Omissions and public authorities

This week moves from the boundary problems considered in psychiatric injury and pure economic loss to another limiting device in negligence: liability for failures to act. The central proposition is simple, but its application is exacting. English negligence does not ordinarily impose liability merely because D failed to protect C from harm. The law normally distinguishes misfeasance, where D made matters worse, from nonfeasance, where D did not improve C's position. That distinction is often criticised, but it remains the organising starting point.

The topic is not confined to dramatic rescue cases. It structures many claims against public authorities: police who fail to prevent crime, local authorities who fail to remove children from dangerous households, highway authorities who fail to warn of hazards, fire brigades who fail to extinguish fires, and regulatory bodies who fail to prevent wrongdoing by others. In each setting, the claimant must overcome the same basic obstacle: the defendant is being asked to answer not for harm it inflicted directly, but for harm caused by a third party, a natural event, or an existing danger.

The modern law is best understood through a sequence of Supreme Court and House of Lords decisions. Smith v Littlewoods states the general rule and the recognised exceptions. Stovin v Wise and Gorringe v Calderdale emphasise that statutory powers do not, without more, create private law duties. Michael v Chief Constable of South Wales Police confirms that the police are not generally liable for failing to protect an individual from crime. Robinson v Chief Constable of West Yorkshire rejects any special police immunity for positive acts and corrects over-use of Caparo. N v Poole, HXA v Surrey and Tindall then restate the law of omissions with unusual clarity.

For Durham first-year Tort, the point is methodological as much as substantive. In Week 1 you learned that duty is not a loose appeal to fairness. In Weeks 2 and 3 you saw how negligence restricts liability where responsibility would otherwise spread indeterminately. Omissions and public authorities complete that pattern. A strong answer does not say, 'there is no duty for omissions', and stop. It asks: what precisely is the source of danger; did D create it or make it worse; did D assume responsibility to C; did D control the third party or the danger; is there a statutory context; and is the alleged duty consistent with the defendant's public functions?

The common law's reluctance to impose affirmative duties has deep roots. Tort law developed mainly as a law of wrongs committed by acts: trespass to the person, trespass to land, nuisance, and later negligence as careless conduct causing damage. A duty to compensate for doing harm is conceptually easier than a duty to compensate for failing to confer a benefit. In ordinary moral language, failing to rescue may be blameworthy. In private law, however, liability requires a reason why this defendant, rather than the world at large, must bear this loss.

Older English authorities display anxiety about open-ended liability. If a passer-by is liable for failing to rescue a stranger, why not every other passer-by? If a public authority is liable for failing to prevent foreseeable harm, how are courts to allocate scarce public resources after the event? The law therefore developed categories in which an affirmative duty can be justified: where D creates the danger, assumes responsibility, has a protective relationship with C, controls a dangerous thing or person, or acts so as to worsen C's position.

Public authority liability adds a constitutional dimension. Nineteenth- and early twentieth-century law often treated public bodies through the language of statutory powers and immunities. The Crown historically enjoyed special procedural protection, though the modern law has largely normalised governmental liability. The more persistent issue is not immunity in the old sense, but whether a statutory function gives rise to a private law duty of care. Courts have repeatedly answered: not merely because Parliament has created a public function. A statutory power is ordinarily conferred for public purposes, enforceable through public law, political accountability, inspection, ombudsmen, or statutory remedies. A private damages action requires an additional private law basis.

The high-water mark of claimant optimism came after Anns v Merton London Borough Council, where broad proximity and policy reasoning encouraged claims that public regulators should answer for failures to prevent loss. That approach was narrowed substantially in Murphy v Brentwood and later public authority cases. X (Minors) v Bedfordshire stressed institutional competence and resource allocation, though some of its reasoning was softened by later decisions, especially where human rights claims were in play.

The present position is more disciplined. Robinson insists that there is no blanket public authority immunity. If a police officer negligently knocks a passer-by over during an arrest, ordinary negligence principles apply. But where the complaint is a failure to prevent another person's wrongdoing, Michael and Tindall reaffirm the ordinary rule against liability for omissions. In child protection, N v Poole and HXA make clear that investigation, monitoring and statutory involvement do not by themselves amount to an assumption of responsibility. This historical movement is therefore not a straight line from immunity to accountability. It is a movement from broad policy discretion towards more precise categories of duty.

