Liability for omissions in tort law
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The law takes a restrictive approach to imposing liability in relation to omissions. The law draws a distinction between misfeasance, where a party does an act negligently, and nonfeasance, where a party does nothing at all. Omissions relate to nonfeasance. The general rule is that no liability exists for an omission:
Stovin v Wise [1996] 3 WLR 389 Case summary
Thus, a person who sees a child drowning in shallow water, is not under a legal obligation to save the child and will incur no liability for their failure to do so. If, however, the person attempts to save the child, but in doing so, acts carelessly and causes harm, they become liable. This rule can be seen as operating harshly in many situations it could be argued that there may well be a moral obligation to act and there is a need for the law to reflect this. There are exceptions to this rule where the law will impose a duty of care in certain situations.
1. Undertaking
Where the defendant agrees to act or voluntarily accepts a responsibility, his later failure to do so will render him liable:
Barrett v Ministry of Defence [1995] 1 WLR 1217 Case summary
Stansbie v Troman [1948]2 KB 48
2. Special relationship
Where there exists a special relationship, eg parent and child, employer and employee, school and pupil, doctor and patient, between the parties there is a legal duty to act.
3. Control of 3rd party who causes damage:
Carmarthenshire County Council v Lewis [1955] AC 549
Home Office v Dorset Yacht Co Ltd [1970] AC 1004 Case summary
4. Control of land or dangerous things:
Smith v Littlewoods Organisation [1987] AC 241 Case summary
P Perl (Exporters) Ltd. v Borough of Camden [1984] QB 342
Haynes v Harwood [1935] 1 KB 146 Case summary