1.

Acts/Omissions Third Parties

Although Lord Atkin in Donoghue v Stevenson spoke of DOC arising in respect of
acts or omissions, later interpretations suggest that he only meant omissions in
situations where a pre-tort relationship gives rise to a positive obligation to act
A relationship between the parties may create a positive duty to act
The tort of negligence contains an exclusionary rule which operates to prevent a
duty being owed in respect of omissions
Common law does not impose liability for pure omissions (Smith v
Littlewoods)
Osterlind v Hill
C rented a canoe from D and drowned when the canoe
overturned
D was a strong swimmer but merely watched C drown
No DOC was found despite the fact that he rented the canoe
Reasons for excluding liability for pure omissions
Steven v Wise
1. Political

2. Moral

Less invasion of an individuals freedom for the law to require him to

consider the safety of others in his actions the to impose upon him a
duty to protect or rescue
A duty to prevent harm may apply to a large and indeterminate class of
people
Why should one be held liable rather than another

Exception to exclusionary rule

1. Control
2. Assumption of Responsibility
3. Creation (or adoption of risks)

These exceptions increase the degree of proximity between C and D, such that
foreseeability of harm becomes greater
Justifies Ds potential liability for not doing something they could or should
have done

Control
Situations in which D should owe a duty to C because they:
Exercise a high degree of control over them; or
Express responsibility for them

These exceptions extend to situations where D, because they exercise control over the
person harmed, owe them a positive duty to take steps to ensure they are not harmed by
themselves or by anyone else
Reeves v Commissioner of Police Metropolis

Facts:
Cs husband committed suicide while held in police custody
Wife (C) claimed that police had owed a duty of care not to physically
harm him by their actions
Held:
Ds duty extended to taking reasonable steps to assess the suicide risk
of all prisoners
Justified by degree of control exercised over prisoners and known
risk of suicide
Assumption of Responsibility
When D has assumed responsibility for C, it seems obvious that positive
obligations should arise
Most common types of assumed responsibility contract or employment
relationships; parent/child

Costello v CC Northumbria Police

Facts:
Female police constable attacked by prisoner
Police inspector who was in the vicinity did nothing to come to her aid
Held:
Ocers assume a responsibility to one another to watch each others
backs'
Where a polices omission might lead to avoidable harm suered by
another ocer, a positive duty to act would be imposed

Assumption of responsibility through ones actions

Barret v MOD
Facts:
Naval pilot collapsed after being drunk
Extreme drunkenness was commonplace on the naval base
Duty Ocer ordered him to be taken to his bed
No one stayed to watch over him choked on his vomit and died
Held:
Duty ocer did not owe DOC in relation to preventing excessive drinking
Duty was owed to Ocers failure to have someone stationed to watch the
drunken man while he slept
Responsibility had been assumed

Creating or adoption of risks

Where D creates a dangerous situation, a positive duty to try and deal with that
danger may be imposed
Public Bodies
Capital v Hampshire CC
Facts:
CC was vicariously liable for fire chief's decision to turn o a sprinkler
system, thereby allowing the fire to spread more quickly
Held:
A fire service, as a public body, will only owe a duty to a property owner
when it either
Created the danger in the first place; or
Where its positive actions upon responding made the situation worse
than it already was
A person may adopt a risk if he does not take steps to minimise the damage
Goldman v Hargrave
Facts
Tree caught fire after being struck by lightning
Landowner ensure that the tree was cut down but took no further precautions to
stop the fire from spreading

Held
Although he had not caused the fire, in deciding not tot take any further steps to
completely extinguish it, he had adopted the risk that it might spread
A duty of care was owed to adopted dangers existing on ones land when
that danger could spread to another

Liability for Acts of Third Parties

There is no general duty to prevent other people causing damage
When is there liability for the acts of third parties?
Four circumstances which suggests there is a duty of care in respect of actions by a third
party:
1. Special relationship between D and C
2. Special relationship between D and the third party, such as a relationship of control
or supervision
3. Where some creates a 'source of danger' that may be 'sparked' by a third party
4. Failure to abate known danger
Special Relationship between D and C
Where D and C have a special (pre-tort) relationship, a duty may arise in relation to the
activities of a third party
i.e. Relationship with sucient degree of proximity to justify the imposition of a duty
of care from one to another
Contract between the two parties -- Stansbie v Troman
Facts:
C employed D to decorate her premises and specifically requested the contractor
to lock up after himself
D failed to do this and was burgled
Held:
The contractual relationship between them was enough to create a sucient
degree of proximity for the imposition of duty of care on him
Because of the relationship between them, he had a duty to lock up the
premises when he left, in order to prevent a burglary by a third party
Implied or Expressed Undertaking by D

Swinney v CC Northumbria
COA held that Police owed DOC not to leak confidential information about C, a
police informant, because it increased the risk of her being harmed
Costello
A police ocer has a duty to assist another if they come under attack from a third
party in police custody

Direct Undertaking
Palmer v Tees Health Authority
Facts:

Held:

C alleged that D had been negligent in its assessment of a mentally ill patient
-- who killed her 4 year old daughter upon release from his secure unit
Killer expressed his sexual feelings towards children and had
threatened to murder and abduct a child
COA held that D did not owe a DOC to C as the necessary level of proximity
between them did not exist
The child was not identifiable as a potential victim

'Exceptionally serious' risks