so as to impose a general duty on citizens to assist their fellow citizens who are in difficulty. In other words, the question explored in this essay is whether a Good Samaritan law be passed so as to make it a legal obligation to assist fellow citizens in difficulty.

This essay posits that there should not be a reform in the law for enforcing liability of this nature as this would create too much burden on individuals and also have economic implications for them. There is no doubt that there is a moral imperative or duty for a person to assist another in a time of difficulty. However, whether such moral duty can be translated into a legally binding duty depends on a variety of considerations, which needs to be carefully considered before such a law comes into being.

One of the reasons why there are objections to the making of such a legislation that puts a legal duty on a person to assist another is that despite the moral imperative to provide such assistance, the person providing such assistance may be putting himself at risk of litigation, which is to be carefully considered given the increasingly compensation oriented culture seen in the legal system. Another reason that may be advanced as an objection to such legislation is linked to liberal individualism and autonomy and in this context, where law has determined a duty of care in respect of omission judicial reasoning seems to be grounded in the concept of individualism and individual responsibility for one's own actions, and in cases of third parties, where one has taken control of or has assumed responsibility for another. The general position of the law is that if a person sees another about to walk into danger and forebears to shout a warning to him, he may be held liable for omission; that the law does not normally impose a positive duty on a person to protect others, or the law does not impose liability for pure omissions; and that simply on the basis of foreseeability, the law does not impose a duty to prevent a person from being harmed by the criminal act of a third party. This is the established law relevant to omission of a party. The question as to how far this law should be reformed so as to impose a positive duty to assist another or a liability for pure omissions is rather controversial.

In Palmer v Tees Health Authority, the court observed that in a situation where there is no sufficient proximity between the parties, it is more appropriate that a legal duty to take care not be imposed because the consequence of imposing such legal duty would mean that individuals would be in a permanent state of over- responsibility towards others and this may lead them to neglect their own needs.

To the above, it may be added that putting individuals in such state of over-responsibility, may also mean that such individuals put themselves in a danger in order to avoid legal liability for omission. It may also mean that such individuals may then force some other individual to take it upon themselves to extricate them from the difficulty adding to the danger involved in the entire situation. As noted by Hoffman, policy considerations with respect to law on pure omissions cannot be made with the ideas of Good Samaritan and in reality judges may favour individualism because it “permits the avoidance of vulnerability and requires self-sufficiency.” In other words, a person is responsible to himself and owes a duty of care to those with whom he is in sufficient proximity, and not others.

Thus, law may take a restrictive approach to imposing liability in relation to omissions, choosing to attach liability to misfeasance, where the defendant does a negligent act or omission, and nonfeasance, which relates to pure omission on the part of an individual. This can be seen in the case of Stovin v Wise, wherein the plaintiff suffered serious injuries when he was knocked off his motorcycle by a car driven by the defendant, and the Norfolk County Council was held 30% liable for omission to take steps in making the junction safe; while in appeal the liability of the Council was not made out. Lord Hoffman’s observations in the judgment are relevant here:

“There are sound reasons why omissions require different treatment from positive conduct. It is one thing for the law to say that a person who undertakes some activity shall take reasonable care not to cause damage to others. It is another thing for the law to require that a person who is doing nothing in particular shall take steps to prevent another from suffering harm from the acts of third parties or natural causes.”

Therefore, judicial opinion on the question of liability for pure omission, as noted by Lord Hoffman is that while a person can be held liable for omission where he has undertaken some activity; same liability cannot be enforced on a person who has not undertaken any activity and has merely omitted to assist another. Lord Hoffman also explained that the neighbour test articulated by Lord Atkin in Donahue v Stevenson, would not be appropriate in pure omission cases, as Lord Atkin himself noted through the following parable:

“The priest and the Levite, when they saw the wounded man by the road, passed by the other side. He obviously was a person whom they had in contemplation and who was closely and directly affected by their action. Yet the common law does not require a man to act as the Samaritan did.”

While it may see morally indefensible that a person seeing another in danger does not assist him, there are political and economic reasons why such a reform in the tort law should be avoided. In political terms, the objection to such a law would be that it would interfere with the individual’s right to liberty and autonomy by enforcing on him a duty to protect or assist another. Added to that is the practical difficulty of imposing liability in a situation where there were more than one bystanders at the time. Would law make one liable and not the others? If so, this would be unfair to the one being ‘picked on’. What would happen if there are many bystanders?

From an economic perspective, if such a reform is made, there may be situations where an individual is required to bear the economic costs for taking action in order to protect another individual, but there are no rewards or compensatory mechanisms that would put the assisting individual in the place where he was before he provided assistance. It has been argued that a rule of no-liability for rescue is efficient where a legal duty to rescue creates a substitution effect, whereas duty for rescue may be imposed in cases where there is a special relationship between the potential rescuer and the victim.

There is also a third issue which needs to be noted here, which is that of the possibility of the rescuer or assister himself ending up causing harm, which may expose him to litigation. Therefore, the rescuer may be taking on a risk of litigation in order to assist another. It may also be noted that the law is not completely silent on liability for omissions and there does exist such liability in appropriate cases, which should be the only cases where such liability is imposed. First, where the individual has agreed to act or voluntarily accepted responsibility, omission on his part will make him liable for omission. This can be seen in the case of Barett v Ministry of Defence, wherein the latter was held liable for the death of an intoxicated personnel, because a senior officer assumed a responsibility for him and ordered a Petty Officer to look after the intoxicated. Second, liability for pure omission can be imposed in cases of special relationships, such as those between a parent and child, or a school and pupil, which would make it incumbent on the individual to assist. Third, in cases where defendant had control over a third party which caused the harm, liability for omission can be imposed as it was in

Home Office v Dorset Yacht Co Ltd, wherein some young offenders in supervision of Borstal regime, were left unsupervised on one night, when they stole a boat and harmed plaintiff’s yacht. The court held the Home Office liable for their omission due to their position of control and foreseeability of harm. Fourth, liability for omission can be imposed where defendant was in control of land or dangerous things.

Undoubtedly, these exceptions mentioned above also go to show that liability does not arise in cases of pure omissions, but only in the cases of special relationship, assumption of responsibility, control of a third party, or control of land or dangerous thing. This may lead to those asking for reform to argue that law needs to move beyond this point. However, moving beyond this point would be putting individuals under a burden of over-responsibility, infringing their political rights, and also putting in some situations an economic burden on individuals to act for assisting others in difficulty. These are important reasons to consider not making such reform for enforcing liability for omission in tort law.

Bibliography

Table of cases

Barrett v Ministry of Defence [1995] 1 WLR 1217.

Donahue v Stevenson [1932] AC 562

Home Office v Dorset Yacht Co Ltd [1970] AC 1004.

L Esher Lievre v Gould [1893] 1 QB 497.

Palmer v Tees Health Authority 1999] All ER (D) 722.

Smith v Littlewoods Organisation Ltd [1987] AC 241.

Stovin v Wise [1996] 3 WLR 389.

Yuen Kun Yeu v Attorney General of Hong Kong [1988] AC 175

Books

Hoffmaster B, ‘What does vulnerability mean?’ (Hastings Center Report 2006).

Howarth D, Matthews M, Morgan J, O'Sullivan J and Tofaris S, Hepple and Matthews' Tort Law: Cases and Materials (Bloomsbury 2016).

Journals

Faure, MG ‘Liability for Omissions in Tort Law: Economic Analysis’ (2011) 2(2) Journal of European Tort Law 184.