Revision Hub / Module 1 · The Negligence Chain

Omissions & Third-Party Liability

Lecture L4 Compulsory in Part I Reading: Horsey & Rackley ch 4; Nolan & Oliphant ch 4

Snapshot

The default rule is that there is no liability in negligence for pure omissions — D is generally not under a duty to confer a benefit on C, to rescue, warn, or volunteer information. The pivotal clarification in Robinson v Chief Constable of West Yorkshire [2018] UKSC 4 is that this applies only to true omissions: where D has positively done something that makes C worse off, that is an act, and ordinary Donoghue principles apply. Genuine-omission liability is confined to four categories: assumption of responsibility, special relationship of control, creation/control of a danger source, and (very narrowly) statutory powers.

1. Why distinguish acts from omissions?

Lord Hoffmann's speech in Stovin v Wise [1996] AC 923 supplies the canonical justification, clustered around four ideas:

Autonomy and intrusiveness. A duty not to harm restricts only wrongful liberty; a duty to act conscripts D's body and resources — "a more substantial intrusion on individual liberty than restrictions on the way one performs an activity one has chosen to engage in" (Hoffmann).
The "why pick on me?" problem. If C is drowning and a hundred bystanders fail to rescue, the law must choose arbitrarily which to sue. Causal indeterminacy means unfair allocation.
Moral crowding-out / deterring rescue. Legal duties on Good Samaritans chill spontaneous rescue: if intervention risks liability, walk past.
Economic considerations. Affirmative duties on public bodies force spending the legislature has not authorised, raising distributive-justice questions ill-suited to the courts.

The "drowning child" hypothetical illustrates the split. If D pushes a child into a pond, D is liable: D created the risk. If D walks past a child already drowning, D is — absent special facts — not liable. Tort polices wrongdoing, not omission to do good.

2. The four classic categories of omission liability

Where one of the recognised categories applies, an affirmative duty can arise. Lord Goff's speech in Smith v Littlewoods identifies the framework, re-confirmed in Mitchell and Robinson.

(a) Assumption of responsibility

The most flexible category. D may, expressly or by conduct, indicate that C can rely on D to safeguard C's interests with reasonable care; if C reasonably relies, D is bound. Rooted in Hedley Byrne v Heller [1964] AC 465 and extended into personal-injury contexts.

Barrett v Ministry of Defence [1995] 1 WLR 1217 (CA)

Facts: A naval airman drank himself unconscious at a remote base; superiors put him to bed and left him. He choked to death on his own vomit.
Holding: No duty to prevent him drinking (his own choice), but once the officers undertook to look after him, they assumed responsibility and owed a duty of reasonable care. Liability (subject to two-thirds contributory negligence).
Why it matters: Bright-line rule: the moment D undertakes care of a vulnerable C, omission liability attaches.

Kent v Griffiths [2001] QB 36 (CA)

Facts: Ambulance called for an asthma attack; control confirmed it was coming but it took 38 minutes. Claimant suffered respiratory arrest and miscarriage.
Holding: Once the ambulance service accepted the call and confirmed attendance, it assumed responsibility to that named patient. Duty breached by inexcusable delay.
Why it matters: Distinguishes ambulances (specific patient, accepted call) from fire (generalised public response — see Capital & Counties).

Spring v Guardian Assurance plc [1995] 2 AC 296 (HL)

Facts: A former employer's damaging reference effectively ended an insurance agent's career.
Holding: An employer providing a reference assumes responsibility to the subject to compile it with reasonable care, and is liable in negligence for inaccurate references causing economic loss.
Why it matters: Extends assumption of responsibility into protection of economic interests with reliance.

(b) Special relationship of control

Where D exercises control over C, or over a third party T whose escape foreseeably endangers others, an affirmative duty may arise.

Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360 (HL)

Facts: A prisoner of known suicide risk hanged himself in a police cell from a hatch officers had failed to close.
Holding: Police had assumed responsibility for a known-suicide-risk detainee and were in control. Duty owed; volenti did not apply because the very risk against which they had a duty was the prisoner's own act. Damages reduced 50% for contributory negligence.
Why it matters: Control + assumption of responsibility combined; suicide is precisely the harm the duty targets.

