TITLE OF ARTICLE:-‘RATIONILISING OMISSIONS LIABILITY IN NEGLIGENCE’

AUTHOR:-SANDY STEEL
MODEL QUESTIONS AND ANSWERS FOR EXAM PART A

Q 1: What is the GENERAL VIEW taken in the article:-

Answer: A (Defendant) should not be held liable to B (Plaintiff) in the tort of negligence
(omission) where A’s Act or conduct does not cause harm or damage to B given the fact that A
is not physically present at the time of careless of conduct. (Robertson v Chief Constable of
West Yorkshire Police)- No liability should arise for omission.

Q 2:- In respect of law of omissions in tort law of negligence what propositions does the
author explore in the article?

Answer:-Author ‘Sandy Steel’ focuses on two concepts in the article- General rule and
distinction between acts and omissions is only a rule of thumb which is not accurate because
there are other acts which should also be understood as omissions and there are certainly
those omissions that do not give rise to a duty of care. The distinction existing between act and
omissions is not enough to properly give rise to duty of care for physical damage which requires
reasonable foresight Author proposes that defendant’s conduct places the victim in a
disadvantageous position due to defendant’s presence and carrying out of careless conduct.

Second concept concerns exceptions to the general rule, recognised exceptions are: assumption
of responsibility, control, creation of risk and special relationship which would clearly give rise
to liability for omission because there is a duty of care in these exceptions.

CRITICISM ON LAW OF OMISSION: Assumption of responsibility is not fully explained, the legal
position is also inconsistent, Creation of risk is argued to be not an accurate exception and
context of special relationships is also unclear.

Q 3:- Alternate formulations for test proposed by the author and how has the author tested
these formulations theoretically in terms of baseline?

Answer:-Alternate formulation is that A shall not be liable to B in negligence for not providing a
benefit to B, A shall only be liable where he puts B in a worse off situation through his careless
conduct or act. Baselines tests used by the author include cancellation case & collision case:- It
is conceived that no duty of care would be owed by A to B where A is not physically present to
save B from being in a worse off position. Existence of defendant in the right time and place is
mandatory to attract liability. The legal position on the entitlement of a person to expect some
careful conduct or dealing from the other is unclear so general liability for omission only arises
where A’s careless conduct clearly places B in a worse off position. Physical presence is not
always necessary to give rise to liability as defendant’s presence may be made out through his
resources like money, vehicle etc therefore, acts and omissions are covered in a single test.

Q 4:- What problems have been highlighted by the author in the proposed revised test?

Answer:-First issue highlighted by the author is ‘over inclusiveness’. Case example:- OLL Ltd v
Secretary of State for Transport:- Defendant was not held under a duty of care and hence not
liable even though he misdirected rescue services in a rescue attempt placing the victim in a
state of danger. No liability arose as held by the Judge that duty of care would only be breached
by ‘direct physical injury’ means defendant’s conduct of misdirecting the rescue attempt did not
amount to a breach of duty of care or omission. Author criticizes this case decision as he
believes that even if the defendant was not physically present his resources and coordination in
that regard were sufficient to assume his presence and also his omission. Author strongly
believes that there is no need of distinction act/omission in physical presence rather the Author
focuses on the need of putting the victim in a worse off situation in order to give rise to a duty
of care (DoC).

Second issue is ‘Under inclusiveness’:- No sufficient consideration is taken into account relating
to damage caused by defendant to the victim. Author proposed that the Alternate formulation
should be applied instead of the general formulation which endorses :- Defendant (A) will be
liable to Victim or plaintiff (B) for causing damage through physical presence as well as presence
of resources in case where A is not physically present (Under this, OLL case would be decided
differently). General test/formulation is also under-inclusive for over-determination of some
events for e.g Victim is shot by two people who are negligent at the same time, under general
test both would not be liable. Whereas under the proposed alternate test both shall be held
liable as both negligent acts are capable of causing a different and independent harm/damage
to the victim hence both the person who shot the victim would be liable.

Third issue is of ‘removal of own property’ for e.g A is drowning and climbs on to another sailor
(B’s) boat for protection, B throws A off and A drown and dies. Under the general test B is not
liable since A would have drowned anyway but under the Author’s proposed alternate test or
formulation B should be held liable because A is in dire need of saving his life, hence the law
should expedite A’s protection by adopting a different line of approach from the general test.
Q 5:- What alternate formulation is also proposed by the Author in regards to reliance on the
‘creation of risk’ concept?

Answer:-Author points to the concept of ‘creation of risk’ by distinguishing between ‘creating a

risk’ & ‘failing to alleviate or reduce a risk’. General rule or formulation is:- A is not liable for the
risk he did not create. Risk is defined as ‘probability of damage’. Example:- A child is drowning
and a person who is passing by sees this happening but does not do anything to help, Child
drown and dies. The person passing by will not be liable under general test as well as under the
proposed alternate test/formulation. And the Author refersthe concept of creation of risk as
vague and unclear.

