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Cambridge Student Law Review 10 NEGLIGENCE LIABILITY FOR [2006] Cambridge Student Law Review 10 NEGLIGENCE LIABILITY FOR OMISSIONS – SOME FUNDAMENTAL DISTINCTIONS Nicholas J. McBride* The English law of negligence treats omissions as special. A claimant will find it far easier to bring a claim in negligence against a defendant if an act of the defendant caused her harm than she would if she suffered harm as a result of an omission on the part of the defendant. In this article, I don’t want to defend the law of negligence’s treatment of omissions – at least, not directly. Instead, I simply want to set out some important distinctions that students should bear in mind in trying to understand and evaluate this area of the law. I. Acts / Omissions It would make no sense for the law of negligence to treat omissions as special if it were not possible to distinguish between acts and omissions. In fact, it is possible to draw a distinction between the two. Acts make things worse. Omissions fail to make things better. In Sutradhar v. Natural Environment Research Council,1 the claimant was made sick drinking water from a well in Bangladesh that was poisoned with arsenic. The defendants had conducted a survey of the water in the area where the claimant lived and their report had been passed on to the Bangladeshi government. The report failed to mention that there was arsenic in the water. Had it done so, the Ban- gladeshi government would have taken steps to stop people like the claimant drinking the poisoned water. The claimant sued the defendants in negligence for compensation for the fact that he had been poisoned. Were the defendants guilty of an act or an omission here? The answer is – an omission.2 The defen- dants’ report did not make things worse for the claimant. The Bangladeshi government may have been misled by the defendants’ report into thinking that the water in the area where the claimant lived was safe to drink. However, there was no evidence that had the government not received the defendants’ report, it would have detected the problem with the water drunk by the claimant and saved him from drinking it. So – before the defendants conducted their survey and filed their report, the status quo was that the claimant would at some point in the future be poisoned from drinking the water in his area. The defendants’ survey and report did not alter that status quo in any respect. So the defendants did not * Fellow and Director of Studies in Law, Pembroke College, Cambridge. My thanks to Roderick Bagshaw and Robert Stevens for their comments on an earlier draft of this article. All remaining errors are, of course, my responsibility alone. 1 [2004] P.N.L.R. 0. 2 Given that all the defendants were guilty of in Sutradhar was an omission, it is not surprising that Kennedy LJ (with the agreement of Wall LJ) dismissed the claimant’s claim in negligence against the defendants on the ground that there was no ‘prox- imity’ between the parties (ibid., at [24]). In negligence cases involving an omission on the part of the defendant, the defendant will usually only be held liable to pay compensation to the claimant if there was a special relationship between the parties. Ibid., at [10], [45] and [8]. Strangely enough, it was counsel for the claimant who insisted on bringing to the attention of the Court the fact that the Bangladeshi government was so poor, it could not afford to conduct its own surveys of the water in Bangladesh. He must have thought that doing this would help the claimant’s claim. In fact, it was fatal to it. If he had been able to argue that the problem with the water drunk by the claimant would have been detected by the Bangladeshi government had it not been lulled into a false sense of security by the defendants’ report, then the claimant’s case would have been much stronger: see below note 15 and accompanying text. C.S.L.R. Negligence Liability for Omissions 11 make the claimant worse off. In acting as they did, the defendants merely missed an opportunity to save the claimant from being poisoned. II. My Rights / Other People’s Rights English tort law draws an important distinction between the case where I have suffered loss because you have violated my rights and the case where I have suffered loss because you have violated someone else’s rights. In the first case, I will usually be entitled to sue you in tort for compensation for the loss that I have suffered. In the second case, tort law won’t normally allow me to sue you for compensation.5 It follows that if I want to sue you in tort for compensation for some loss that I have suffered, it won’t usually do me any good to show that I suffered that loss because you violated someone else’s rights; I will normally have to show that I suffered that loss because you violated my rights.6 For example, suppose that out of the kindness of his heart, Charlie pays Alex – a former martial arts champion – to patrol the streets of Cambridge at night and protect people who are being attacked. One night, Alex was out on her beat and she saw me being attacked. She did nothing to help me. I want to sue Alex in negligence for compensation for the injuries I suffered as a result of being attacked. In failing to help me, Alex undoubtedly violated Charlie’s rights. Charlie paid Alex good money to help save people like me from being attacked, and as a result he had a right that she protect me from being attacked. But the fact that Alex violated Charlie’s rights in failing to save me from being attacked won’t help me win my case. I’ll have to show that I had a right that Alex save me from being attacked. Now – substitute ‘the government’ for ‘Charlie’ in the above situation and imagine that Alex was a police officer. It is important to recognise that making these changes has no effect whatsoever on the fundamentals of what has to be established if I want to sue Alex for compensation. If I want to sue police 4 When I use the word “right” in this article, I mean “legal right”. I will have a right that you do x if the law imposes a duty on you to do x and it does so for my benefit. If the law imposes such a duty on you for my benefit, we can say that you owe me a duty to do x. So if one person says that, “A is held liable in tort to pay compensation to B because he violated B’s rights” and another person says that, “A is held liable to B because he breached a duty owed to B”, they are saying exactly the same thing. With some torts (such as battery or trespass to land) the courts tend to describe the basis of a defendant’s liability as being the fact that he violated the claimant’s rights. With other torts – notably negligence – the courts tend to say that a defendant’s liability arises out of the fact that he breached a duty owed to the claimant. But, in the latter case, the courts could equally well say – as I am doing in this article – that the defendant’s liability arises out of the fact that he violated the claimant’s rights. It’s merely a different way of saying the same thing. 5 Suppose, for example, that A beats me up and as a result I have to take a lot of time off work, with the result that my em- ployer C suffers loss. C won’t be able to sue A in tort for compensation for his loss because in beating me up, A only violated my rights, not C’s. 6 Some academics would disagree with this statement. Those who adopt afault-based view of tort law say that if I want to sue you in tort for compensation for some loss that I have suffered, it will usually be sufficient for me to show that you were faultat for the fact that I suffered that loss. There’s no need for me to go the extra mile and show that you violated myrights in acting as you did. However, the fault-based view of tort law is seriously faulty. There are many situations (for examples, see D v. East Berkshire Community Health NHS Trust [2005] 2 A.C. 7, at [100]) where I will not be allowed to sue you in tort for compensation for some loss that I have suffered even though you were plainly at fault for the fact that I suffered that loss. Adherents to the fault-based view of tort law usually say that the reason you will not be held liable in those situations – contrary to the expectations created by their theory – is that ‘public policy’ demands that you not be held liable. But there are many situations of no-liability-despite-fault where this explanation does not work. For example, in the situation set out in note 5, above, it is hard to see why ‘public policy’ demands that C not be allowed to sue A in tort. A far more satisfying explanation of why A is not held liable to C is that A has not violated C’s rights. See Zipursky, “Rights, Wrongs and Recourse in the Law of Torts” (1998) 51 Vanderbilt L.R.
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