QUESTION

Critically assess the justifications for the general rule that an individual is not liable in tort for loss or injury resulting from his/her passive inactivity (the pure omissions rule).

ANSWER

In the case of tort law and negligence, the omissions rule holds a very strong hold, cause and effect on the law. According to this rule, liabilities for omissions exist only exceptionally. These special events or circumstances involve the defendant creating new or increased risk or danger, possessing powers of control over the risk, being in occupation of land, or having assumed responsibility for the risk or for the plaintiff’s safety. Yet despite of this commitment to the rule, both the justification in the course of imposing special requirements over omissions liability and distinction between acts and omissions cannot be well understood. This leads to a situation where the distinction is often misapplied, and is frequently challenged.

Normally, in respect to pure omissions no duty can be imposed – that is, the events where sometimes the defendant has not created any danger or harm to the complainant or the claimant but fails to prevent the person from sustaining any harm. There may be a number of reasons for this.

The society’s focus over the modest aim of reducing wrongdoing instead on the more ambitious one of encouraging good deeds is high. On the other side in such situations a large number of potential defendants prove to be a failure to act. For example, there is no duty to rescue even if the act of rescue could be done without any personal risk.

The law considers a restrictive approach on imposing liability in relation to the omissions. There is a difference identified by the law and draws a distinction between misfeasance, that is, where a party does an act negligently, and non-feasance, that is, where a party does nothing at all. Omissions are dealt under the term of non-feasance. The general rule is that there is no liability for an omission.

Stovin v Wise [1996] 3 WLR 389     House of Lords

Mr Stovin suffered serious injuries when he was knocked off his motorcycle by a car driven by Mrs Wise. A junction was pulled out of her that resulted in the hampering of the visibility of traffic because a bank of earth was topped by a fence (Association, 2008). Mrs Wise was held 70% to blame by the trial judge for the accident and the rest 30% blame was held on Norfolk County Council  because it was already known to them that the junction was dangerous and they neglected the same and did not take any steps to make it safe. The Council appealed.

Held: The council was not considered liable as it is taken as a liability related to an omission. Only three accidents were reported in the past twelve years, thus, it will not be enough to render the junction a ‘cluster site’. At least five accidents in three years are required under the Council’s policy for prioritizing funding.

 Lord Hoffman on imposing liability for omissions:

“There are sound reasons why omissions require different treatment from positive conduct (Kortmann, 2001). The law states one thing that a person who is undertaking any activity has to take utmost care that his activity will not cause damage to others. The other thing that the law requires is that a person who is not doing anything in particular will be required to take necessary steps in order to prevent others from suffering harms caused due to the acts of third parties or natural causes .”

Thus, a person seeing a child drowning in shallow water, is under no a legal obligation to save the child and will incur no liability if he fails to save the child even if he tried or not to save the child. But if the person attempts to save the child, and in doing so, acts negligently, carelessly and causes harm, he becomes liable. This rule is still under debate and discussions and it can be argued that a moral obligation to act may be there and a need for the law to look into it should be there and reconsider this (Dagger, 2007). However, an  exception to this rule is there, where a duty of care will be imposed by the law in certain situations.

But where the defendant voluntarily accepts or agrees to act for the responsibility, his latter fails to do so will render him liable

Barrett v Ministry of Defense [1995] 1 WLR 1217

In English Law, the starting point in a situation for any such consideration is the principle that is being pronounced by the Lord Goff in the House of Lords (the UK’s highest appeal court) in Smith v Littlewoods Organization Ltd [1987] 2 AC 241 that “the common law does not impose liability for what are called pure omissions”, in other words, no general duty of care is owed by any one person in the way to prevent harm occurring to another. Thus, if English law is applied, then those in the bible story who passed the wounded man were entitled to do as they did before the Samaritan came along (JAECK).

This shows that even if there was a moral duty or a moral obligation, still the English Law and courts did not hold any liability for the act of omissions.

A duty to act only arises where there is a relationship which gives rise to such a duty. Such as the relation of principal-agent, master-servant, parent-child, teacher-child. Because under these relationships there is not a moral but an actual or legal obligation, responsibility and an act of omission under these relations can be held liable for any loss or damage.

So it is well justified to reduce or remove liabilities for the act of omissions under the pure omissions rule, but there may be some claims for the factors attached to every case. Thus it all depends upon the facts and circumstances of a case, but according to the pure omissions rule there stands no legal obligations and thus no liabilities.