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Published online by Cambridge University Press: 15 November 2019
In this article I address the question of whether the omissions principle – the principle that the common law does not impose liability for omissions – applies with the same force in negligence cases involving public authority defendants as in cases involving private defendants. My argument is that the answer depends upon the answer to a prior question: can a duty of care be based upon the public law powers and duties of a public authority? In making my argument, I refute the views both of those who insist that a claim in negligence against a public authority can be rejected purely because it relates to an omission not falling within one of the standard exceptions to the omissions principle and of those who insist that such a claim can succeed while at the same denying that a duty of care can be based on a public authority's public law powers and duties.
1 Michael v Chief Constable of South Wales [2015] UKSC 2, [2015] 2 A.C. 1732.
2 See especially [97]–[102].
3 S. Tofaris and S. Steele “Negligence Liability for Omissions and the Police” [2016] C.L.J. 128. Like a number of other writers on the subject, Tofaris and Steel define the omissions principle so as to include a list of standard exceptions. Their definition, which was approved by Lord Kerr and Lady Hale in Michael is as follows: “[i]n the tort of negligence, a person A is not under a duty to take care to prevent harm occurring to person B through a source of danger not created by A unless (i) A has assumed responsibility to protect B from that danger, (ii) A has done something that prevents another from protecting B from that danger, (iii) A has a special level of control over that source of danger, or (iv) A's status created an obligation to protect B from that danger.” In this article, because I wish to emphasise the detachability of the exceptions from the basic prohibition, I use the expression “omissions principle” to refer only to the latter.
4 Stovin v Wise [1996] AC 923 (HL).
5 Nolan, D., “The Liability of Public Authorities for Failing to Confer Benefits” (2011) 127 L.Q.R. 260Google Scholar.
6 In the most recent edition of their tort textbook, Nolan and Oliphant make references to the Tofaris and Steel and to the Nolan article referred to above and ask roughly the question of the present article: “should the omissions principle apply with the same force in cases involving public authority defendants as in cases involving private defendants?” See Lunney, M., Nolan, D. and Oliphant, K. Tort Law: Text and Materials, 6th ed. (Oxford 2017), 546–47CrossRefGoogle Scholar.
7 Wilberg, H., “In Defence of the Omissions Rule in Public Authority Negligence Claims” (2011) 19 T.L.J. 159Google Scholar.
8 See e.g. Smith, J. and Burns, P. “Donoghue v Stevenson – The Not So Golden Anniversary” (1983) 46 M.L.R. 147CrossRefGoogle Scholar, at 156; Sopinka, J., “The Liability of Public Authorities: Drawing the Line” (1993) 1 Tort Law Rev. 123, at 148–49Google Scholar. One set of views that I shall not consider in this article are those of rights theorists such as Robert Stevens and Allan Beever. These authors argue that, beyond the commonly accepted list of exceptions to the omission principle, there is no liability for omissions because we do not have rights that others act so as to assist us. To rebut their arguments would require more prolonged treatment than I can give them here but in a nutshell, they are quite unable to supply arguments to support their view of which rights we have. For Stevens and Beever's views on omissions, see Stevens, R., Torts and Rights (Oxford 2007), 9CrossRefGoogle Scholar; Beever, A., Rediscovering the Law of Negligence (Hart, 2007), ch. 9Google Scholar. For critique of the rights theorists attempts to justify their view of the rights we have, see Cornford, T., “Public Authority Liability and the Heteronomy of Tort Law” (2013) 21 T.L.J. 16, at 22–30Google Scholar.
9 Gorringe v Calderdale Borough Council [2004] UKHL 15, [2004] 1 W.L.R. 1057.
10 Honoré, T., “Are Omissions Less Culpable?” in Cane, P. and Stapleton, J. (eds.), Essays for Patrick Atiyah (Oxford 1991), 31ffGoogle Scholar.
11 Just to be clear, I shall not argue that courts should impose on public authorities duties continuous with their public law powers and duties. I do in fact think that they should but in this article, for reasons of space, I confine myself to the argument set out in the text above.
12 Gorringe [2004] UKHL 15, [2004] 1 W.L.R. 1057, at [32].
13 Ibid., at para. [71].
14 Stovin [1996] AC 923 (HL). In this sentence I talk simply of a public authority's powers and duties. In the two passages quoted, Lord Hoffmann talks of “public law” duties and Lord Scott of “statutory” duties. I address the question of the relationship between public and statutory powers and duties below.
