Reasons why omissions require different treatment from positive conduct
Introduction and background
In Stovin v Wise, Lord Hoffmann put forward three ‘sound reasons’ that justified the general common law rule against liability for omissions: (i) political, in that ‘it is less of an invasion of an individual’s freedom for the law to require him to consider the safety of other in his actions than to impose upon him a duty to rescue or protect’; (ii) moral, since a duty to prevent harm or render assistance to an imperilled person ‘may apply to a large and indeterminate class of people who happen to be able to do something’, and it is unreasonable to hold one liable over another; and (iii) economic, since unlike negligence, there is no ‘justification for requiring a person who is not doing anything to spend money on behalf of someone else’. But as Lord Nicholls pointed out in his dissenting judgement, the distinction between liability for acts and omissions ‘is not free from controversy’ and are not always ‘clear cut’. According to his lordship, the ‘categorisation may depend upon how broadly one looks when deciding whether the omission is a “pure” omission or is part of a larger course of activity set in motion by the defendant’. Nevertheless, he did share with Lord Hoffmann the view that, at least as a matter of general principle, omissions were exempt from liability. More recently, in Sutradhar v National Environment Research Council, the House of Lords restated this general rule in unequivocal terms, holding that omissions carried with it no positive obligations, and hence, no liability.
This essay examines whether such a distinction is justified, both on conceptual and substantive grounds. The first part looks at the fine line that exists between omissions and positive conduct, and the difficulties in distinguishing them in practice. The second part then moves on to a discussion of some of the substantive critiques of the mutually exclusive obligations that arise from distinction.
1. Conceptual critiques of the distinction
As noted by Lord Nicholls in his dissenting opinion above, the distinction between liability for omissions and acts is not without controversy. Lord Hoffmann’s explanation for the distinction in Stovin v Wise stipulates the general rule for ‘pure omissions’, i.e. cases where an omission on the part of the defendant directly causes (without more) losses or damage to the claimant. But as Witting noted, this ‘presumes that it is easy to classify any given conduct as nonfeasance (an omission) rather than misfeasance (requiring positive conduct). This is not always easy to do’. Indeed, the jurisprudence of the English courts demonstrates how difficult this is in practice. For example, in Johnson v Rea, the defendants, who were stevedores, dropped soda ash over a surface on which the claimant was subsequently invited to pass. It was held that the defendants had an obligation to take care of the safety of the surface area, with the failure to remove the soda ash deemed to be actionable. Nevertheless, the issue still remained (unresolved) as to whether this was an omission, or merely negligence constituted by a chain of positive conduct starting with the unloading of the soda bags.
A similar difficulty was presented in the more recent case of Kane v New Forest DC. Here the defendant was a planning authority who had authorised the construction of a footpath as part of a local development project. Despite being warned on several occasions that the path had dangerous blind spot issues, the planning authority failed act upon the design flaws. The claimant suffered serious injuries from the new footpath, but the action was summarily dismissed at the trial hearings on the basis of Stovin v Wise, but on appeal the action was allowed to proceed. The Court of Appeal distinguished Stovin v Wise from the present case, saying that the latter instant was not a case of ‘pure omission’ because the danger and the risk of injury had been effected by the defendant’s actual conduct (in requiring the footpath construction) and its knowledge that the design of the path had been constructed in a manner that posed significant, foreseeable risks.
As Nolan and Davies observed, the Kane v New Forest case demonstrated that ‘the line between failure to act and a careless act can sometimes be very fine’. Other scholars have also noted the fine distinctions between omissions and positive acts. According to Lunney and Oliphant: ‘the terms “act” and “omission” are at a purely linguistic level no more than labels that can be applied interchangeably to every instance of human conduct; the distinction does not reflect any deep, philosophical subdivision of human conduct into two essentially different types’. This has not been lost on the courts, and older case law reveals that the judges themselves have also dwelt on this issue. For example, in Harnett v Bond, Bankes LJ observed: ‘[a] medical man who diagnoses a case of measles as a case of scarlet fever may be said to have omitted to make a correct diagnosis; he may equally well be said to have made an incorrect diagnosis’. Hart and Honore further elaborated upon this point when they argued that human conduct, which ‘can be described alternatively in terms of acts or omissions’, may in some instances be more appropriately described as an omission; that is, ‘if there is a legal duty to do an act, and the subject has not done it, the legally relevant description will be in terms of an omission to perform the act in question’. But as Hart and Honore adds:
…the description of conduct as an omission may not imply any bodily movements by the person whose conduct is in question... Consequently those courts and writers who are impressed by ‘setting in motion’ as a prime instance of causation, and who further conclude that we can only set things in motion by ourselves making movements, find it difficult to understand how an omission to act can negative causal connection… In truth, no rational distinction can be drawn between causal status of acts and omissions.
