Essay question: 'The common law's approach to omissions liability reflects not principle but an incoherent patchwork of exceptions driven by anxiety about public authority defendants.' Discuss.
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Model answer
The proposition identifies two alleged deficiencies in the law of omissions: lack of principled coherence and distortion by concern for public bodies. Both criticisms have force, but they require careful disaggregation.
The general rule and its exceptions
The starting point is uncontroversial: English tort law does not impose general affirmative duties. The rule is typically defended on grounds of autonomy—compelling positive action infringes liberty more than prohibiting harmful acts—and administrability—requiring rescue or protection would generate indeterminate liability. Yet the rule is subject to numerous exceptions: assumption of responsibility, creation of danger, control over the source of harm, reliance, and (for public bodies) statutory context.
Critics argue that these exceptions swallow the rule. Cane observes that once we account for all the relationships in which duties arise (parent-child, employer-employee, occupier-entrant, doctor-patient, school-pupil), the residual category of 'strangers' is small. The real question, Nolan suggests, is not act/omission but whether a relationship exists sufficient to generate responsibility. On this view, the misfeasance/nonfeasance distinction is a distraction: the neighbour principle should do the work.
This critique is powerful but not fatal. Even if many relationships give rise to duties, the distinction retains a role at the boundary. The bystander at the pond is a stranger and faces no liability. The rule thus operates negatively: it precludes duties in the residual category, while the exceptions define affirmative categories. Whether this is 'incoherent' or simply 'nuanced incrementalism' is contestable.
Coherence and causation
One defence of the omissions rule is causal: omissions do not cause harm in the same sense as acts. Hart and Honoré argued that causation is a normative, not purely factual, inquiry, and that we ordinarily attribute harm to positive interventions rather than absences. This defence is weakened by the 'but for' test's equal applicability to omissions. If the lifeguard had acted, the victim would not have drowned; 'but for' the omission, harm occurred. The real work is done by a normative judgment about responsibility, not by causation itself. The law's selectivity about which omissions count thus reflects policy choices, not metaphysical necessity.
Public authorities: principle or anxiety?
The second strand of the proposition—that concern for public bodies distorts doctrine—finds support in the case law. Stovin v Wise established a restrictive approach: statutory powers do not of themselves generate common law duties, and policy/operational distinction does not create duties but only governs breach. Lord Hoffmann's reasoning invokes indeterminate liability, resource allocation, and defensive administration—concerns specific to the state.
Yet Robinson insists that public authorities are not a special category. When police officers act positively and create a risk, they owe duties on ordinary neighbour principles. The problem lies in distinguishing acts from omissions in the statutory context. Failure to inspect (as in Gorringe) or failure to remove a child from an abusive home (as in CN v Poole) is characterised as nonfeasance. But the characterisation is debatable: if the authority exercises a statutory function, even if by deciding not to act in a particular case, is that misfeasance within the statutory scheme? The line is unstable.
Academic criticism (Booth, Bailey, Nolan) focuses on outcomes: claimants who suffer serious harm because of state omissions face systematic barriers not applicable to private defendants. The policy concerns cited in Michael and CN v Poole—indeterminate liability, defensive practices—apply with equal force to fire brigades or ambulance services, yet these bodies are treated more leniently in the case law than police or social services. The inconsistency suggests that judicial anxiety, rather than a coherent policy framework, is driving results.
The HRA dimension
The Human Rights Act complicates the picture. Articles 2 and 3 impose positive obligations on the state, and claimants sometimes succeed under the HRA where common law negligence fails. This dual-track system is awkward. If Convention rights require the state to protect individuals from serious harm in certain contexts, why does the common law not recognise an analogous duty? The Supreme Court in CN v Poole acknowledged the tension but declined to harmonise the two regimes, reasoning that the Convention sets minimum standards but does not compel particular common law rules.
Critics respond that the common law should develop compatibly with fundamental rights. Lord Kerr's dissent in Michael and his extra-judicial writings argue for a more generous approach to duty in contexts where Convention obligations are engaged. The majority's reluctance reflects institutional concerns—deference to Parliament, reluctance to expand tort liability without legislative steer—but comes at the cost of doctrinal coherence.
Conclusion
The common law's treatment of omissions is neither wholly incoherent nor wholly principled. The general rule reflects a defensible normative choice about the limits of civil liability. The exceptions are many, but they cluster around recognisable relationships and contexts. What is less defensible is the systematic divergence in treatment of public authorities. The policy concerns invoked in Stovin, Michael, and CN v Poole—resource allocation, defensive behaviour—are real, but they are also contestable and have been applied inconsistently. The HRA adds a layer of complexity that has not been satisfactorily integrated into the common law.
A fully coherent law of omissions would articulate a general principle—perhaps one grounded in relationships, rather than act/omission—and apply it consistently across defendants. The current law does not achieve this. Whether the patchwork is a pragmatic accommodation of competing values or an abdication of principle depends on one's view of the proper ambition of tort law. What is clear is that 'anxiety about public authority defendants' has played a significant role, and that the coherence of the resulting structure is open to serious question.
(Word count: ~1000 words. A full tutorial essay would expand discussion of individual cases, engage more deeply with academic literature, and consider reform options.)
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This model answer demonstrates the structure expected in an Oxford tutorial: clear thesis, engagement with leading cases and academic commentary, nuanced argument, and acknowledgment of competing perspectives. It avoids conclusory assertion and shows comfort with doctrinal complexity. In an examination, a shorter version hitting the key points—general rule and exceptions, treatment of public authorities, HRA tension, coherence critique—would suffice.