15 In postulating the existence of such a duty one would also take into account powers and duties in other relevant statutes such as the duty on any highway authority that is a local authority in s. 39 of the Road Traffic Act 1988 to carry out studies into road accidents in its area and to take such measures as appear to it to be appropriate to prevent them.
16 Stovin [1996] AC 923 (HL), 953 D–E.
17 Ibid., at p. 936.
18 Ibid., at p. 936 B.
19 Ibid., at p. 937.
20 Ibid., at pp. 939–41.
21 Kent v Griffiths [2001] Q.B. 36.
22 Larner v Solihull Metropolitan Borough Council [2001] R.T.R .32.
23 Gorringe v Calderdale MBC [2002] EWCA Civ 595, [2002] R.T.R. 27.
24 Anns v Merton Borough Council [1978] A.C. 728.
25 Stovin [1996] AC 923 (HL), 931 F.
26 Ibid., at p. 933 F–G. Cf. Lord Bingham in his essay “The Uses of Tort Law” (2010) 1 J.E.T.L. 3: “if a member of the public whom a public service exists to serve suffers significant injury or loss through the culpable fault or reprehensible failure of that service to act as it should, is it not consistent with ethical and, perhaps, democratic principle that the many, responsible for funding the service, should bear the cost of compensating the victim?”
27 As they did most notably in Hill v Chief Constable of West Yorkshire [1989] A.C. 53 and X (Minors) v Bedforshire County Council [1995] A.C. 633.
28 I have set out in much greater detail an approach and justification like that describe in the text in my book, Towards a Public Law of Tort (Aldershot 2008).
29 Honoré, “Are Omissions Less Culpable?”, p. 37.
30 To borrow an example from Feinberg, Joel, The Moral Limits of the Criminal Law: Volume 1, Harm to Others (Oxford 1984), 135Google Scholar.
31 In seeking a basic non-normative concept as a building block for discussion of the omissions principle, I eschew the distinction between harming and failing to confer a benefit. Some writers who insist on the absoluteness of the omissions principle promote this distinction as a straightforward factual one use of which makes it possible to avoid the difficulties associated with the act/omission distinction: see for example Nolan, “The Liability of Public Authorities”, p. 260; M. Bowman and S. Bailey, “Negligence in the Realms of Public Law – a Positive Obligation to Rescue?” [1984] P.L. 277, at 283. On this view, in order to determine whether a person's blameworthy behaviour is an act or an omission, we need only ask whether she has worsened or merely failed to improve the victim's position. The objection to this view is that we cannot divorce the question of whether someone is improving or worsening another's situation from the question of what that other person is entitled to expect. If A gives B something she is not entitled to expect, we may say that A is conferring a benefit on B or improving B's situation. If A gives B something that she is entitled to expect, it would not be natural to say A is improving B's situation. A will be simply maintaining B's current condition. Everything turns on what B is entitled to expect and determining this involves all the difficulties that are involved in determining whether B's inaction amounts to an omission. The harm/failure to confer a benefit distinction is often used, moreover, in a way that is misleading. On the one hand, to speak of an intervention to assist someone as “conferring a benefit” tends to suggest that the intervention is something to which the recipient of the assistance is not entitled. On the other hand, users of the notion are in the habit of describing any omission not falling within one of the traditional exceptions to the omissions principle as a failure to confer a benefit. Bailey and Bowman characterise the defendant public authority's failure in Anns v Merton Borough Council in this way, for example, and Nolan does the same in relation to Gorringe. Users of the harm/failure to confer a benefit distinction thus skew discussion in favour of the view that omissions not falling within one of the traditional categories of exception to the omissions rule cannot give rise to liability while at the same time pretending that the distinction has a clear factual basis when it does not.