Carmarthenshire CC v Lewis [1955] AC 549 (HL)

Facts: A teacher left a four-year-old briefly; the child wandered through an unlocked gate onto a busy road. A lorry driver swerved, hit a pole and was killed.
Holding: The school had control of the child and failed to take reasonable care to prevent foreseeable harm to road users. Duty owed to the driver's widow.
Why it matters: Control of a person posing foreseeable risk to others triggers an affirmative duty. Compare Dorset Yacht Co v Home Office [1970] AC 1004.

(c) Creation or control of a source of danger

If D has created — or knowingly accepted occupation of — a source of danger that may injure C, D owes a duty to take reasonable steps to abate it or prevent its triggering.

Goldman v Hargrave [1967] 1 AC 645 (PC)

Facts: Lightning struck a redgum tree on D's land. D felled it but failed to dampen it; fire spread to a neighbour's land.
Holding: An occupier aware of a natural hazard owes a measured duty to neighbours to take such steps as are reasonable in his circumstances to abate it.
Why it matters: Duty calibrated to D's actual resources. Approved in Leakey v National Trust [1980] QB 485.

Haynes v Harwood [1935] 1 KB 146 (CA)

Facts: Servant left a horse-drawn van unattended in a busy street; horses bolted when a child threw a stone; a policeman was injured stopping them.
Holding: D had created a foreseeable source of danger and was liable; rescuer recovery affirmed, volenti rejected.
Why it matters: Active danger-creation in a public place — the paradigm.

Topp v London Country Bus (South West) Ltd [1993] 1 WLR 976 (CA)

Facts: Bus left at a layby, keys in ignition, doors unlocked. A thief drove it off and killed a cyclist.
Holding: No duty: leaving the bus did not itself create the danger; the thief's intervention was the operative cause.
Why it matters: Counterpoint to Haynes: "providing an occasion" for third-party wrongdoing is not creating a danger.

(d) Statutory powers

The mere existence of a statutory power — as distinct from a duty — does not generate a common-law duty to exercise it. East Suffolk Rivers Catchment Board v Kent [1941] AC 74 held a board that exercised its flood-prevention power inefficiently was not liable for finishing slowly: it had a power, not a duty, and had made the claimant no worse off.

Stovin v Wise [1996] AC 923 (HL)

Facts: A junction obscured by a bank of earth had a known accident record. The highway authority had asked the adjoining landowner to remove it but did not follow up. The claimant motorcyclist was injured in a collision there.
Holding (Lord Hoffmann, 3-2): No common-law duty to exercise the statutory power. Public-law irrationality plus exceptional grounds for compensation would be needed, and were absent. Foreseeable harm from non-exercise was not enough.
Why it matters: The locus classicus for the autonomy/economic rationale for the no-omissions rule; foundation of Gorringe.

Gorringe v Calderdale MBC [2004] UKHL 15

Facts: Claimant crested a blind summit too fast and crashed; argued the authority should have painted a "SLOW" warning under its s 39 RTA 1988 power.
Holding: No duty. A statutory target duty does not, without more, generate a private-law duty to road users.
Why it matters: High-water mark: after Gorringe, statutory-power omissions are nearly unactionable absent assumption of responsibility or positive negligent conduct.

Capital & Counties plc v Hampshire CC [1997] QB 1004 illustrates the act/omission boundary. A fire brigade owes no duty merely to attend or fight a fire competently — that would be a duty to confer a benefit. But where the brigade positively turned off a sprinkler system containing the fire, it made the claimant worse off; that was a positive act, and ordinary negligence applied. The parallel London Fire Brigade appeal — mere failure to inspect — attracted no liability.

3. Third-party liability: D's duty to prevent T harming C

The starting position, hardened by Smith v Littlewoods, is that D does not generally owe a duty to prevent T's deliberate wrongdoing.

Smith v Littlewoods Organisation Ltd [1987] AC 241 (HL)

Facts: D bought a disused cinema for demolition. Vandals broke in, started fires, damaged neighbouring property. D did not know of prior break-ins.
Holding: No duty: D neither knew nor ought to have known of the specific risk and had not assumed responsibility. Lord Goff's four exceptional categories: (i) special relationship between D and C (assumption of responsibility); (ii) special relationship of control between D and T; (iii) D negligently creates a source of danger that may be sparked by T; (iv) D knows or has means of knowing that T has created a danger on D's property and fails to abate it.
Why it matters: The four-fold framework still used today; Lord Goff stressed the categories are exceptions to a default no-duty rule.

