The omissions principle: when a duty to prevent harm arises
Your client wants to understand when English law (England and Wales) imposes a duty of care on a person to prevent harm to another that the person did not create. In each situation below, assume the harm was foreseeable, the person could easily have prevented it, and they did nothing.
In which of the following situations is a duty of care to prevent the harm most likely to arise?
Choose one answer to see the reasoning.
Worked answer
Correct answer D: A childminder who has agreed to look after a four-year-old for the afternoon fails to stop the child running from the garden into a busy road.
THE RULE TO REMEMBER
There is generally no duty to prevent harm from a danger one did not create, unless one assumed responsibility, prevented others helping, controlled the danger, or holds a protective status.
The omissions principle: when a duty to prevent harm arises
The common law does not generally impose liability for pure omissions. As summarised in Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4, a person is not under a duty to take care to prevent harm to another through a source of danger they did not create unless (i) they have assumed responsibility to protect that person, (ii) they have prevented someone else from protecting them, (iii) they have a special level of control over the source of danger, or (iv) their status creates an obligation to protect. The childminder has expressly agreed to look after the child, so she has assumed responsibility for the child's safety. That brings her within the first exception, and she owes a duty to take reasonable care to protect the child from foreseeable dangers such as the road. In each of the other situations the person simply failed to intervene in a danger created by someone or something else, with no assumption of responsibility, control or protective status.
Why A is wrong: The shopper did not create the spill and has no control over the premises or responsibility for other customers; this is a pure omission.
Why B is wrong: There is no general duty to protect a neighbour from a third party's criminal act, even when it is foreseen.
Why C is wrong: English law imposes no general duty to rescue a stranger, however easy the rescue would be.
Why E is wrong: The pedestrian did not own or control the dog and assumed no responsibility for the cyclist, so failing to intervene is a pure omission.
A little more practice done.
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