Essay on Liability for Omissions

7228 WordsMar 12, 201129 Pages
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…show more content…
A number of other jurisdictions do however impose affirmative duties of rescue. For example, the French Penal Code imposes criminal liability on anyone who wilfully refuses to assist a person in danger where he could have done so without risk to himself or others. Furthermore, where the danger materialises and injury results, breach of this duty is actionable under the Code Civil which allows liability for omissions. Similar criminal liabilities for failing to perform an “easy rescue” also exist in the USA, and also in Canada via the Vermont Statute, although it is unclear whether damages in civil law can also be recovered in such a case. Despite the general principle excluding liability for omissions, liability may arise in certain exceptional circumstances. Although these situations where a duty may arise on the basis of an omission are difficult to classify, what is usually required in all of them is some element of proximity. This may be created in a number of situations which will now be looked at. In addition, in such cases, the factors for establishing a duty of care (forseeability, proximity, fair, just and reasonable) laid down in Caparo will also need to be looked at. Voluntary Assumption of Responsibility Where one of the parties has either expressly or impliedly assumed responsibility for the other in some way, or where such responsibility arises
Open Document