Omissions

The concept of voluntary assumption of responsibility has proved a useful tool in solving many of the problems associated with the duty of care - Justin Santiago

The traditional approach of the common law has been to adopt the general rule that for a duty of care to exist there must be a voluntary assumption of responsibility and there is no liability for omissions – no duty to care to prevent harm. This approach is premised upon a highly individualistic political theory which holds that people should be concerned purely and simply with their own self advancement and not subject to legal liability for failing to intervene for the benefit of others.

In broad terms, omission cases are still governed by the principles set down in
Stovin v Wise: a party cannot generally be held liable for a failure to act, so long as they have not actually created the danger themselves.

However cases like Gorringe v Calderdale MBC have placed some curbs on bars to liability for omission cases. Lord Hoffmann left open the possibility that a public body could be held liable for a failure to exercise a statutory discretion where (1) the failure to do so is Wednesbury unreasonable or irrational and (2) there are exceptional grounds for holding that the policy of the statute requires compensation.

Additionally the courts are more willing to hold people liable in tort for their negligent omissions in the following circumstances :-

1. Where they have agreed, expressly or impliedly to take on a responsibility for the benefit of others : Stansbie v Troman, The Ogopogo – duty to take reasonable care to effect a rescue

2. Where the omission is part of an ongoing physical activity

3. Protection of the vulnerable for example very young children : Barnes v Hampshire County Council

4. A level of control that creates a liability for occasioning harm – control imports responsibility: Home Office v Dorset Yacht

5. Creation of a source of danger : Haynes v Harwood, does nothing to contain a danger : Goldman v Hargraves

6. Owners and occupiers of land creates or allows to be created a source of danger : Smith v Littlewoods