‘THERE IS CURRENTLY NO PROVISION IN THE ENGLISH LAW OF TORT WHICH ALLOWS FOR LIABILITY FOR OMISSION. THE LAW SHOULD BE REFORMED TO IMPOSE A GENERAL DUTY ON INDIVIDUALS TO ASSIST THEIR FELLOW CITIZENS WHO ARE IN DIFFICULTY.’ CRITICALLY DISCUSS THIS STATEMENT.

Lujain Burhamah

One dispute regarding the exclusion of liability for omission, considers the extent to which an individual’s freedom to assist another should be violated for the sake of reducing general harm. In distinguishing the treatment of omissions from positive conduct, Lord Hoffman advocates for the exclusionary rule, “it is less of an invasion of an individual’s freedom for the law to require him to consider the safety of others in his actions than to impose upon him a duty to rescue or protect”[1]. Positive obligations to assist require active engagement in preventing harm, a heavier burden forced on individuals who may not want to bear more accountability than that of mere self-restraint from causing harm. Contrastingly, in determining for liability by similar differentiation, Lunney thinks it wrong to strictly associate ‘acts’ with ‘making things worse’ and ‘omissions’ with ‘failing to make things better’, but agrees that “liability for the latter results in significantly greater restrictions on liberty of action” by requiring “the defendant, who must already ensure that his activities do not expose others to unreasonable risks, to sacrifice his pursuit of those activities…in the interests of another”[2]. His flexible interpretation finds “that the distinction is one of degree, and that different duties of affirmative action restrict liberty of action to different extents”[3], entertaining the idea that, contrary to the exclusionary rule, liability should be imposed for omissions where the act needed to prevent the claimant from harm is a trivial burden. Consequently, duties to assist should be disregarded so not to impede freedom, but argument that liability should be determined by the ability to assist in response to a subjective burden on freedom seems logical.

 

Another controversial rationale for the exclusionary rule relates to Lord Hoffman’s ‘Why pick on me?’ argument, that it is unfair to hold an individual liable for failing to assist another where others have or would have also failed to do so[4]. “A duty to prevent harm to a person in distress may apply to a large and indeterminate class of people”[5] and deeming someone liable over another, despite the equal opportunity to assist, is arbitrarily immoral and opens a floodgate of liability. Weinreb supports this, stating a collective obligation of beneficence “would in the long run be an evil greater than the countenancing of individual instances of unfulfilled needs or wants”[6]. Holding someone liable for failing to assist another simply because they happened to be at the same location and time is an unfair game of chance. Ironically, Bender who also encourages morality, craves a “focus on interdependence and collective responsibility rather than individuality”, finding the ‘no duty to rescue’ rule “a consequence of a legal system devoid of care and responsiveness to the safety of others”[7]. This view finds that imposition of mutual liability protects the public as individuals are encouraged to assist somebody knowing that others must aid them or risk liability, and that with others’ help there is an increased chance of assisting the distressed successfully. Considering that collective responsibility for omissions may give rise to an unfair result but alternatively encourage assistance, a duty to assist others should not be imposed by mutual obligation until uncertainty is settled.

 

Contradiction in forcing altruism by imposing a duty to assist the distressed reinforces the complexity of holding individuals liable for omission. Lord Nicholls states that “compulsory altruism needs more justification than an obligation not to create dangers to others…an additional reason why it is fair and reasonable”[8], illustrating that one cannot be expected to act in the welfare of others selflessly. Similar to an economic activity bearing cost for negligence but award for proper regard, if the failure to assist an individual imposed liability then impractically, award for assisting an individual would be expected. Kortmann believes Lord Nicholls’ approach “not only fails to encourage altruistic behaviour, but in effect discourages it”, but agrees that it is needed “wherever it is not oppressive, impracticable, or pointless”[9]. Regard for practicality when seeking morality is significant. Subsequently, duty for the voluntarily conferral of benefit is artificial and causes impractical expectation.

 

Having established that the law generally excludes liability for omission, exceptions to this principle exist. One circumstance giving rise to liability for omission lies in the significant amount of control a defendant has over the claimant, as portrayed in Reeves v Commissioner of Police for the Metropolis[10] where the duty to protect prisoners existed by virtue of the considerable authority police operated over them that permited insight into suicide risks. However, police liability for such a duty of control has generally been absent as illustrated by Orange v Chief Constable of West Yorkshire Police[11] where the police were denied liability for failing to confiscate the belt a prisoner utilized by hanging himself with, because their duty was limited to the assessment of suicide risk, not acting upon a suicide risk that had not been posed. Although both cases share similar facts, the conflicting conclusions raise doubts on courts’ reluctance to deem public authorities liabile; Nolan expresses that “judicial  reasoning in duty of care cases is dominated by arguments of public policy… bound to distract judges from issues of principle” whilst abandoning “consistency and coherence”[12]. Differing outcomes of public authorites’ liability for omission unnaturally result from courts’ unwillingness to burden authorities with potentially extensive types of liability. The Law Commission proposes reform, agreeing that “the law of negligence is marked by inconsistent and complicated development”, inviting concern for courts who “decline jurisdiction to consider… technical limits of their institutional competence”, so that a “potent control mechanism for limiting claims against public bodies”[13] compensates for potentially expansive categories of liability….

 

Written by Lujain Burhamah

 

[1] Ibid. [943]

[2] Mark Lunney, Donal Nolan, and Ken Oliphant, Tort Law Text and Materials (6th edn, OUP 2017) 472

[3] Ibid.

[4] Stovin v Wise, [1996] 3 WLR 389

[5] Ibid.

[6] Weinreb, E, ‘The Case for a Duty to Rescue’ (1981) 90 YLJ 247

[7] Bender, L, ‘A Feminist’s  Primer on Feminist Theory and Tort’ (1988) 38 J Leg Ed 3

[8] (n 4) [929]

[9] Jeroen Kortmann, Altruism in Private Law: Liability for Nonfeasance and Negotiorum Gestio (OUP 2005) 76

[10] Reeves v Commissioner of Police for the Metropolis, [2000] 1 AC 360

[11] Orange v Chief Constable of West Yorkshire Police, [2001] 3 WLR 736

[12] Donal, N, ‘The Liability of Public Authorities for Failing to Confer Benefits’ (2011) 127 LQR 260

[13] Law Commission, Administrative Redress: Public Bodies and the Citizen (Law Com No 187, 2008) 4.39

The Brunel Lawyer

©2020 The Brunel Lawyer