Q 6:- According to the Author why are positive duties (liabilities for omissions) more difficult
to justify?

Answer:-Positive duties are more difficult to establish compared to negative duties because
positive duties require a person ‘to do something’ while negative duties require a person ‘not to
do something’. For e.g duty not to kill is a negative duty or obligation which does not require
intent in order to be performed. Positive duties require compliance through performance while
negative duties require compliance through refrainment and not through performance.
Imposing positive duties creates extra burden as compared to imposing negative duties so
positive duties would be against moral reasoning or rightness. However under some instances
positive duties are justified when imposed by authorities like legislation and courts etc.

Q 7:- What rationale and coherence to the general rule have been set out by the Author to
justify imposing a duty of care for omissions where a person has voluntarily taken
responsibility?

Answer:-Duty of care arises where there is a voluntary assumption of responsibility as observed

in cases:- Welsh v Chief Constable of Merseyside Police and Mercer v South Eastern.

Voluntary assumption of responsibility alone is not enough to give rise to duty of care but there
should also be RELIANCE (either express or implied) on that assumption of responsibility as held
in Vicario v Commissioner andMichael v Chief Constable of South Wales Police (Murder case). A
duty of care through assumption of responsibility was found in the case Kent v Griffiths.

Note:- Reliance on assumption of responsibility is not a key factor for duty of acre to arise and
the same was experienced in the above cases.

Complications arise where duty of care arose without reliance on assumption of responsibility
(Personal Representatives v Biddick). Duty was assumed by the defendant without reliance by
the victim and duty was found to have been assumed in (White v Jones).
Author gives three principles to impose a duty of care on the basis of assumption of
responsibility:-1)Promise (express o implied) could give rise to a duty of care for e.g between
doctor and patient (Moreom, Barett and Kent) . Promise must be made by free will to give rise
to duty of care. There are inconsistencies in this factor of ‘Promise’. 2) Taking on a task:- Gives
rise to a duty of care and liability for omission where personal injury results instead of damage
to property, this approach may sometimes be unfair to those who give their best efforts but still
unsuccessful. 3) Role and relationship duty:- For e,g Policemen, Lifeguards who are designate
their fixed roles which is justified and fair to give rise to duty of care automatically.

Q 8) What rationale and coherence to the general rule is set out by the author to justify
imposing duty of care for omission when a person has created the risk?

Answer:-On the basis of Mitchell v Glasgow creation of risk by a person gives rise to a duty of
care and liability for omission is justified. There may be reasonable foresight of Physical harm in
relation to the creation of risk incurring duty of care under negligence.

Q 9) What rationale and coherence is set out by the author to justify imposing a duty of care
for omissions when a negligent person is in control of the person or object?

Answer:-Having control over a person or object justifies imposing a duty of care when there is a
foreseeable risk of injury or harm (Dorset Yacht v Home Office). General rule is however
different as it sees those people to be under an extra burden as per the Author’s Alternate test
because such people are totally unconnected with the creation of risk such as a stranger.
Creation of risk is sufficient to impose duty of care (Ripstein) and case (Carmenthenshire v
Lewis). (Goldman v Hargrave:risk created from one’s own property endangering neighbours or
surroundings is also enough to impose duty of care in negligence). This principle as set out by
the author is also consistent and in line with the general rule/formulation.
Q 10) What rationale and coherence to the general rule is set out by the author to justify
imposing a duty of care or omissions on the basis of special relationships?

Answer:- Author relied on Michael case where special relationships such as:- fiduciary
relationships ofemployer and employee, school and pupil, doctor and patient etc. In these
relationships positive duty is justified. This is consistent and in line with the general rule. The
Author’s views in this context include ‘reductive view’-(duty is not based on relationship but on
other factors of a case like the creation of risk and failure to avoid that risk while having
reasonable foreseeability), and ‘relational value rule’- (duty is based on the relationship itself).

The author prefers the ‘reductive view’ compared to ‘relational value rule’ because it takes a
more broad approach in the context of a relationship between two persons that is able to
justify duty of care in a more convincing manner. Author also refers to cases from other
jurisdiction (Hahn v Conley and McCallion v Dodd concerning parental duties and negligence by
such caregivers while taking care of children, imposition of duty in these instances was justified
on the basis of factors of the case and not on the basis of relationship between the parties
hence upholding the ‘reductive view’.

Duty of care existing in the course of special relationships as in ‘relational value rule’ is justified
to be imposed as per the general rule but in a limited context since special relationships are
themselves limited existing between chosen people.