Such an analysis clearly undermines the claim that is only the positive acts of a particular conduct (in ‘making things happen’) that are capable of operating as causes, in turn giving rise to liability since ‘doing nothing’ can not bring anything about. In fact, at least where there is an obligation to act, omissions can be as legally causative as an act. Nevertheless, it may be going too far to assert, as Hart and Honore does, that no rational distinction may be drawn between omissions and acts in ascertaining liability. As Wright points out, the terms ‘omission’ and ‘act’ in the context of tort law are applied so as to reflect and account for a commonly conceived distinction between failing to make something better and actually making something worse. In the former instant, liability results in significantly more constrictions on liberty of action than liability does for the latter. This is because it requires the defendant, already under an obligation to ensure that his actions do not affect others to unnecessary or unreasonable risks (see discussion below), to forgo the pursuit of those activities, and in some circumstances to drop everything else. However, even accounting for the observation above, the distinction, as Lunney and Oliphant have argued, may be ‘only one of degree, and that different duties of affirmative action restrict liberty of action to different extent’. In such a case, it may be ‘fair to ask why liability for a failure to act should not be imposed where the action required entails very little on the defendant’s part but prevents the claimant suffering serious injury’.
2. Substantive critiques of the distinction
Lord Hoffmann’s justifications for distinguishing between omissions and positive conduct also presents more than just conceptual difficulties. The general principle of excluding liability for omissions in English tort law forms the basis for its concomitant refusal to recognise a general duty of affirmative action for non-positive conduct. The common law does not recognise a duty of rescue, for example, except in highly limited set of circumstances, such as an undertaking to protect and safeguard an imperilled individual. As was clearly illustrated in Day v High Performance Sports, where an individual does undertake a rescue, then that individual is unquestionably liable should the rescue actually expose the imperilled person to a new or even greater risk or danger. However, bar these (highly restricted) special circumstances, the failure of the common law to acknowledge the existence of a general duty of rescue has been subject to a number of critical commentaries. Prosser and Keeton have been particularly expressive in this regard, stating that the failure of the English courts to recognise the positive duty as ‘revolting to any moral sense’. They point out that the ‘remedy in such cases is left to the “higher law” and the “voice of conscience”, which, in a wicked world, would seem to be singularly ineffective either to prevent the harm or to compensate the victim’.
In similar vein, scholars like Bender have also taken a critical approach to the absence of a positive obligation, saying that tort law ‘needs to be more of a system of response and caring than it is now’. Arguing from a feminist perspective, she writes that the focus of tort law ‘should be on interdependence and collective responsibility rather than on individuality, and on safety and help for the injured rather than on ‘reasonableness’ and economic efficiency’. In Bender’s words, these are ‘implicit male norms’ that have skewed and distorted proper legal analysis; she notes that ‘[g]ender distinctions have often been reinforced by dualistic attributions of reason and rationality to men, emotion and intuition (or instinct) to women…The “no duty [to rescue]” rule is a consequence of a legal system devoid of care and responsiveness to the safety of others’.
Other advocates of duties of affirmative action have taken a more nuanced approach to the issue without endorsing the kind of mutual obligation envisaged by scholars Prosser and Keeton. Weinrib, for example, has argued that the duty should be imposed in circumstances of emergency where a rescuer may be able to act without prejudicing himself, although he stopped short of supporting a general application of the duty of beneficence. However, Weinrib appears to have subsequently retracted his endorsement for even this limited form of affirmative duty confined to situations of emergency. He now points out that such a duty may be inconsistent with the differences between nonfeasance and misfeasance, which he considers a fundamental distinction and one that is intrinsic to the correlative structure and nature of tort law. Indeed, it has been noted that tort law merely purports to rectify the injustices brought about by a defendant performing acts that are incompatible with a claimant’s rights. Some have argued that since a general duty of affirmative action does not exist under ordinary circumstances, an individual who is imperilled has no right to demand or expect another to come to her assistance.
Not with standing the difficulties arising from the different treatment of omissions and positive conduct in determining liability, there are, as ever, exceptions to the general common law position, although no precise categorisation can be given of the various possible scenarios in which an obligation of affirmative action may be called for. Still, a number of loosely defined situations giving rise to obligations of affirmative action can be identified in case law. In Capital & Countless plc v Hampshire County Council, it was held that such a duty existed, or rather came into being, if the defendant created the very source of the danger to which the claimant suffered, even in the absence of any direct causal connection. In Kent v Griffiths, the duty was recognised in circumstances where there was an undertaking on the part of the defendant for the welfare of the claimant. The case of Barrett v Ministry of Defense also suggest that the duty may exist if the defendant occupies a position of responsibility (or office) that calls for positive conduct within the ambit of that responsibility. These broad general categories may serve as significant factors in creating obligations of affirmative action on both public bodies and private individuals.
