Omissions and public authorities

The common law's treatment of omissions reflects a foundational choice about the scope of civil liability. English tort law begins from the proposition that liability attaches to acts rather than failures to act. A defendant who sits and watches a stranger drown in a shallow pool commits no tort, however easy rescue might be and however morally reprehensible the inaction. This refusal to impose affirmative duties to rescue or protect is sometimes defended on grounds of personal autonomy and sometimes criticised as callous individualism.

Yet the common law recognises a catalogue of exceptions. Where the defendant has assumed responsibility, created danger, or stands in certain relationships to the claimant, a duty to take positive steps may arise. Equally, statutes may impose specific duties of care or empowerment, and breaches of such duties may (or may not) give rise to private law remedies.

Public authorities present distinct difficulties. A local authority, police force, fire service, or regulatory body exercises statutory functions often directed at collective or diffuse benefits rather than individual claimants. Resource allocation, policy discretion, and the risk of defensive administration all weigh against broad exposure to negligence claims. Parliament has intervened twice in recent decades—first through s 2 of the Compensation Act 2006 (clarifying deterrence considerations) and more substantially through ss 1–3 of the Human Rights Act 1998—to reshape the landscape. The result is a patchwork of principle and pragmatism: some omissions ground liability, many do not, and the line turns on close doctrinal classification and, at the margins, on overtly policy-driven immunities.

This note examines the circumstances in which a defendant may be liable for failing to act, with particular attention to public bodies exercising statutory functions. It builds on the principles of duty of care, psychiatric injury, and pure economic loss already covered in Weeks 1–3, and assumes familiarity with Caparo and its aftermath.

The omissions rule is commonly traced to Victorian individualism and laissez-faire political economy. The rise of negligence as a general principle of liability coincided with a strong preference for negative liberty: one should not be compelled to be one's neighbour's keeper. Early cases such as Gautret v Egerton (1867) LR 2 CP 371 and dicta in Smith v Littlewoods Organisation Ltd [1987] AC 241 reaffirm the distinction between misfeasance (positive wrongdoing) and nonfeasance (passive omission), the former actionable and the latter generally not.

The expansion of the welfare state in the twentieth century brought with it a proliferation of statutory duties placed upon local authorities, health bodies, police, and other emanations of the state. While some statutes expressly created private rights of action, many did not. Courts confronted the question whether breach of a statutory duty intended for public benefit could give rise to a common law duty of care owed to individuals harmed by the authority's inaction. Early approaches were generous: in Dorset Yacht Co Ltd v Home Office [1970] AC 1004, the House of Lords held that a common law duty of care could arise even in the exercise of a statutory discretion, provided the circumstances fell within established neighbour principles. But by the 1990s, anxiety about diverting public resources into litigation and constraining policy choices led to retrenchment. X (Minors) v Bedfordshire County Council [1995] 2 AC 633 marked a high-water mark of immunity, holding that many decisions by local authorities in child protection and education were non-justiciable in negligence.

The incorporation of the European Convention on Human Rights by the Human Rights Act 1998 shifted the terrain. Article 2 (right to life) and Article 3 (prohibition of torture and inhuman treatment) were interpreted by the Strasbourg Court as imposing positive obligations on states in certain circumstances (Osman v United Kingdom (1998) 29 EHRR 245). English courts began to recalibrate the omissions rule and public authority immunity to avoid inconsistency with Convention obligations. The results have been uneven: some claimants now succeed under the HRA where common law negligence would fail; others find the substantive thresholds of Articles 2 and 3 as demanding as any common law test.

The general rule: no liability for omissions

The foundational principle is that there is no general duty to rescue or to protect another from harm, even where intervention would be easy and the threatened harm severe. Lord Goff's speech in Smith v Littlewoods remains the locus classicus: one is entitled to mind one's own business and is not under a general duty to prevent third parties from causing damage to others.

Recognised exceptions at common law

The common law recognises at least five categories in which a duty to take positive steps arises:

1. Assumption of responsibility. If D voluntarily assumes responsibility for C's welfare, a duty to take reasonable care in performing that undertaking may arise. This is clearest in contractual or quasi-contractual relationships—employer and employee, school and pupil, hospital and patient—but may also be found in gratuitous undertakings if the defendant's conduct induces reliance. Barrett v Ministry of Defence [1995] 1 WLR 1217 illustrates the limits: the MOD owed a duty to a serviceman once it assumed care of him when he was drunk, but not before.

