1. What are the criticisms of the traditional approach to omissions liability in negligence
discussed in the article?
In the article "Rationalising Omissions Liability in Negligence" by Sandy Steel, the author critiques the
traditional approach to omissions liability in negligence and highlights several criticisms.
Firstly, the traditional approach to omissions liability in negligence focuses on the defendant's failure
to act, rather than on the claimant's harm. This approach is problematic because it fails to consider
situations where the claimant's harm would have occurred regardless of the defendant's actions.
This means that the defendant is held liable even when their actions had no causal effect on the
claimant's harm.
Secondly, the traditional approach to omissions liability in negligence is inconsistent with other areas
of the law, such as criminal law. In criminal law, there is no liability for omissions unless there is a
legal duty to act. However, in negligence law, the focus is on the defendant's failure to act rather
than on their legal duty to act. This inconsistency can lead to confusion and uncertainty in the law.
Thirdly, the traditional approach to omissions liability in negligence can lead to unfairness and
injustice. For example, a defendant may be held liable for an omission even if they had no
knowledge of the potential harm, or if the harm was caused by the claimant's own actions. This can
result in defendants being held responsible for harms that they had no control over or that were
caused by the claimant's own negligence.
Overall, these criticisms suggest that the traditional approach to omissions liability in negligence is
flawed and in need of reform. The author proposes an alternative approach that takes into account
the defendant's legal duty to act and focuses on the claimant's harm, rather than on the defendant's
failure to act.
2. How does the case of OLL Ltd v Secretary of State for Transport illustrate the challenges of
applying the traditional approach to omissions liability in negligence in a complex and
interconnected world?
Eight children with a teacher and two instructors set off on a canoeing trip but did not
return. They got into difficulties at sea. Two became separated from the rest. The canoes
capsized and sank. Some tried to swim ashore. Two more members became separated.
They were all eventually rescued between 5.30 and 6.40 pm, but four of the children died
and the other members of the party suffered severe hypothermia and shock. Proceedings
were brought against the organisers of the trip, who sought redress against the Secretary
of State as the minister responsible for HM Coastguard. The defendant sought a strike out
of the claim.
Held: The claim was struck out. A coastguard owed no duty of care to those in distress
even in giving a negligent mis-direction to non-employees. The claimant relied on an
internal manual and orders intended and designed to ensure that the coastguard
discharged its responsibilities properly, efficiently and effectively. It was said that the
coastguard had encouraged an expectation in the minds of the public that they would
respond promptly and appropriately to marine emergencies. It had thereby assumed
responsibilities to the public for the execution of search and rescue missions in coastal
waters.
It was submitted that a duty of care arose from the expectation that the coast guard would
act carefully, the expectation being created by ministerial pronouncement, published
procedures and a common knowledge that the coast guard would act when it knows of an
emergency at sea. These submissions were rejected. They strained what Lord Hoffmann
had said in Stovin v Wise beyond breaking point.
, The problem of overinclusiveness – what happens when you include more than necessary.
Consider OLL Ltd v Secretary of State for Transport. In this case May J. held that no duty of
care arose on the part of the defendant coastguard when it misdirected other rescue
services in the co-ordination of a rescue attempt. Thus, although the defendant did
something which made the victim worse off than they would have been had the defendant
not been present, they were under no duty of care. Rather, a duty only arose not to "inflict
direct physical injury" and misdirecting "other rescuers" could not be so classified.
The objection, then, is that No Benefit 4, in combination with a revised version of the Acts
principle —which focuses upon whether the presence of A’s body or resources made B
worse off—would entail that a duty should have been owed in OLL.
The case is consistent with the general principle that one is under a duty of care not to
render persons foreseeably physically worse *L.Q.R. 489 off than if one had not intervened.
The argument is that the defendant coastguard did not render the victims worse off than if
they had not intervened because all public rescue services should be treated as one single
legal entity. 20 The defendant’s act did not render the claimant worse off than if no public
rescuer had intervened. This is a somewhat strained interpretation of OLL, however, as May
J. does not distinguish between public and private rescuers and one private rescuer was
alleged to have been misdirected in the case. 21 Moreover, there seems to be no normative
justification for grouping together all public rescue services in so far as they are distinct legal
persons
Better view is that OLL is incorrect. A further reason may be given. It is arbitrary to
distinguish between cases where a person prevents an object from preventing a risk
materialising and cases where a person prevents a person from preventing a risk
materialising. It is clear that there can be a duty of care in the former type of case. If the fire
brigade turn off a sprinkler system with the result that damage occurs which would not have
occurred if they had not intervened at all, then they can be liable in respect of that damage.
It is not clear why one should distinguish between turning off a sprinkler and misdirecting a
person.
3. What are the potential advantages and disadvantages of adopting the proposed approach
to omissions liability in negligence, and how might this approach impact the fairness and
efficiency of the law?
The proposed approach to omissions liability in negligence aims to establish a clearer and
more consistent framework for determining when a duty to act arises in cases of omission.
Some potential advantages of this approach include increased clarity and predictability in
the law, as well as a more flexible and nuanced understanding of the circumstances in which
a duty to act might arise. This could lead to more accurate and consistent outcomes in cases
involving omissions liability.
However, there are also potential disadvantages to this approach. For example, it may be
difficult to apply the proposed framework in practice, particularly in complex and
interconnected situations where the causal chain of events is not straightforward.
Additionally, there is a risk that the proposed approach could result in an overextension of
liability, as individuals and organizations are held responsible for harm that they may not
have been able to reasonably foresee or prevent.
In terms of fairness and efficiency, the proposed approach has the potential to strike a
better balance between these two values. By providing a clearer and more consistent
discussed in the article?