1. Begin with the act/omission distinction. The law is much more willing to impose liability where D has created a risk or made an existing risk worse than where D merely failed to remove a risk created by someone or something else. This is not a mechanical linguistic test. The same facts can be characterised differently. A police officer who leaves a crashed vehicle in a dangerous position may be said to have failed to clear it; if the officer also removed warning signs and thereby increased the danger, the case becomes one of making matters worse. The examination task is to characterise the negligence accurately and to justify the characterisation.

1. There is no general duty to rescue. A stranger who sees a child drowning in shallow water is not generally liable in negligence for walking past, however morally shocking that may be. Tort law does not impose a universal duty of easy rescue. The reason is not that omissions are harmless; omissions may be causally connected with terrible harm. The reason is that a legal duty to confer benefits needs a special basis. Without that basis, liability would be diffuse, potentially arbitrary, and difficult to limit.

1. Recognised routes to liability must be pleaded with precision. The leading routes are: creation of danger; assumption of responsibility; control over the source of danger; control over a third party; a status or relationship giving rise to responsibility; and making matters worse after intervening. A statutory duty may be relevant, but it is not enough that the defendant had a statutory function or power. The claimant must show either that the statute creates a private right of action or that ordinary common law principles, applied in the statutory context, generate a duty.

The modern law is anchored in a small number of authorities. Smith v Littlewoods is the orthodox starting point. Vandals entered an empty cinema and started a fire which damaged neighbouring property. The House of Lords refused to impose liability on the owner merely for failing to prevent third-party wrongdoing. The case is valuable because it identifies the exceptions as well as the rule: responsibility may arise where D creates the source of danger, assumes responsibility, or has special control.

Dorset Yacht is the classic control case. Borstal trainees escaped during an island exercise and damaged yachts. The officers were not simply public officials who failed to prevent crime in the abstract. They had supervisory control over identifiable young offenders in circumstances where damage to nearby boats was foreseeable. The case remains important, but it should not be inflated into a broad duty on public authorities to prevent all wrongdoing.

Stovin v Wise concerns a highway authority's failure to remove a bank which obstructed visibility at a road junction. The House of Lords refused liability. The authority had statutory powers, but a public power to improve safety did not create a private duty to every road user. Lord Hoffmann's reasoning is often controversial because of its strong distinction between public law obligations and private law duties, but the central point remains orthodox.

Gorringe v Calderdale reinforces that view. The claimant argued that a highway authority should have painted a warning on the road. The House of Lords rejected the attempt to convert a statutory road-safety function into a private duty. The case is a warning against treating statutory functions as proximity. If a highway authority positively creates a danger, or breaches a specific statutory maintenance duty, the analysis may differ; but non-exercise of a safety power is not enough.

Michael is the leading police omissions case. A woman called 999 reporting threats from her former partner. Police response errors occurred, and she was killed before officers arrived. The Supreme Court denied a common law duty to protect her from the criminal act, though HRA issues were treated separately. The decision confirms that the police's public duty to preserve the peace is not normally owed as a private law duty to individual victims.

Robinson is equally important because it prevents overstatement. Police officers attempting to arrest a suspect knocked an elderly pedestrian to the ground. The Supreme Court held that ordinary negligence principles applied. The case was not a failure to protect from third-party harm; it was a positive act causing injury. Public authorities do not enjoy general immunity.

N v Poole and HXA address child protection. Both reject the proposition that social services assume responsibility merely by investigating or monitoring a family. A local authority may owe duties once it has taken a child into care or otherwise assumed responsibility, but the existence of statutory child protection powers does not itself create a common law duty to remove children from harm. Tindall then restates the general omissions principles in the public authority setting, stressing that making matters worse and assuming responsibility remain exceptional routes, not loose invitations to liability.

See practice questions section below.

See further reading section below.