32 Stovin [1996] AC 923 (HL).
33 His Lordship added a third, economic justification. This was that those carrying out harm-causing activities were required to internalise the costs they imposed on others and that finding liability was a way of making them do so. This made sense, his lordship said, where a defendant positively imposed a cost by harmful action but not where, by failing to act, she failed to confer a benefit. It is doubtful whether English tort law can be explained in economic terms (although see Posner, R. and Landes, W., The Economic Structure of Tort Law (Cambridge, MA 1987)Google Scholar). But putting this to one side, the dominant school of economic analysis of law does not insist that each activity internalise the costs that, on the basis of traditional legal notions, we would characterise a defendant as imposing on others. Instead, it requires that the necessary precautions or change in behaviour be undertaken by whomever can do so most cheaply. So, for example, if fumes from a factory were damaging the health of neighbouring householders and this damage could be avoided most cheaply by the householders staying indoors and keeping their windows closed, the economic approach would forbid a finding that the factory was liable. If the person who should take steps to avoid accidents or other social harms is the “cheapest cost avoider”, it is hard to see why this person should not be someone who could positively intervene so as to prevent the harm as well as someone who could avoid the harm by refraining from action. Of course, to require each person to assist another where her doing so was cheaper than requiring the creator of the harm to take greater care or the victim to bear the loss might create an unmanageable burden and so there would have to be rules to decide under what circumstances a given person should be under an affirmative duty. This just takes us back to the Feinberg argument described in the text above. For basic exposition of the economic approach see e.g. Posner, R.A., Economic Analysis of Law, 9th ed. (New York 2014)Google Scholar, chs. 1, 6; Calabresi, G., The Cost of Accidents (New Haven 1970)Google Scholar; Cane, P., Atiyah's Accidents, Compensation and the Law, 8th ed. (Cambridge 2013), 435–55Google Scholar. For a discussion of the application of the economic approach to the problem of omissions, see Kortmann, J., Altruism in Private Law: Liability for Nonfeasance and Negotiorum Gestio (Oxford 2004), 18–23Google Scholar.
34 Honoré, “Are Omissions Less Culpable?”, pp. 31–32.
35 Kortmann, Altruism in Private Law, pp. 19–20.
36 Feinberg, The Moral Limits, pp. 169–71.
37 Honoré, “Are Omissions Less Culpable?”, p. 33.
38 Honoré’s reference to “past dealings” might be taken to indicate that distinct duties are only those that arise as a result of some form of voluntary undertaking but it is clear from the rest of his essay that he means the expression to refer to the range of generally recognised exceptions to the omissions principle.
39 Honoré, “Are Omissions Less Culpable?”, p. 33.
40 Ibid., at pp. 48–49.
41 Ibid., at p. 33.
42 As for example in Peter Singer's claim that we should all help people in poorer countries up to the point at which the loss to us outweighs the gain to them: see P. Singer, “Famine, Affluence and Morality” (1972) 1 Phil.& Pub.Aff. 229.
43 It is not my intention, however, to argue that there is a case for a duty of easy rescue. The argument I wish to make in this article does not depend on showing that there is. My argument is, rather, that in order to support a duty of easy rescue it is not necessary to undermine the omissions principle but merely to make an exception to it; and that, in the say same way, the best argument for public authority liability for omissions falling outside the established exceptions involves making another exception to the principle rather than undermining it.
44 Barrett v Enfield LBC [2001] 2 A.C. 550 (HL) and Phelps v Hillingdon LBC [2001] 2 A.C. 619 (HL) are examples of the kind of case in which the defendant authority can in principle be held liable for an omission since the omission in question falls within one of the standard exceptions; and in which, at the same time, the duty of care that the authority would be thereby held to have breached is entirely consistent with the authority's public law obligations.
45 Anns [1978] A.C. 728.
46 See note 27 above.
47 Contrary to the criticism made by Bailey and Bowman of the reasoning in the Anns case in “Negligence in the Realms of Public Law”.
48 The criteria identified by Wilberg include a set of exceptions to the omissions principle roughly equivalent to the standard set and she counts amongst these the possession by the defendant of special powers of control over the risk giving rise to the harm to the claimant. She considers the argument that the main justifications advanced for the omissions principle (the “liberty” and “why pick on me” arguments) do not apply to public authorities and replies that this objection is overcome by the consideration that, in appropriate cases, public authorities can be made liable for omissions that fall within her set of exceptions, especially the control exception. As noted in the text, however, it is not possible to see why on this view there is sometimes an argument for making a public authority liable when the same argument would not be made in relation to an analogously situated private person. Why, for example, might we argue that the police in Michael should have been liable when we might hesitate to argue the same in relation to a neighbour who would have been in as good a position to assist but did not do so? See further the arguments in Section VI below.
49 Stapleton, J., “Duty of Care: Peripheral Parties and Alternative Opportunities for Deterrence” (1995) 111 L.Q.R. 301Google Scholar.
50 Wilberg, “In Defence”.
51 Feinberg, The Moral Limits, p. 180; Hart, H.L.A. and Honoré, T., Causation in the Law, 2nd ed. (Oxford 1985), 30CrossRefGoogle Scholar, note 4 and accompanying text, 38, 140.
