Law of Torts
Omissions, the Absence of a General Duty to Rescue, and Assumption of Responsibility
The common law imposes a duty not to cause harm, and not a duty to confer a benefit. From that single proposition follows the rule that startles every student on first meeting it: there is no general duty to rescue. A stranger may stand and watch a child drown in six inches of water, and commit no tort. The rule is not an oversight but a deliberate position, resting on autonomy, on the difficulty of choosing among bystanders, and on the impossibility of setting limits. What the subject is actually about is the exceptions: the relationships, the assumptions of responsibility, and the situations of control in which the law does require a person to act.
The general rule, where a duty to act arises, and the particular positive duties
1. The General Rule
- Misfeasance is actionable; nonfeasance ordinarily is not. Doing a thing badly founds liability; not doing it at all ordinarily does not.
- The law distinguishes causing harm from failing to prevent it. A defendant who makes the plaintiff worse off is in a different position from one who merely fails to make him better off.
- There is no general duty to rescue, however easy the rescue and however grave the peril.
- Nor is there a general duty to control another person, or to prevent him from causing harm.
- Stovin v. Wise [1996] AC 923 restates the rule and the reasons for it.
2. Why the Law Takes This Position
1. Autonomy. A duty to act is a far greater interference with a person's liberty than a duty to refrain. The law may tell everyone not to run people over; telling everyone that they must spend their time rescuing strangers is a different order of demand.
2. The "why pick on me?" objection. If twenty people watch a drowning and none acts, there is no principled basis for selecting which of them to sue. A duty to refrain identifies its own defendant; a duty to act does not.
3. The difficulty of setting limits. If there is a duty to rescue, how much risk must the rescuer take, and how much expense? The answers are not obvious, and a rule whose content cannot be stated is not a workable rule.
4. The moral and the legal are not identical. The law does not enforce every moral obligation, and declining to do so here is a choice about the limits of legal compulsion rather than an endorsement of the bystander's conduct.
5. Economic considerations. A duty to confer benefits would fall unpredictably and could not be insured against in the ordinary way.
3. Where a Duty to Act Does Arise
The source of the duty | Examples |
A relationship | Parent and child; employer and employee; occupier and visitor; carrier and passenger; school and pupil; doctor and patient; gaoler and prisoner |
Control over the source of the danger | An occupier over the state of his premises; a person in charge of a dangerous thing; a person in control of a vehicle |
Control over the person who causes the harm | Custodial officers over prisoners; an employer over an employee at work; a parent over a child known to be dangerous |
Creation of the danger by the defendant | A person who starts a fire, or digs a hole, or leaves an obstruction, must take steps to deal with it |
An undertaking, express or implied | A person who begins a rescue and then abandons it, leaving the victim worse off; a professional who takes a matter in hand |
Statute | Positive duties imposed by legislation, where on its construction a civil action lies for the breach |
Occupation of land | An occupier may be liable for a danger arising naturally on his land, if he knew of it and failed to abate it |
4. The Third Party Cases
📖 Home Office v. Dorset Yacht Co. Ltd. [1970] AC 1004 Facts Seven borstal trainees were working on an island in Poole Harbour under the supervision of three officers. The officers went to bed, leaving the boys unsupervised, contrary to instructions. The boys escaped, boarded a yacht, and damaged the respondents' vessel in attempting to get away. Held The Home Office owed a duty of care and was liable. Ratio A defendant is not ordinarily liable for the deliberate wrongdoing of a third party. But where he has control over that person and knowledge of the risk that he will cause the very kind of harm that occurred, a duty may arise. The officers had control of the boys and knew of the likelihood of escape and of damage to boats moored nearby, and the damage was therefore within the scope of the risk they were bound to guard against. |
- The general rule remains that there is no liability for the deliberate act of a third party. The case is an exception founded on control and knowledge.
- The same reasoning applies to an occupier who leaves premises in a state that invites the intervention of vandals or trespassers, where their conduct was foreseeable.
- And to an employer who puts an employee in a position from which he can cause harm to others.
5. Assumption of Responsibility
- Hedley Byrne and Co. Ltd. v. Heller and Partners Ltd. [1964] AC 465 is the source. Where the defendant assumes responsibility for the plaintiff's affairs, and the plaintiff reasonably relies on him, a duty of care arises although there is no contract between them.
- It is the principal route by which liability for omissions is imposed, because a person who has assumed responsibility can no longer say that the matter was none of his business.
- It is also the route to liability for pure economic loss, which the law otherwise approaches with great caution.
- Two elements are required: an assumption of responsibility by the defendant, and reasonable reliance by the plaintiff.
- The assumption may be express or implied from the circumstances, and the question is objective: what the defendant's conduct conveyed, not what he privately intended.
- A gratuitous undertaking may suffice. A person who volunteers to do something, and does it badly, may be liable although he was under no obligation to do it at all.
6. The Particular Positive Duties
The duty | On whom, and what it requires |
To warn | Of a danger the defendant knows of and the plaintiff does not. On a manufacturer, of the product's risks and proper use; on a doctor, of the material risks of a procedure; on an occupier, of a concealed danger. A warning may discharge the duty where removing the danger is impracticable |
To inspect | On an occupier, of premises and structures; on a public authority, of roads, drains and buildings in its charge. Municipal Corporation of Delhi v. Subhagwanti turned on a failure to inspect an eighty year old clock tower |
To maintain | On an occupier and on a public authority, to keep what is under their control in a safe condition |
To supervise | On an employer, of the system of work and of inexperienced workers; on a school, of its pupils, measured by the careful parent; on a person controlling another who is a known danger |
To prevent foreseeable criminal acts | Only where the defendant had control over the wrongdoer or over the premises, and knew of the risk: Home Office v. Dorset Yacht |
7. Where the Line Actually Falls
⚠ The question is why it was this defendant's business to act The whole of this topic can be reduced to a single question. A defendant who has made the plaintiff worse off is liable on the ordinary principles, and the omissions rule has nothing to do with it: a driver who fails to brake has not omitted to confer a benefit, he has caused an accident. The rule bites only where the defendant has left the plaintiff as he found him, and the complaint is that he did not improve matters. There the question is: why was it this defendant's business to act? If he stood in a relationship to the plaintiff, or controlled the danger, or controlled the person who caused it, or created the danger himself, or undertook to deal with it, or was placed under a statutory duty, the answer is that it was his business, and the duty follows. If none of those applies, he is a stranger, and the common law leaves him alone. |
8. The Position Stated Shortly
1. The common law imposes a duty not to cause harm and not a duty to confer a benefit.
2. Misfeasance is actionable; nonfeasance ordinarily is not.
3. There is no general duty to rescue, however easy the rescue and however grave the peril.
4. The reasons are autonomy, the absence of any principled way to select a defendant among bystanders, and the impossibility of setting limits to such a duty.
5. A duty to act arises from a relationship, from control over the danger or over the person causing it, from the defendant's own creation of the danger, from an undertaking, and from statute.
6. A defendant is not ordinarily liable for the deliberate wrongdoing of a third party.
7. Home Office v. Dorset Yacht is the exception: control over the wrongdoer and knowledge of the risk may found a duty.
8. Hedley Byrne v. Heller establishes that an assumption of responsibility with reasonable reliance founds a duty though there is no contract.
9. It is the principal route to liability for omissions and for pure economic loss, and a gratuitous undertaking may suffice.
10. The particular positive duties are to warn, to inspect, to maintain, to supervise, and, within narrow limits, to prevent foreseeable criminal acts.