Mitchell v Glasgow CC [2009] UKHL 11

Facts: Mitchell, a council tenant, had complained for years about his violent neighbour Drummond. The Council summoned Drummond to a meeting threatening eviction; Drummond returned home enraged and beat Mitchell to death.
Holding: No duty to warn. Lord Hope: a duty to warn of a third party's criminal act arises only where D has, by words or conduct, assumed responsibility for the person at risk. Foreseeability is not enough.
Why it matters: High proximity bar where the immediate cause is deliberate third-party wrongdoing.

4. The post-Robinson reframing: harming vs failing to confer a benefit

Robinson v Chief Constable of West Yorkshire [2018] UKSC 4, [2018] AC 736

Facts: Officers tackling a suspected dealer in a busy street fell against an elderly passer-by, Mrs Robinson, injuring her.
Holding: Duty owed. Not an omissions case: officers positively did something which injured C. Lord Reed: Caparo does not require a free-standing fairness inquiry in every case; in established categories, ordinary Donoghue principles apply.
Significance: Lord Reed: "the law does not normally impose a positive duty … to protect others (the omissions principle)" — but this applies only where D has not themselves caused the harm.

Exam tip — the post-Robinson reframing. Before reaching for the Smith v Littlewoods exceptions, ask: has D made C worse off, or merely failed to make C better off? "Making things worse" (positive act causing harm) is covered by ordinary negligence — no exception needed. "Failing to make things better" (pure omission) attracts the default no-duty rule and demands one of the four exceptions. Misclassifying wastes pages and loses marks.

Michael v Chief Constable of South Wales [2015] UKSC 2 is the cleanest illustration of "failing to confer a benefit". The deceased's 999 call was downgraded; she was murdered before officers arrived. The Supreme Court (5-2) held no duty: the call handler made no specific promise as to response time, no assumption of responsibility was made out, and the immediate cause was a third party's deliberate crime. The police had not made Ms Michael worse off; at most they failed to rescue her. Michael was reaffirmed in Robinson.

5. Application framework

Classify the conduct. Has D positively done something to C, or merely failed to act for C's benefit? Robinson: positive acts fall outside the omissions rule entirely. If genuinely an omission, proceed.
Identify the immediate cause. Was harm caused by D's omission, or by a third party T (or C's own act)? Third-party intervention raises the proximity bar (Mitchell).
Walk the four exceptions. (a) Assumption of responsibility with reliance (Barrett, Kent v Griffiths, Spring); (b) control over C or T (Reeves, Carmarthenshire CC); (c) creation/control of a danger source (Goldman, Haynes; cf Topp); (d) statutory powers — almost never enough alone after Stovin/Gorringe.
Assess scope. The duty is calibrated: Goldman's is "measured" against D's resources; assumption-of-responsibility duties are limited to what was undertaken (a key point in Michael).
Run the rest of the negligence equation. Breach, causation (would proper conduct have averted the harm?), recognised damage, defences. Omissions cases very often turn on causation.

6. Common pitfalls

Treating every police-conduct case as an omissions case. After Robinson, that is wrong. Positive injuries by police (botched arrest, dangerous driving, excessive force) are positive acts; the omissions framework is reserved for failure-to-protect claims of the Michael type.

Conflating "creation of danger" with "providing an occasion for danger". Mitchell warns against this; Topp illustrates it. Articulate the line before applying it.

Citing Caparo as a free-standing fairness override. Robinson rejects this: in established categories, ordinary Donoghue principles apply. Apply the four exceptions on their own terms.

Forgetting that statutory powers differ from statutory duties. After Stovin and Gorringe, mere non-exercise of a power generates no private-law duty, however foreseeable the harm. Statutory duties owed to individuals are a separate analysis (see Topic 5).

7. Exam checklist

Classified the conduct: positive act (Robinson + ordinary negligence) or pure omission (default no-duty).
Flagged third-party deliberate intervention and the heightened proximity bar (Mitchell).
Walked the four Smith v Littlewoods categories, citing lead authority for any that fits.
For assumption of responsibility, identified both the undertaking and the reliance, plus its scope.
For statutory powers, applied Stovin/Gorringe and resisted converting public expectations into private duties.
Distinguished "making things worse" from "failing to make things better" (Michael, Robinson).
Considered "measured" scope (Goldman) where the danger is not of D's making.
Followed through to breach, causation, and defences.