Beever, A, Forgotten Justice: Forms of Justice in the History of Legal and Political Theory (Oxford University Press 2013)
Bender, L, ‘A Lawyer’s Primer on Feminist Theory and Tort’ (1988) 38 Journal of Legal Education 3, 22
Bermingham, V and Brennan, C, Tort Law Directions (4th edn, Oxford University Press 2014)
Galligan, T, et al, Tort Law: Cases, Perspectives, and Problems (4th edn, LexisNexis 2007)
Hart, H L A and Honore, T, Causation in the Law (2nd edn, Oxford University Press 1985)
Kortmann, J, Altruism in Private Law: Liability for Nonfeasance and Negotiorum Gestio (Oxford University press 2005)
Lunney, M and Oliphant, K, Tort Law: Text and Materials (5th edn, Oxford University Press 2013)
Nolan, D and Davies, J, ‘Torts and Equitable Wrongs’, in A Burrows, English Private Law (3rd edn, Oxford University Press 2013)
Prosser, W and Keeton, P, Prosser and Keeton on the Law of Torts (5th edn, West Publishing Company 1984)
Quill, E, ‘Affirmative Duties of Care in the Common Law’ (2011) 2 Journal of European Tort Law 151
Richardson, J and Rackley, E (eds), Feminist Perspectives on Tort Law (Routledge 2012)
Stevens, R, Torts and Rights (Oxford University Press 2009)
Weinrib, E, ‘Correlativity, Personality, and the Emerging Consensus on Corrective Justice’ (2001) 2 Theoretical Inquiries in Law 107
Weinrib, E, ‘The Case for a Duty to Rescue’ (1981) 90 Yale Law Journal 247
Witting, C, Street on Torts (14th edn, Oxford University Press 2015)
Wright, R, ‘Acts and Omissions as Positive and Negative Causes’, in J Neyers, E Chamberlain and S Pitel, Emerging Issues in Tort Law (Bloomsburg Publishing 2007)
Barrett v Ministry of Defense  1 WLR 1217
Capital & Countless plc v Hampshire County Council  QB 1004
Day v High Performance Sports Ltd  EWHC 197 (QB)
Harnett v Bond  2 KB 517
Johnson v Rea Ltd  1 QB 373
Kane v New Forest DC  1 WLR 312
Kent v Griffiths  QB 36
Reeves v MPC  1 AC 360
Stovin v Wise  AC 923
Sutradhar v National Environment Research Council  4 All ER 490
Vellino v CC of Greater Manchester  1 WLR 218
X v Bedfordshire CC  2 AC 633
Yuen Kun Yeu v Attorney General of Hong Kong  AC 175
Stovin v Wise  AC 923.
Sutradhar v National Environment Research Council  4 All ER 490.
C Witting, Street on Torts (14th edn, Oxford University Press 2015), 40.
Johnson v Rea Ltd  1 QB 373.
Kane v New Forest DC  1 WLR 312.
D Nolan and J Davies, ‘Torts and Equitable Wrongs’, in A Burrows, English Private Law (3rd edn, Oxford University Press 2013), 956.
M Lunney and K Oliphant, Tort Law: Text and Materials (5th edn, Oxford University Press 2013), 455.
Harnett v Bond  2 KB 517.
H L A Hart and T Honore, Causation in the Law (2nd edn, Oxford University Press 1985), 138.
Lunney and Oliphant, n 8, 456.
R Wright, ‘Acts and Omissions as Positive and Negative Causes’, in J Neyers, E Chamberlain and S Pitel, Emerging Issues in Tort Law (Bloomsburg Publishing 2007), 288.
See J Kortmann, Altruism in Private Law: Liability for Nonfeasance and Negotiorum Gestio (Oxford University press 2005), Ch 3.
Lunney and Oliphant, n 8, 456.
E Quill, ‘Affirmative Duties of Care in the Common Law’ (2011) 2 Journal of European Tort Law 151.
Day v High Performance Sports Ltd  EWHC 197 (QB).
See also Reeves v MPC  1 AC 360; X v Bedfordshire CC  2 AC 633.
W Prosser and P Keeton, Prosser and Keeton on the Law of Torts (5th edn, West Publishing Company 1984), 376.
L Bender, ‘A Lawyer’s Primer on Feminist Theory and Tort’ (1988) 38 Journal of Legal Education 3, 22. See also J Richardson and E Rackley (eds), Feminist Perspectives on Tort Law (Routledge 2012), 106-128; T Galligan et al, Tort Law: Cases, Perspectives, and Problems (4th edn, LexisNexis 2007), Ch 1.
E Weinrib, ‘The Case for a Duty to Rescue’ (1981) 90 Yale Law Journal 247.
E Weinrib, ‘Correlativity, Personality, and the Emerging Consensus on Corrective Justice’ (2001) 2 Theoretical Inquiries in Law 107, 139.
See A Beever, Forgotten Justice: Forms of Justice in the History of Legal and Political Theory (Oxford University Press 2013), 22-27.
See Yuen Kun Yeu v Attorney General of Hong Kong  AC 175; Vellino v CC of Greater Manchester  1 WLR 218.
For a discussion of this basic idea, see R Stevens, Torts and Rights (Oxford University Press 2009), Ch 2.
Capital & Countless plc v Hampshire County Council  QB 1004.
Kent v Griffiths  QB 36.
Barrett v Ministry of Defense  1 WLR 1217.
The former may also be subject to further affirmative obligations under the Human Rights Act 1998; V Bermingham and C Brennan, Tort Law Directions (4th edn, Oxford University Press 2014), 5.