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Why will the court rarely impose such duty and in what circumstances might such a duty be imposed?The tort of negligence, according to Percy H. Winfield’s lasting definition, is “the breach of a legal duty to take care by an inadvertent act or omission that injures another.” The law concerning negligence by the defendant for a breach due to omission, set out in Stovin v Wise [1996] & Smith v Littlewoods[1987] states that there is no universal duty to act in prevention of harm or injury to another, thus, if there is no duty, there can be no liability and therefore, no compensation for harm caused by failure of someone to do something.[1] Extensions of Donoghue v Stevenson [1932][2] interprets Lord Atkin’s statement for a duty of care arising due to acts or omissions to now suggest that he only meant omissions in situations where a pre-tortious relationship existed. While there may be arguments made against the exclusionary principle regarding pure omissions, the rule was strongly reiterated by the House of Lords in Sutradhar v National Environmental Research Council [2006][3]. Typically, courts infrequently impose a duty of care on defendants for an omission(nonfeasance). Lord Hoffman in Stovin v Wise [1996][4] identified political, moral and economic reasons why no duty should be owed. In political terms, Lord Hoffman said that it would be an invasion of an individual’s freedom for the law to require him to consider the safety of others in his actions and to impose upon him a duty to rescue or protect. The moral version applies the “Why me?” argument since a duty to prevent harm or assist another may apply to a large and indeterminate class of people, therefore, why should one be held liable over another? One of the policies courts consider is deterrence, in Lord Hoffman’s economic argument, he applied such. The efficient allocation of resources usually requires an activity should bear its own costs. The market can now appear distorted if it is able to impose its costs on people, making it appear cheaper than it really is; therefore, liability to pay compensation for loss caused, acts as a deterrent against increasing the cost of the activity to the community and thus reduces externalities. Courts often base their decisions on ‘floodgates principle’, this legal principle restricts or limits the right to make claims for damages due to a concern that permitting a claimant to recover in such situation may open the metaphorical ‘floodgates’ to countless claims; permitting certain cases, especially against a public body, can have inconsiderable consequences. Article 223-6 of the French Penal Code[5] makes it a criminal offence to not assist someone in danger (once it does not risk your own safety), this should also translate to a civil obligation and potential liability if breached. However, Lord Keith in Yuen Kun Yeu v Attorney General of Hong Kong [1988][6] stated that there is no duty to even go to the rescue of another who is about to injure themselves accidentally or even to shout to warn them. This does extend, that if someone does act, they have a duty to not make the situation worse as they will be held liable. Various countries have passed ‘Good Samaritan’ statutes which provide immunity from suits, while the UK has not. The Social Action, Responsibility and Heroism Act 2015 (SARAH)[7] does not provide immunity from lawsuits, but rather compels the court to consider whether the defendant fell below the standard of the reasonable or expected standard of care. Though a duty of care for omissions is rarely enforceable, there are some limited exceptional circumstances which impose a duty of care upon the defendant. These circumstances include: Control, Assumption of Responsibility, Creation or adoption of risk, and lastly, legal/statutory duties regarding public bodies. Adaptation of special relationships was established in the cases of Anns v Merton LBC [1978][8] and Caparo Industries PLC v Dickman [1990][9] which stated that there must be a sufficient proximity between the claimant and the defendant, not just geographical, but also in relationship. These are situations where the defendant should owe a duty to the claimant because they exercise a high degree of control over them, or have express responsibility over them. Other than the standard application to parents and children, teachers and students, drivers to passengers[10], doctor to patients[11] and many more pre-existing relationships, it also extends to situations where the defendants exercise control of persons harmed that they have an imposed positive duty to take steps to prevent such, either infliction by claimant or other persons to claimant. In Reeves v Commissioner of Police for the Metropolis [2000][12] a known suicidal prisoner committed suicide in police custody, police were found liable since they would’ve been obligated to ensure his safety due to his instability, whereas, in Kirkham v Chief Constable of Greater Manchester [1990][13] a similar claim of a prisoner committing suicide was brought but it was found that the police were not liable since a doctor verified that claimant was not mentally ill; thus the duty of care