52 See e.g. Hart and Honoré, Causation in the Law, pp. 2, 5, 16, 30–31, 37–38, 50, 59, 62, 81, 127–28, 138–41, 236; Feinberg, The Moral Limits, pp. 165–85; Stapleton, J., “Choosing What We Mean by Causation in the Law” (2008) 73 Mo.L.Rev. 433, at 435–37Google Scholar; Stapleton, J., “Unnecessary Causes” (2013) 129 L.Q.R. 39Google Scholar, at 40; Stapleton, J., “An ‘Extended But-for’ Test for the Causal Relation in the Law of Obligations” (2015) 35 O.J.L.S. 697Google Scholar, at 699, 705, 709. Stapleton convincingly refutes Michael Moore's claim (made e.g. in “Causation and Responsibility” (1999) 16 Soc.Phil.& Pol'y 1) that omissions cannot be causes: see “Choosing What We Mean by Causation”, p. 467.
53 Stapleton, “Duty of Care”.
54 Nolan, “The Liability of Public Authorities”, p. 285.
55 Ibid., at p. 284.
56 Ibid., at p. 285.
57 Honoré, “Are Omissions Less Culpable?”, pp. 49–50.
58 Ibid., at p. 35.
59 One person is injured by the negligent driving of a motorist, another in a train crash caused by the negligent failure to maintain the track; a haemophiliac loses blood on one occasion because someone carelessly cuts her and on another because she cuts herself and the ambulance she calls fail to arrive; one landowner suffers the burning of his crops because his neighbour carelessly allows fire to spread from his land, another suffers the burning of his crops because his neighbour flicks a cigarette on to them while mending the fence between the two properties; and so on.
60 Honoré, “Are Omissions Less Culpable?”, p. 41.
61 Note in this connection, a passage from Honoré’s earlier work with Hart, Causation in the Law, p. 37: “[t]hough what is treated as normal represents in many ways our practical interests and our attitude to nature, it would be wrong to identify as the normal and so always as part of the “mere conditions” of events the course of nature unaffected by human intervention. This is an over-simplification, because what is taken as normal for the purpose of the distinction between cause and mere conditions is very often an artefact of human habit, custom or condition. This is so because men have discovered that nature is not only sometimes harmful if we intervene, but is also sometimes harmful unless we intervene, and have developed customary techniques, procedures and routines to counteract such harm. These have become second ‘nature’ and so a second ‘norm’. The effect of drought is regularly counteracted by governmental precautions in conserving water or food; disease is neutralised by inoculation; rain by the use of umbrellas. When such man-made normal conditions are established, deviations from them will be regarded as exceptional and so rank as the cause of harm. It is obvious that in such cases, what is selected as the cause from the total set of conditions will often be an omission which coincides with what is reprehensible by established standards of behaviour.” The authors’ primary concern in this passage is to show that omissions can be causes. But the passage also tends to support the view that, generally speaking, harm-causing omissions that take place in the context of distinct duties are no less serious than harm-causing acts.
62 Wilberg conceives of the principle in the same way: see Wilberg, “In Defence”.
63 Tofaris and Steel, “Negligence Liability”, pp. 129, 142, 145, 151.
64 See note 3 above.
65 Tofaris and Steel, “Negligence Liability”, pp. 142–45.
66 Ibid., at p. 145.
67 Ibid., at p. 140.
68 Nolan, D., “Negligence and Human Rights Law: The Case for Separate Development” (2013) 76 M.L.R. 286CrossRefGoogle Scholar, at 317.
69 Cf. Allison, J., A Continental Distinction in the Common Law (Oxford 2000)CrossRefGoogle Scholar; Oliver, D., Common Values and the Public-Private Divide (London 1999)Google Scholar; Varuhas, J., Damages and Human Rights (Oxford 2016)Google Scholar, Part 2.
70 As to which, see generally De Smith's Judicial Review, 8th ed. (London 2018), 3-123–3-132. See also Clayton, R. and Tomlinson, H., Civil Actions against the Police, 3rd ed. (London 2004), ch. 4Google Scholar.
71 The question of whether a duty of care can be based directly on a public authority's public law powers and duties is of course an aspect of a still larger question: should there be a specialised form of administrative liability in English law. In principle, if the answer to this question is affirmative, then the change to the current law might be brought about by creating an avenue of redress entirely distinct from the existing law of tort. Most proposals for creating some form of administrative liability made since the Anns case, however, have envisaged that at least part of the task would be fulfilled by developing the law of negligence: see e.g. JUSTICE-All Souls Review, Administrative Justice: Some Necessary Reforms (Oxford 1988), ch. 11; Law Commission Consultation Paper No. 187, Administrative Redress: Public Bodies and the Citizen; Cornford, Towards a Public Law of Tort.