In Donoghue v Stevenson (1932), Lord Atkin referred to ‘acts or omissions which you can reasonably foresee would be likely to injure your neighbour’. The reference to omissions here was to an omission in the course of positive conduct, for example, if a person is driving a car and omits to apply the brakes. At this time the conventional view was that there was no liability in negligence for a simple failure to act for another person’s benefit. Example X has fallen into a river and is drowning. X calls out for help. Y is walking along the river bank and hears X. There is a lifebelt provided on the bank but Y walks past and does nothing. In these circumstances there is no liability on Y as he does not owe X a duty of care, unless there is a relationship between X and Y which gives rise to a duty to act positively. What would be the position if Y embarked on a rescue attempt and then withdrew, making X’s position worse? By embarking on a positive act, does Y undertake a duty? Would it be strange to say that the person who does nothing has no liability, whereas the Good Samaritan could be sued?
The principles on liability for omissions were laid down by the House of Lords. Smith v Littlewoods Organisation Ltd [1987] 1 All ER 710 L bought a cinema in Dunfermline with the intention of demolishing it and building a supermarket. The cinema was empty and a fire was started by unknown children. The fire spread to the appellant’s land and damaged his buildings. Fires had previously been started in the building but this fact was not known to L. The appellant’s action in negligence against L failed. Lord Goff stated that there was a general principle that no duty existed to prevent persons deliberately inflicting damage on another person. There were four exceptions to this principle. 1 Where there was a special relationship between the parties such as a contractual relationship. An example of this arose in Stansbie v Troman [1948] 1 All ER 599. A decorator working on the plaintiff’s premises was told to lock up if he went out. He did not and a thief entered the house and stole money. The decorator was held liable for the loss. 2 Where there was a special relationship between the defendant and the third party. In Home Office v Dorset Yacht Co Ltd [1970] 2 All ER 294, boys escaped from a borstal due to the negligence of the appellant’s employees. The boys caused damage to the respondent’s property. The appellants were responsible for controlling the third party (the boys) and were held to owe a duty of care to the respondents. 3 Where the defendant negligently causes or permits a source of danger to be created, which is then interfered with by third parties. In Haynes v Harwood [1935] 1 KB 146 a horse was left unattended in a busy street. Children threw stones at the horse and it bolted. A policeman was injured in attempting to stop the horse. The defendant was held to owe a duty of care to the policeman.
4 Where the defendant knew or had means of knowledge that a third party was creating a danger on his property and failed to take reasonable steps to abate it. Examples of this kind of liability usually arise in nuisance. See, for example, Goldman v Hargrave [1966] 2 All ER 989. There was no liability under this head in the present case as the defendants had no means of knowing that the building represented a fire hazard. It should be pointed out that Lords Brandon, Griffiths and Mackay decided the case on its own facts. They did not rule out liability on the basis of any general rule of no liability. It is therefore possible that liability could be developed from these speeches. Lord Griffiths: The fire in this case was caused by the criminal activity of third parties on Littlewoods’ premises. I do not say that there will never be circumstances in which the law will require an occupier of premises to take special precautions against such a contingency but they would surely have to be extreme indeed. It is common ground that only a 24-hour guard on these premises would have been likely to prevent this fire, and even that cannot be certain, such is the determination and ingenuity of young vandals. There was nothing of an inherently dangerous nature stored in the premises, nor can I regard an empty cinema stripped of its equipment as likely to be any more alluring to vandals than any other recently vacated premises in the centre of a town. No message was received by Littlewoods from the local police, fire brigade or any neighbour that vandals were creating any danger on the premises. In short, so far as Littlewoods knew, there was nothing significantly different about these empty premises from the tens of thousands of such premises up and down the country. People do not mount 24-hour guards on empty properties and the law would impose an intolerable burden if it required them to do so save in the most exceptional circumstances. I find no such exceptional circumstances in this case . . . I doubt myself if any search will reveal a touchstone that can be applied as a universal test to decide when an occupier is to be held liable for a danger created on his property by the act of a trespasser for whom he is not responsible. I agree that mere foreseeability of damage is certainly not a sufficient basis to found liability. But with this warning I doubt that more can be done than to leave it to the good sense of the judges to apply realistic standards in conformity with generally accepted patterns of behaviour to determine whether in the particular circumstances of a given case there has been a breach of duty sounding in negligence. What if the loss to the claimant was pecuniary rather than physical? This is the case where a regulatory body (frequently established by statute) fails adequately to supervise the work of a third party. This was the situation in the following case. Yuen Kun-yeu v Attorney-General of Hong Kong [1987] 2 All ER 705 The Commissioner regulated deposit-taking businesses in Hong Kong and had discretionary powers to refuse to register or to revoke the registration of an unfit company. The plaintiff had deposited money with a registered deposit-taking company which went into liquidation and alleged that the Commissioner should never have registered or should have revoked the company’s licence. The Privy Council held that no duty of care was owed by the Commissioner to the plaintiff. No such statutory duty was owed and a common law duty would not be imposed. The Commissioner’s duty was towards the general public, but there was no special responsibility towards individual members of the public. A duty could not be established on the basis that the plaintiff had relied on the company’s registration as this was neither reasonable nor justifiable.
