Furthermore, the above two categories under the assumption of responsibility demonstrate that there is a correlation of fairness for imposing liability for omission. It is further necessary to determine third parties in relation to the omissions. Generally, third party omissions would not rise to liability in tort of negligence as they do not owe a duty of care to that specific individual. Although, the exceptions to this rule arises from when “the defendant has a duty to control the third party or a duty to safeguard a dangerous thing”. Firstly, Home Office v Dorset Yacht Co Ltd demonstrates that a ‘defendant has a duty to control the third party’. The case concerned a supervision of young offenders while they carried out the work. Subsequently,
…show more content…
This can be demonstrated through the Osman v United Kingdom case. The claimants argued that the police had an assumed responsibility for their safety. Although, it was contended that public authorities will be held liable for their omission only if they knew of the situation or were required to have known of the existence of a real and immediate threat. However, if this rationale can be justified to be fair, then in the Smiths case, why was it held that the police did not have an assumed responsibility to the claimant, when the claimant had made his situation known to the police about the threats and previous violence? Craig argues that this blanket of immunity developed by the Hill v Chief Constable of West Yorkshire Police case is not fair; because the position of a public body vested with discretionary powers is not the same as that of a private individual. He argues the reasons for the reluctance to impose liability in cases of pure omissions concerning private individuals, should not be transferable to public bodies which are granted discretionary powers. By contrast, McIvor disagrees with Craig and argues that if public authorities were liable for pure omissions, it would impose a defensive approach, whereby individuals will take additional time and resources to eliminate the most unlikely risk, which would be a detrimental threat to the …show more content…
The three stage test outlined in Caparo , delivers the foundation for the fairness rationale, as the third stage looks at whether it is ‘fair, just or reasonable’ to impose liability. This is imperative as social norms change on a regular basis. Thus, enabling the law to be adequate with modern public policy and to ensure a fair and just judgement is delivered. Hence, following these elements established through the three stage test, assumption of responsibility as an exception to the exclusionary rule for omissions sets out categories to which impose liability for omission. Firstly, the essay looked at the category of actions, where the defendant agrees to act or voluntarily accepts a responsibility, but later fails to do so. It is argued that this category demonstrates assumption of responsibility as fair because taking upon a responsibility, voluntary or contractually renders one to rely upon that person to deliver that specific care. If one could later fail to carry out the responsibility and this omission caused harm, it would not deter people from committing such torts if one was not imposed with liability. Secondly, the category of special relationships has been conceded here to be fair, as having that proximity and causing an omission is not right or justifiable.
This can be demonstrated through the Osman v United Kingdom case. The claimants argued that the police had an assumed responsibility for their safety. Although, it was contended that public authorities will be held liable for their omission only if they knew of the situation or were required to have known of the existence of a real and immediate threat. However, if this rationale can be justified to be fair, then in the Smiths case, why was it held that the police did not have an assumed responsibility to the claimant, when the claimant had made his situation known to the police about the threats and previous violence? Craig argues that this blanket of immunity developed by the Hill v Chief Constable of West Yorkshire Police case is not fair; because the position of a public body vested with discretionary powers is not the same as that of a private individual. He argues the reasons for the reluctance to impose liability in cases of pure omissions concerning private individuals, should not be transferable to public bodies which are granted discretionary powers. By contrast, McIvor disagrees with Craig and argues that if public authorities were liable for pure omissions, it would impose a defensive approach, whereby individuals will take additional time and resources to eliminate the most unlikely risk, which would be a detrimental threat to the …show more content…
The three stage test outlined in Caparo , delivers the foundation for the fairness rationale, as the third stage looks at whether it is ‘fair, just or reasonable’ to impose liability. This is imperative as social norms change on a regular basis. Thus, enabling the law to be adequate with modern public policy and to ensure a fair and just judgement is delivered. Hence, following these elements established through the three stage test, assumption of responsibility as an exception to the exclusionary rule for omissions sets out categories to which impose liability for omission. Firstly, the essay looked at the category of actions, where the defendant agrees to act or voluntarily accepts a responsibility, but later fails to do so. It is argued that this category demonstrates assumption of responsibility as fair because taking upon a responsibility, voluntary or contractually renders one to rely upon that person to deliver that specific care. If one could later fail to carry out the responsibility and this omission caused harm, it would not deter people from committing such torts if one was not imposed with liability. Secondly, the category of special relationships has been conceded here to be fair, as having that proximity and causing an omission is not right or justifiable.