owed is to only take reasonable steps to assess whether prisoner posed a suicide risk and to act accordingly. This was later emphasized in Savage v South Essex Partnership NHS Trust [2008][14] where a positive duty was owed to a suicidal patient who was detained in a mental hospital, to keep them in that hospital. Positive obligations should arise if the defendant assumed responsibility for the claimant’s well-being. In Costello v Chief Constable of Northumbria Police [1999][15], a duty arose from an employment relationship, where it was established that Police officers assume a responsibility to ‘watch each other’s back’. Consequently, in Barret v Ministry of Defence [1995][16] a duty was owed due to their positive act prior to the omission. When the defendant assumed responsibility for him, they fell short of the reasonable standard expected, since they did not summon medical assistance and provided inadequate supervision. If the defendant-accidentally or intentionally- creates a dangerous situation, a positive duty to remediate danger may be imposed. Capital & Counties plc v Hampshire County Council [1997][17] established that the fire service as a public body owed a duty to not create danger and to not make the situation worse if positive actions are to be done. In Goldman v Hargrave [1967][18] a tree caught fire after being struck by lightning, defendant deciding to take no steps to extinguish it shows adoption of the risk of the fire spreading to the neighbor’s property, thus, a duty of care was owed. Concerning public bodies, a duty of care claim in tort cannot be brought by a matter of Policy decisions made by Government, but rather by operational decisions. It has been cited that the police do not owe a duty of care to an individual victim of crime, however, to the public.[19] Where there is sufficient foreseeability[20] and sufficient proximity[21] as stated in the Caparo test[22], the police would owe a duty of care. The only duty of care imposed on the fire brigade is not make the situation worse[23]. The ambulance service owes a duty of care once the 999 call is accepted, they must attend in a reasonable amount of time[24]. Concerning the armed forces, there is no duty of care owed in combat[25], whereas a duty can be owed in exercises outside of war[26]. There has been an expansion of the law with respects to other types of public bodies, these include child welfare and protection services or the education services of local authorities. The European Court of Human Rights has influenced the law of Tort, potential breaches of human rights are now considered alongside claims of negligence[27]. While there may be potential movement towards the use of breach as a control mechanism in negligence claims, the House of Lords rejected this idea in the leading child welfare case[28]. There is no general duty to prevent other people causing damage (3rd Parties). The exceptions which arise are: proximity between defendant and claimant[29], proximity between defendant and third party[30], creation of a source of danger[31] and failure to abate known danger[32]. While the law assumes a restrictive approach to imposing liability in relation to omissions, there are still numerous circumstances where bodies can be held liable for breach of an owed duty of care. It can be opined that the law regarding misfeasance may prompt individual to nonfeasance. Considering the moral obligation to act, the repercussions of acting and consequently causing harm may make a ‘Good Samaritan’ liable. Through the harsh operation of the law, persons without a legal obligation to act in the prevention of harm to another may not want to assume the risk of a ‘lawsuit’. [1] Stovin v Wise [1996]; Smith v Littlewoods [1987] [2] Donoghue v Stevenson [1932] [3] Sutradhar v National Environmental Research Council [2006] [4] abid [5] Article 223-6 French Penal Code [6] Yuen Kun Yeu v Attorney General of Hong Kong [1988] [7] The Social Action, Responsibility and Heroism Act 2015 (SARAH) [8] Anns v Merton LBC [1978] [9] Caparo Industries PLC v Dickman [1990] [10] Nettleship v Weston [11] Barnett v Chelsea & Kensington Hospital [12] Reeves v Commissioner of Police for the Metropolis [2000] [13] Kirkham v Chief Constable of Greater Manchester [1990] [14] Savage v South Essex Partnership NHS Trust [2008] [15] Costello v Chief Constable of Northumbria Police [1999] [16] Barret v Ministry of Defence [1995] [17] Capital & Counties plc v Hampshire County Council [1997] [18] Goldman v Hargrave [1967] [19] Hill v CC of West Yorkshire [1989] [20] Swinney v CC of Northumbria [1999] [21] Reeves v Metropolitan Police Commissioner [2000] [22] abid [23] Church of Jesus Christ of Latter Day Saints v West Yorkshire FCDA [24] Kent v Griffiths [2000] [25] Mulcahy v Ministry of Defence [1996] [26] Bici v Ministry of Defence [2004] [27] Osman v UK [1999]; Z v UK [2001] [28] JD v East Berkshire Community Health NHS Trust and others [2005] 2 WLR 993 [29] Selwood v Durham County Council & Ors [2012] [30] Home Office v Dorset Yacht [1970] [31] Haynes v Harwood [1936] [32] Everett v Comojo (UK) Ltd [2011] |
AuthorKarina Samaroo Archives
September 2019
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