This approach has been followed consistently by the courts in subsequent cases involving regulatory agencies, but an interesting perspective was added by the House of Lords decision in White v Jones. White v Jones [1995] 1 All ER 691 The facts and decision in this case are analysed in Chapter 5. The case involved an omission to act on the part of the defendant solicitors in that they failed to amend the will in accordance with the testator’s wishes. Had the issue been between the testator (client) and the solicitor, there would have been no problem as there would have been an omission in the course of a positive undertaking to the client to perform a particular task. In the context of liability to a third party (the beneficiary) there was a problem as to whether the solicitor could be liable for an omission to act. In the absence of an undertaking by the solicitor to the third party, it would be expected that there would be no duty owed. However, Lord Browne-Wilkinson (with whose speech Lord Nolan agreed) thought that there was, even in the absence of an undertaking to the beneficiaries, a sufficient undertaking, in the sense of an assumption of responsibility for the task of amending the will, to found a duty of care. The principle of assumption of responsibility can also be seen in Barrett v Ministry of Defence [1995] 3 All ER 86. Here the navy were held to owe a duty of care in respect of the death of a sailor who had drunk himself unconscious. The duty was not to prevent him drinking to that stage but once an officer had arranged for him to be taken to his room, there had been an assumption of responsibility for his welfare. (See also Jebson v Ministry of Defence [2000] 1 WLR 2055.) The law on omissions is complicated by the fact that there are usually other policy issues in omissions cases. These may arise in cases involving statutory authorities such as the following one. Stovin v Wise [1996] 3 All ER 801 A bank of earth on British Rail property made it difficult for drivers turning right at a junction to see traffic approaching. A number of accidents had occurred at this spot previously. W drove her car into S’s motor cycle. W’s insurer paid off S and sought a contribution from the highway authority which had failed to implement its earlier decision to remove the mound of earth, which it had the power to do. The House of Lords (by a majority) found that the highway authority was not liable. (See also Gorringe v Calderdale Metropolitan Borough Council [2004] 2 All ER 326.)