2. Creation of danger. If D's conduct (whether innocent or negligent) creates a source of danger, D comes under a duty to take reasonable steps to avert harm. Haynes v Harwood [1935] 1 KB 146 (runaway horse) and the principle underlying occupiers' liability to trespassers (via British Railways Board v Herrington [1972] AC 877 and now the Occupiers' Liability Act 1984) reflect this exception.

3. Control over source of harm. If D has control over a third party or thing that poses a danger to C, a duty to prevent that harm may arise. This includes employers' vicarious liability for employees, parents' limited duties for children, and occupiers' duties in respect of dangers on their premises. Smith v Littlewoods itself concerned vandals entering derelict premises; the House of Lords held that mere ownership did not ordinarily impose a duty to prevent deliberate wrongdoing by third parties, though in exceptional cases—where the defendant knew or ought to have known of a special risk—such a duty might exist.

Smith v Littlewoods Organisation Ltd [1987] AC 241

The House of Lords reaffirmed the general principle that there is no duty to prevent third parties causing harm, subject to narrow exceptions. Lord Goff's speech is the most influential exposition of the categories in which affirmative duties arise.

Stovin v Wise [1996] AC 923

A highway authority had statutory power to require removal of a bank obscuring visibility at a junction. It did nothing, and a collision occurred. The House of Lords (Lord Hoffmann and Lord Nicholls; Lord Slynn dissenting) held no duty of care arose. The existence of a power, without more, does not ground a common law duty. There must be 'exceptional' circumstances akin to assumption of responsibility or reliance. The case represents the high-water mark of judicial reluctance to impose duties on public authorities exercising discretionary powers.

Barrett v Enfield LBC [1999] 2 AC 550; [2001] 2 AC 550

A child taken into care alleged negligence in the authority's management of his foster placements and adoption plans. The House of Lords allowed the claim to proceed to trial, holding that X v Bedfordshire did not establish a blanket immunity for local authorities in child-care cases. Operational decisions, as opposed to policy decisions about resource allocation, could be justiciable. This marked a retreat from the broad immunities recognised in X v Bedfordshire.

Gorringe v Calderdale MBC [2004] UKHL 15

A highway authority failed to repaint a 'SLOW' marking on the road. A motorist crashed. The House of Lords held no duty arose. The statute (Highways Act 1980) conferred powers, not duties, and no common law duty could be bootstrapped from the existence of the power. Reliance was not established, and the authority had not created the danger. Lord Hoffmann emphasised that policy/operational distinction does not create a duty but only affects breach once a duty is established.

Michael v Chief Constable of South Wales Police [2015] UKSC 2

A woman telephoned the police reporting violent threats from her ex-partner and then went silent. The call-handler failed to dispatch officers promptly; the ex-partner murdered her. The Supreme Court (Lord Kerr and Lady Hale dissenting) held no common law duty of care arose. The police owe duties to the public at large, not to individual members except in special circumstances (e.g., assumption of responsibility or creation of danger). The policy concerns—indeterminate liability, defensive policing, resource allocation—were decisive. The majority distinguished cases where police had assumed responsibility (e.g., placed a witness in a protection programme) or created danger.

Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4

Police officers attempted to arrest a suspect in a busy street. In the ensuing scuffle, an elderly passer-by was knocked over and injured. The Supreme Court held that the police owed her a duty of care. This was not an omissions case but a straightforward application of Donoghue v Stevenson: the officers' positive acts created a foreseeable risk to a proximate claimant. Lord Reed's judgment criticised the over-use of Caparo and emphasised that established duty categories should be applied by analogy without reinventing the wheel in every case. The decision marked a modest retreat from the defensive approach of Michael and clarified that the core neighbour principle applies to public authorities when they act, even if they enjoy immunity for certain omissions or policy decisions.

CN v Poole BC [2019] UKSC 25

A local authority's social workers allegedly failed to protect a child from abuse, despite receiving multiple reports. The Supreme Court held (Lords Kerr and Wilson dissenting) that no common law duty of care arose. Imposing such a duty would cut across the scheme of the Children Act 1989, which did not confer a private right of action. The authority had not assumed responsibility to the child in the relevant sense: statutory child protection functions are owed to children generally, not so as to create individual relational duties actionable in tort. The decision reinforces the restrictive approach to omissions liability for public authorities post-Michael.

See practice questions below.

See further reading below.