Liability for Omissions
Liability for Omissions
The law has historically been reluctant to impose a general liability for omissions as opposed to positive acts. This means that there is no general duty of care in tort to act in order to prevent harm occurring to another. In Smith v Littlewoods Organisation, Lord Goff stated clearly that “the common law does not impose liability for what are called pure omissions”. Similarly, in Yuen Kun Yeu v A-G of Hong Kong, Lord Keith stated that people can ignore their moral responsibilities to prevent harm occurring to another, even when it is easily within their power to do so. He added that it would be unthinkable for there to be “liability in negligence on the part of one who sees another about to walk over a cliff with his head in the air and forbears to shout a warning”. Again in Home office v Dorset Yacht Co, Lord Diplock stated that such omissions might attract moral censure, but they attract no liability in English law.
The reasons behind this approach were discussed by Lord Hoffmann in Stovin v Wise. He put forward three reasons for not imposing a duty for a failure to act:
- Political. A legal requirement on a person to act in order to prevent harm to another involves an invasion into an individual’s freedom and autonomy because it requires them to take positive steps. This is based on the political theory that should be concerned purely with their own self-advancement and not subject to legal liability for failing to intervene for the benefit of others.
- Moral. This raises the problem of identifying who should be liable for the damage, the person who caused it, or the person who failed to act to prevent it? It will be morally questionable to impose liability on a person who did not act to prevent the harm in such circumstances. Moreover, there may be a large and indeterminate class of other persons who may also have been in a position to prevent the harm. Why should one person be held liable rather than another?
- Economic.
The law has historically been reluctant to impose a general liability for omissions as opposed to positive acts. This means that there is no general duty of care in tort to act in order to prevent harm occurring to another. In Smith v Littlewoods Organisation, Lord Goff stated clearly that “the common law does not impose liability for what are called pure omissions”. Similarly, in Yuen Kun Yeu v A-G of Hong Kong, Lord Keith stated that people can ignore their moral responsibilities to prevent harm occurring to another, even when it is easily within their power to do so. He added that it would be unthinkable for there to be “liability in negligence on the part of one who sees another about to walk over a cliff with his head in the air and forbears to shout a warning”. Again in Home office v Dorset Yacht Co, Lord Diplock stated that such omissions might attract moral censure, but they attract no liability in English law.
The reasons behind this approach were discussed by Lord Hoffmann in Stovin v Wise. He put forward three reasons for not imposing a duty for a failure to act:
- Political. A legal requirement on a person to act in order to prevent harm to another involves an invasion into an individual’s freedom and autonomy because it requires them to take positive steps. This is based on the political theory that should be concerned purely with their own self-advancement and not subject to legal liability for failing to intervene for the benefit of others.
- Moral. This raises the problem of identifying who should be liable for the damage, the person who caused it, or the person who failed to act to prevent it? It will be morally questionable to impose liability on a person who did not act to prevent the harm in such circumstances. Moreover, there may be a large and indeterminate class of other persons who may also have been in a position to prevent the harm. Why should one person be held liable rather than another?
- Economic.