LIABILITY FOR THE ACTS OF THIRD PARTIES
This subject is closely related to the question of liability for omissions. The question is: when will A be liable to B for the negligent act of C? Any question of A’s liability will normally concern his omission to exercise control over C. This raises the question of what area of negligence law should be used to determine these cases. Lord Goff’s approach in Smith v Littlewoods is to deny a general duty of care. Lord Mackay and the majority of the House of Lords concentrate on fault (breach of duty) as the determining factor. The court looks at the blameworthiness of the defendant’s conduct in creating the risk. A further possibility is to argue that the damage is too remote, perhaps because of the act of the third party breaking the chain of causation. (See Topp, below.) Carmarthenshire County Council v Lewis [1955] 1 All ER 565 A lorry driver was killed when he swerved to avoid a four-year-old child. The child had been left in a classroom at school while the teacher attended to another child. The child had wandered out on to the road and caused the accident. The defendants were held liable on the basis of their vicarious liability for the teacher’s negligence. Duty was established on the basis of a reasonably foreseeable plaintiff. (See also Home Office v Dorset Yacht Co above.) What is noticeable in the decision is the absence of discussion on proximity and policy. In modern terms it is perhaps best regarded as a case based on the school’s assumption of responsibility for controlling the child. P Perl (Exporters) Ltd v Camden London Borough Council [1984] QB 342 The defendant council owned adjoining premises. One (142) was let to the plaintiff and the other (144) was divided into flats. There was no lock on the door of 144 and thieves entered and knocked a hole in the wall into 142. Property belonging to the plaintiff was stolen. The Court of Appeal held that the defendants were not liable as mere foreseeability of harm was not sufficient to establish a duty. A policy issue which exists in this area and which may partially explain the courts’ reluctance to impose duties is insurance. In the cases of fire damage, the claimant will normally have fire insurance and so will not be out of pocket. But in inner-city areas it may be difficult to obtain fire insurance. Topp v London Country Buses (South West) Ltd [1993] 3 All ER 448 The defendant bus company ran minibus services. A bus was left empty, with the keys in the ignition, waiting for a relief driver who did not turn up. This was reported to the company, which did nothing. The bus was stolen by joyriders who ran over and killed the plaintiff’s wife. The joyriders were not traced and the plaintiff sued the bus company. The Court of Appeal found that no duty of care arose. The decision was based on Lord Goff’s judgment in Smith v Littlewoods. The voluntary act of another which is independent of the defendant’s fault is a novus actus interveniens breaking the chain of causation. There was no ‘special’ risk giving rise to sufficient proximity. It is certainly arguable that the law was not applied correctly in this case as it is difficult to see how the joyriders’ act was independent of the defendants’ fault. The trial judge had found that the defendants had been careless. The answer must lie in what Lord Goff means by independent. (See, for example, the facts and decision in Smith v Littlewoods.) This could mean ‘not connected with’ or it could have a meaning similar to that in vicarious liability.
LIABILITY OF PUBLIC AUTHORITIES
Introduction One theme which can be seen to run through many of the cases discussed in this section is that the defendant is a public authority. Negligence actions involving public authorities are particularly complex. There are four reasons for this:
1 The loss involved is generally pure economic loss, which poses particular problems for tort law.
2 The breach of duty in question is frequently an omission to act which also creates particular difficulties.
3 The breach may well take place against the background of statutory powers and raise questions of whether tort law has a role or whether public law remedies are appropriate.
4 As the action is against a public authority, the Human Rights Act 1998 may well have a role to play. The common law has not provided a definition of ‘public authority’ but the broad definition in the Human Rights Act 1998 s 6(3) states that ‘it includes a court or tribunal and any person certain of whose functions are functions of a public nature’
It would appear that the Act may have an effect on the tortious liability of public authorities in two respects. First, it may bolster an existing right of action against a public authority. An example of this would be the immunity debate which is taking place. Second, it may have the effect of creating new causes of action in tort as the Act provides its own independent basis for an action against a public authority. Such cases need to be heard in accordance with Strasbourg jurisprudence, such as the doctrine of proportionality. These ‘constitutional torts’ will be established where a claimant successfully alleges that a public authority has violated one of the constitutional rights the claimant enjoys as a result of the Act. (See Van Colle v Chief Constable of the Hertfordshire Police [2007] 3 All ER 122.) In terms of negligence actions, the significance of the defendant being a public authority has been the allocation of resources and whether some of the scarce resources allocated to public authorities should be diverted by private law into compensating individuals for a public authority’s negligence. It should be remembered that many of these actions take place against a background of statute law. A claimant may invoke a claim for the tort of breach of statutory duty. The rules for this tort are separate and set out elsewhere. Alternatively, the claimant will argue that a common law duty of care can be created against the background of the provisions of the statute. These claims are argued on the usual rules of negligence. An important distinction between the two claims was made by Lord Steyn in Gorringe v Calderdale Metropolitan Borough Council [2004] 2 All ER 326: [I]n a case founded on breach of statutory duty the central question is whether from the provisions and structure of the statute an intention can be gathered to create a private law remedy? In contradistinction in a case framed in negligence, against the background of a statutory duty or power, a basic question is whether the statute excludes a private law remedy? An assimilation of the two inquiries will sometimes produce wrong results.
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