Omissions and public authorities

This week concerns one of the central constraints on negligence. English tort law is generally reluctant to impose liability for a pure omission: a failure to confer a benefit, rescue a stranger, prevent another from causing harm, or use public powers to protect the claimant. The ordinary duty in negligence is a duty not to make things worse, not a duty to make things better. That distinction is simple to state but difficult to administer, because many cases can be characterised either way. A police officer who fails to arrest a dangerous person looks inactive; a social worker who places a child with foster carers may have positively created a situation of dependency; a fire brigade that turns off sprinklers has plainly worsened the claimant’s position.

The topic is examined through two connected bodies of authority. First, the general law of omissions: when, exceptionally, does the defendant owe a duty to act? The principal categories are assumption of responsibility, creation of danger, control over a third party or source of danger, and certain pre-existing relationships. Secondly, the liability of public authorities: when may a claimant sue the police, local authority, emergency service or regulator for failing to exercise statutory powers? The modern answer is not that public authorities enjoy a general immunity. The Supreme Court has repeatedly rejected that proposition. Rather, a public body is normally subject to the same principles as a private person. The difficulty is that many claims against public bodies are omission claims. They allege failure to investigate, warn, prevent crime, remove a child, inspect, regulate or confer protection. The mere existence of a statutory power or public law duty does not normally generate a private law duty of care.

The key cases after Robinson, Michael, CN v Poole and HXA/YXA require careful synthesis. Robinson confirms that the police may owe a duty where officers themselves cause physical injury by a positive act. Michael confirms that the police do not owe a general duty to protect an individual from a third-party criminal, even after an emergency call, unless one of the recognised exceptions applies. CN v Poole clarifies that local authorities do not assume responsibility merely by investigating or monitoring children under statutory child-protection functions. HXA and YXA confirm that a failure to exercise child protection powers is normally an omission, and that assumption of responsibility requires something more than knowledge, visits, meetings and statutory involvement.

For Cambridge purposes, the best answers avoid slogan and immunity. They ask: what is the alleged breach? Did the defendant make matters worse, or merely fail to prevent harm? Is there an established category, an incremental analogy, or a genuine novel duty? Would the duty cut across the statutory scheme? The examiner is looking for classification, authority, and normative control.

The common law’s suspicion of liability for omissions is older than the modern duty of care formula. It reflects three overlapping ideas. First, liberal individualism: the law ordinarily forbids harming others but does not compel altruism. Secondly, administrability: a general duty to rescue would be indeterminate in range, content and priority. Thirdly, institutional competence: courts are uneasy about converting broad public functions into damages duties owed to particular individuals.

The early public authority cases were shaped by the misfeasance/nonfeasance distinction. In East Suffolk Rivers Catchment Board v Kent, a public authority undertook flood defence works but performed them slowly and inefficiently. The House of Lords held that, where the authority was under no duty to act at all, liability would not arise merely because its intervention failed to improve the claimant’s position. The authority must have made matters worse. That case remains important, not because its precise reasoning is always followed, but because it captures the core anxiety: negligent rescue is not necessarily actionable where there was no duty to rescue.

Dorset Yacht Co Ltd v Home Office marked a significant opening. Borstal officers failed to control trainees who escaped and damaged yachts. The House of Lords held that the Home Office could owe a duty. The case is not a general duty to prevent crime. Its narrower importance lies in control and creation of risk: the defendants had custody and control over the wrongdoers, and the risk to nearby property was foreseeable. The case sits beside later cases on parental, custodial, educational or institutional control, but it does not abolish the omission rule.

The expansionary period following Anns v Merton London Borough Council encouraged claimants to argue that statutory powers, inspection functions and public responsibilities should translate into private duties. That tendency was then curtailed. Hill v Chief Constable of West Yorkshire rejected a claim by the mother of the final victim of the Yorkshire Ripper. It was often read as conferring a broad police immunity. Later authority has corrected that reading. Hill is better understood as rejecting a duty to protect the public from a third-party criminal in the conduct of an investigation, supported by policy concerns about defensive policing and diversion of resources.

The late twentieth century produced inconsistent signals. Claims against education authorities and professionals sometimes succeeded where there was direct reliance or professional responsibility, as in Phelps. Claims against emergency services often failed where the defendant did not create danger or assume responsibility, as with fire services, but ambulances were treated differently once the service accepted a call and the patient came within the healthcare system. Child protection generated particular difficulty. In X (Minors) v Bedfordshire, the House of Lords struck out negligence claims arising from child-protection failures, relying heavily on policy. Later cases allowed claims by children in care or against professionals, but the exact boundary remained unclear.

