Liability For Pure Omissions In The English Law Of Tort

In the English Law of Tort, liability can be found where an individual has refrained from acting in a situation where a pre-tort relationship gives rise to a positive obligation to act, causing the omission to be in breach of duty. However, where a pre-tort relationship does not exist, ‘common law does not impose liability for … pure omissions’. This is where no pre-tort relationship exists, and therefore no duty or liability arises resulting in no compensation for harm caused by the failure of someone to act. The role of morality and society in the general exclusion of liability for pure omissions is widely debated.

Omissions occur when there would have been some societal expectation that the individual may or should have acted. The greatest criticism of the lack of liability for pure omissions, is the failure to acknowledge social responsibility as there are situations where individuals should assist another that is relying on help. The argument for criminalising pure omissions in favour of social responsibility is one that reflects the concept of fairness and primarily considers the distributive justice system. Negligence interrupts the fair distribution of risk and precaution and unfair injuries are inflicted, as seen in Osterlind v Hill. In this case, the claimant rented a canoe from the defendant, and when the canoe capsized, the claimant made loud calls for assistance. Despite the defendant allegedly hearing these calls and being a strong swimmer with boats available for rescue, he refrained to help. Due to the absence of a duty to care, the defendant was not found liable for the omission. This case is a demonstration of an extreme social unjust, where the defendant’s attempt to help could have potentially prevented death. In Stovin v Wise, Lord Nicholls described those who do not help as “callous bystanders”, as the immoral refrain from any reasonable attempt to help is socially unjust. Furthermore, rescuers anxiety of potentially being held liable for making the situation worse reflects an incorrect understanding of the law, as the rescuers actions will be judged against those of a reasonable person rather than strictly judged on just the facts of the case. Liability would not be found for making a legally reasonable attempt at assisting an individual in peril and therefore an intervention could not be considered as breaching a duty not to make a situation worse.

To demonstrate the immoral position of common law, Wilson presents the juxtaposition between the liability for ‘shooting a child to prevent the agony of her burning to death in a flaming inferno one is powerless to prevent’ and the absence of liability for ‘failing to save a her from a similar fate by the simple mechanism of unlocking the door behind which she is trapped’. This argument raises the illegality of ending suffering which is most commonly seen in cases of assisted suicide and euthanasia, and compares it to resisting to help an individual where mere assistance would have prevented death. It is considered that the law should be reformed to create justice, and prevent a lack of liability that would arise in situations so immoral that its legality cannot be considered as reasonable, such as if a stranger choose to walk past a drowning baby. An effective legal enforcement of pure omissions can be seen in France, where it is a criminal offence not to try and assist someone in danger and the civil obligation when this does not occur. It is suggested that there are three simple duties on the basis of social responsibility: the duty to assist those in peril, the duty to take reasonable steps towards law enforcement, and the duty to ensure the health and welfare of one’s children. These duties are simple in nature, ensure a greater social responsibility to protect and assist individuals and impose a legal system that factors the moral standards that must be conducted in a fair society.

However, it must be acknowledged that the social responsibility view is harshly challenged as social responsibility is not considered as a ground for imposing liability. There are many implications to the criminalisation of pure omissions. In Stovin v Wise, Lord Hoffman presents an argument that can summarised by the question of “why pick on me?”. If the duty to prevent harm to others or render assistance is to be enforced as a duty, then this only creates complications, as for when a large class of people may be able to do something then what determines who shall be liable and why one individual may be liable rather than another. Furthermore, where there is an act then someone has acted but if there is an omission, everyone ,in a sense, has omitted and should be held liable. Therefore, it must be acknowledged that we omit to do everything in the world that is not done and therefore the extent of criminalising a pure omission comes with outstanding complications. It can therefore be suggested that the criminalisation of omissions would lead to inexhaustive list of crimes. It is simply much easier for the law to detail prohibited conduct as opposed to positive duties, therefore criminal law should remain concerned with preventing criminal acts and not encouraging acts that are morally acceptable.

Furthermore, Lord Hoffman suggests the economic difficulty in determining the allocation of accidental costs, as an efficient allocation of resources will require for an activity to bear its own costs. If the activity benefits from being able to impose some of its costs on other people then the market is distorted because the activity appears cheaper than it really is, and except in special cases, English law does not reward someone who voluntarily confers a benefit on another. Therefore, the mere fact that failure to assist a fellow citizen against external dangers may be morally wrongful, cannot be considered as enough to give rise to liability, and so there must be some special reason why an individual should have to put their hand in their pocket.

Lastly, controversial implications that the social responsibility view imposes on politics must considered. Lord Hoffman describes the legal duty to rescue or protect as an “invasion of an individual’s freedom” as it is forcing the individual to “consider the safety of others in his actions”. Individual citizens will have their right to liberty compromised and be coerced into acting like subsidiary policemen. It can be considered that placing these duties on individuals is inconsistent with the fundamental human rights that govern society, and infringes current essential law as individuals can then be punished for non‐action or even thoughts. The current law on human rights enforces a liberal individualism that is concerned with protecting individual autonomy and the ability to make individual judgements without infringing commands and desires from an authoritarian state. There are also further impracticalities to consider, where there is an enforced duty to prevent harm or render assistance to others. Despite it being morally fantastic to create a society in which others selflessly protect and assist each other, when faced with a situation in which they could intervene to help someone, many people are often too scared to. It cannot be considered reasonable to enforce a liability to act where a bare minimum citizens are conditioned with the bravery to intervene in a life threatening circumstance. Therefore, it must be considered that the prohibition of omissions is beyond intrusive upon an individual’s freedom and challenges the political stance that is currently governed, which is why liabilities for failure to act is to remain restricted.

It can also be considered that the English Law of Tort compensates for the absence of liability for a pure omission, with the existence of some circumstances where a duty can arise. One circumstance is when there is a special relationship between the defendant and claimant as there is an assumed responsibility of protecting the claimant from harm. This was seen in Watson v Boxing Board of Control, where the claimant was seriously injured in a professional boxing match, which was governed by the rules established by the defendant. It was found that the licensing and setting conditions for the boxing match was found as negligible, as the defendant had an assumed responsibility for the boxer’s medical care and the standard of the care provided was inadequate. The case of Home Office v Dorset Yacht Club, demonstrates a scenario where a special relationship arises due to a relation of control or supervision between the defendant and third party, as well as a special relationship arising due to the defendant having created a zone of danger around the claimant. In this case, the defendants negligently allowed for a group of young offenders that were under their supervision, to escape and damage the claimants yacht that was moored in a harbour. The supervisory nature of the relationship created the necessary degree of proximity between the defendant and claimant, as the claimant was in a position of control over the young offenders. Furthermore, the damage that was considered as foreseeable danger that would result from the claimant’s inaction. As demonstrated, the English law of tort works to the limit the absence of liability within omissions and has a focus on holding individuals liable for the criminal failure to act rather than immoral failure to act.

The absence of liability for a pure omission has sparked a critical debate on the distinction between moral and criminal responsibility. It is evident that pure omissions should not be criminalised as the reasoning for this is based too heavily on morals, and “something more is required than being a bystander”. This explains why we are held criminally liable for what we do rather than for what we think, or what we are. Furthermore, when assessing what could be considered as a liable omission, there is a notable danger that the criminalisation of pure omissions would lead to a creation of obligations posed upon the individual that are ‘open ended and/or fall due unpredictably’. The implications and argument for imposing a general duty on individuals to assist their fellow citizens who are in difficulty, is simply not strong enough to enforce the criminalisation of pure omissions.