In the article "Rationalising Omissions Liability in Negligence" by Sandy Steel, the author critiques the
traditional approach to omissions liability in negligence and highlights several criticisms.
Firstly, the traditional approach to omissions liability in negligence focuses on the defendant's failure
to act, rather than on the claimant's harm. This approach is problematic because it fails to consider
situations where the claimant's harm would have occurred regardless of the defendant's actions.
This means that the defendant is held liable even when their actions had no causal effect on the
claimant's harm.
Secondly, the traditional approach to omissions liability in negligence is inconsistent with other areas
of the law, such as criminal law. In criminal law, there is no liability for omissions unless there is a
legal duty to act. However, in negligence law, the focus is on the defendant's failure to act rather
than on their legal duty to act. This inconsistency can lead to confusion and uncertainty in the law.
Thirdly, the traditional approach to omissions liability in negligence can lead to unfairness and
injustice. For example, a defendant may be held liable for an omission even if they had no
knowledge of the potential harm, or if the harm was caused by the claimant's own actions. This can
result in defendants being held responsible for harms that they had no control over or that were
caused by the claimant's own negligence.
Overall, these criticisms suggest that the traditional approach to omissions liability in negligence is
flawed and in need of reform. The author proposes an alternative approach that takes into account
the defendant's legal duty to act and focuses on the claimant's harm, rather than on the defendant's
failure to act.
2. How does the case of OLL Ltd v Secretary of State for Transport illustrate the challenges of
applying the traditional approach to omissions liability in negligence in a complex and
interconnected world?
Eight children with a teacher and two instructors set off on a canoeing trip but did not
return. They got into difficulties at sea. Two became separated from the rest. The canoes
capsized and sank. Some tried to swim ashore. Two more members became separated.
They were all eventually rescued between 5.30 and 6.40 pm, but four of the children died
and the other members of the party suffered severe hypothermia and shock. Proceedings
were brought against the organisers of the trip, who sought redress against the Secretary
of State as the minister responsible for HM Coastguard. The defendant sought a strike out
of the claim.
Held: The claim was struck out. A coastguard owed no duty of care to those in distress
even in giving a negligent mis-direction to non-employees. The claimant relied on an
internal manual and orders intended and designed to ensure that the coastguard
discharged its responsibilities properly, efficiently and effectively. It was said that the
coastguard had encouraged an expectation in the minds of the public that they would
respond promptly and appropriately to marine emergencies. It had thereby assumed
responsibilities to the public for the execution of search and rescue missions in coastal
waters.
It was submitted that a duty of care arose from the expectation that the coast guard would
act carefully, the expectation being created by ministerial pronouncement, published
procedures and a common knowledge that the coast guard would act when it knows of an
emergency at sea. These submissions were rejected. They strained what Lord Hoffmann
had said in Stovin v Wise beyond breaking point.
, The problem of overinclusiveness – what happens when you include more than necessary.
Consider OLL Ltd v Secretary of State for Transport. In this case May J. held that no duty of
care arose on the part of the defendant coastguard when it misdirected other rescue
services in the co-ordination of a rescue attempt. Thus, although the defendant did
something which made the victim worse off than they would have been had the defendant
not been present, they were under no duty of care. Rather, a duty only arose not to "inflict
direct physical injury" and misdirecting "other rescuers" could not be so classified.
The objection, then, is that No Benefit 4, in combination with a revised version of the Acts
principle —which focuses upon whether the presence of A’s body or resources made B
worse off—would entail that a duty should have been owed in OLL.
The case is consistent with the general principle that one is under a duty of care not to
render persons foreseeably physically worse *L.Q.R. 489 off than if one had not intervened.
The argument is that the defendant coastguard did not render the victims worse off than if
they had not intervened because all public rescue services should be treated as one single
legal entity. 20 The defendant’s act did not render the claimant worse off than if no public
rescuer had intervened. This is a somewhat strained interpretation of OLL, however, as May
J. does not distinguish between public and private rescuers and one private rescuer was
alleged to have been misdirected in the case. 21 Moreover, there seems to be no normative
justification for grouping together all public rescue services in so far as they are distinct legal
persons
Better view is that OLL is incorrect. A further reason may be given. It is arbitrary to
distinguish between cases where a person prevents an object from preventing a risk
materialising and cases where a person prevents a person from preventing a risk
materialising. It is clear that there can be a duty of care in the former type of case. If the fire
brigade turn off a sprinkler system with the result that damage occurs which would not have
occurred if they had not intervened at all, then they can be liable in respect of that damage.
It is not clear why one should distinguish between turning off a sprinkler and misdirecting a
person.
3. What are the potential advantages and disadvantages of adopting the proposed approach
to omissions liability in negligence, and how might this approach impact the fairness and
efficiency of the law?
The proposed approach to omissions liability in negligence aims to establish a clearer and
more consistent framework for determining when a duty to act arises in cases of omission.
Some potential advantages of this approach include increased clarity and predictability in
the law, as well as a more flexible and nuanced understanding of the circumstances in which
a duty to act might arise. This could lead to more accurate and consistent outcomes in cases
involving omissions liability.
However, there are also potential disadvantages to this approach. For example, it may be
difficult to apply the proposed framework in practice, particularly in complex and
interconnected situations where the causal chain of events is not straightforward.
Additionally, there is a risk that the proposed approach could result in an overextension of
liability, as individuals and organizations are held responsible for harm that they may not
have been able to reasonably foresee or prevent.
In terms of fairness and efficiency, the proposed approach has the potential to strike a
better balance between these two values. By providing a clearer and more consistent