The modern law has sought to rationalise the field. Michael and Robinson separated ordinary negligence from omission claims. CN v Poole removed the misconception that public authority involvement, knowledge of risk or statutory child-protection functions are enough. HXA/YXA confirmed that failure to remove a child from a dangerous home is not equivalent to creating the danger. The historical movement is therefore not from immunity to liability, nor from liability to immunity. It is from broad policy language towards a more structured inquiry into acts, omissions, assumption of responsibility, control, reliance and statutory context.

1. The starting point: no general duty to confer benefits. English negligence law does not impose a general duty to rescue, warn, protect, investigate, prevent crime, prevent suicide, or exercise a statutory power for the claimant’s benefit. The basic contrast is between causing harm and failing to prevent harm. If D drives carelessly into C, D has caused harm. If D sees C drowning and walks past, D has failed to confer a benefit. Moral blame may attach to both, but tort law usually recognises only the former.

1. Characterisation is decisive but contestable. Many cases turn on whether the defendant’s conduct is described as a positive act or an omission. In Robinson, police officers physically knocked over an elderly pedestrian while arresting a suspect. That was ordinary positive negligence. In Michael, police failed to arrive in time to prevent a murder by the claimant’s former partner. That was a failure to protect against a third party. In CN v Poole, a local authority failed to remove children from a home where neighbours were abusing them. That was a failure to exercise statutory powers to protect, not the creation of the abusive situation. Avoid the trap of treating all public authority negligence as omissions. The first question is always: what exactly did the defendant do or fail to do?

1. Creation of danger. If D creates a source of danger, D may owe a duty to take reasonable steps to prevent the danger causing harm. This is not really an exception to the omission rule; it is a consequence of the earlier positive act. If a driver crashes and leaves debris in the road, the failure to warn is parasitic on the creation of danger. In public authority cases, creation of danger is vital. A public body that merely fails to remove a danger created by others is usually not liable; a public body that positively introduces, increases or releases a danger may be.

The leading authorities form a coherent map if arranged by the type of duty alleged. East Suffolk is the starting point for negligent rescue. It shows the court’s unwillingness to impose liability merely because a public body intervened unsuccessfully where it had no private law duty to intervene. The authority’s delay did not worsen the claimant’s position in the relevant sense.

Dorset Yacht is the classic control case. The Home Office was not liable simply because criminals committed damage. Liability arose because borstal officers had custody and control over the trainees and the risk to nearby property was obvious. It is therefore a narrow but important exception to the no-duty-to-control principle.

Stovin v Wise is central to statutory powers. A highway authority failed to remove a dangerous bank from land at a junction. The majority refused to impose a duty. The case warns against deriving private law duties from unexercised public powers and resource-sensitive decisions. Although some of Lord Hoffmann’s reasoning has been criticised, the basic proposition survives: a power to act is not enough.

Capital and Counties distinguishes non-attendance from worsening. Fire brigades generally owe no duty simply to answer calls or fight fires successfully. But where firefighters turned off a sprinkler system, they made the situation worse and were liable. The case is an excellent problem-question authority because it demonstrates the act/omission boundary in concrete form.

Gorringe reinforces the point that statutory road safety duties do not automatically translate into common law duties to warn motorists. The claimant’s real complaint was non-exercise of a public function. Ordinary road users remain primarily responsible for driving safely unless the authority positively creates a hazard or falls within an established duty.

Michael is the modern police omission case. The police mishandled emergency calls before the claimant was murdered by her former partner. The Supreme Court refused to impose a common law duty to prevent third-party violence absent assumption of responsibility or another exception. The decision is often contrasted with possible HRA liability under Article 2.

Robinson corrected overbroad readings of Hill. Police officers attempting an arrest knocked over an elderly pedestrian. The claim was not for failure to prevent crime but for positive physical injury caused by officers. Ordinary negligence principles applied. Robinson is now the first citation against any argument that the police enjoy general immunity.

CN v Poole and HXA/YXA are the contemporary child-protection cases. They reject the argument that investigation, knowledge of risk, meetings and statutory involvement amount to assumption of responsibility. A local authority does not create danger by failing to remove a child from a harmful environment created by others. A duty may arise where the authority takes a child into care, places the child, or otherwise undertakes responsibility in a more direct way, but not merely from child protection functions.

See practice questions section below.

See further reading section below.