Learning Outcomes
This article outlines the exceptions to the general principle that there is no duty of care in negligence for omissions (failures to act). It focuses on situations where a duty may arise due to control exercised over another party, an assumption of responsibility towards the claimant, or the creation or adoption of a risk by the defendant. Your understanding of these specific circumstances will assist you in identifying when a duty of care might exist despite an apparent omission, enabling application to SQE1 assessment scenarios. In particular, you should be able to distinguish true omissions from positive acts, analyse relationships that generate a duty to act (for example, custodial control or voluntary undertakings), evaluate reliance and foreseeability in assumption of responsibility cases, and assess when a defendant’s involvement with a source of danger makes it fair and reasonable to impose a positive duty to take steps to prevent harm. You should also be able to place these exceptions within the broader duty framework (incremental development by analogy and the Caparo approach in genuinely novel situations), and recognise relevant public policy limits when the defendant is a public authority.
SQE1 Syllabus
For SQE1, you are required to understand the limited circumstances in which a positive duty to act might be imposed in the tort of negligence, including the exceptions to the general rule against liability for omissions, with a focus on the following syllabus points:
- The general principle that English law does not impose liability for pure omissions.
- Situations where a duty to act positively may arise due to a relationship of control (e.g., over the claimant or a third party).
- Circumstances giving rise to a duty based on an assumption of responsibility for the claimant's welfare.
- Instances where a duty is imposed because the defendant created or adopted a source of risk or danger.
- How foreseeability, proximity, and fairness interact with these exceptions, and the incremental approach by analogy with established categories before resorting to Caparo.
- The interface between omissions exceptions and liability for third-party acts (e.g., the Smith v Littlewoods categories).
- Public authority defendants: when policy considerations limit the imposition of a duty to act, and why merely having a statutory power (without more) does not itself create a duty.
- The difference between creating a danger and attempting (competently or incompetently) to mitigate one; and when positive acts that worsen a situation generate liability.
- Applying these principles to factual scenarios to determine if a duty of care exists despite an omission.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
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Under English law, is there a general positive duty to rescue a stranger in danger?
- Yes, if the rescue is reasonably practicable.
- Yes, but only if there is a prior contractual relationship.
- No, there is generally no positive duty to act.
- No, unless the potential rescuer is a public servant like a police officer.
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Which of the following scenarios is most likely to give rise to a duty of care based on 'control'?
- A bystander witnessing a fight but not intervening.
- A prison authority failing to prevent inmates from escaping and causing damage.
- A shopkeeper failing to warn a customer about a sale ending soon.
- A homeowner failing to clear snow from the public pavement outside their house.
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A duty of care based on 'assumption of responsibility' typically requires:
- A pre-existing contractual relationship between the parties.
- The defendant possessing a specific professional skill.
- Voluntary undertaking by the defendant and reliance by the claimant.
- The claimant paying the defendant for the assistance provided.
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Which legal principle is most relevant where a defendant fails to extinguish a fire started by lightning on their land, which subsequently spreads to a neighbour's property?
- Vicarious liability.
- Assumption of responsibility.
- Creation or adoption of risk.
- Res ipsa loquitur.
Introduction
The tort of negligence generally imposes liability for positive wrongful acts that cause harm. A fundamental principle is that the common law does not typically impose a positive duty on individuals to act to prevent harm or confer benefits on others. This means there is usually no liability for pure omissions – failures to act. If you see someone drowning and choose not to help, the law generally imposes no liability for that failure.
However, this general principle is subject to important exceptions. A duty of care requiring positive action may arise in specific circumstances where the relationship between the defendant and the claimant, or the defendant's involvement with the source of danger, justifies imposing such a duty. This article examines the key exceptions where a duty to act may be found: control, assumption of responsibility, and the creation or adoption of risk. These exceptions sit within the broader duty framework: courts first reason incrementally and by analogy with established categories; only if a case is genuinely novel will the Caparo approach (foreseeability, proximity, and whether it is fair, just and reasonable) be used. Policy considerations are relevant, especially for public authority defendants. It is also important to distinguish true omissions from positive acts that worsen the situation, because positive acts may engage ordinary negligence principles without needing an exceptions analysis.
Exceptions to the General Rule on Omissions
While the default position is no liability for failing to act, the courts have recognised situations where fairness, justice, and the nature of the relationship or circumstances demand the imposition of a positive duty.
Control
A duty to act positively may arise where the defendant exercises a sufficient degree of control over the claimant or a third party whose actions pose a risk. This control must go beyond mere ability to influence and often stems from a specific relationship.
Key Term: Control
In the context of omissions, control refers to a situation where one party has a sufficient level of authority or charge over another person or a dangerous situation, giving rise to a duty to act positively to prevent foreseeable harm.
The control exception typically arises where the defendant has assumed responsibility for supervising or restricting the conduct of another in circumstances that create a predictable risk of harm to third parties. The classic illustration is custodial or supervisory control over individuals known to pose a danger.
Examples where control can impose a duty include:
- Parent/Guardian and Child: Parents generally owe a duty to take reasonable steps to control their young children to prevent them causing foreseeable harm to others (Carmarthenshire County Council v Lewis [1955] AC 549 (HL)). The relationship is one of practical authority over a vulnerable person whose instinctive actions may cause immediate danger.
- Employer/Supervisor and Persons in Custody or Care: Institutions exercising control over individuals (e.g., prisons, young offenders’ institutions, hospitals with detained patients) may owe a duty to third parties affected by failures to supervise or prevent escape. In Home Office v Dorset Yacht Co Ltd [1970] AC 1004 (HL), Borstal officers were held liable when juveniles escaped from custody and damaged property; the officers’ control and the foreseeability of harm to nearby property were decisive.
- School and Pupils: Teachers and schools are often said to be in loco parentis during school hours; they owe duties to take reasonable steps to prevent foreseeable harm resulting from pupil behaviour, especially where risks are well known (e.g., dangerous tendencies of particular pupils).
The rationale is not that the defendant must guarantee safety, but that reasonable measures are required in proportion to the risks and the degree of effective control. Foreseeability of the type of harm and proximity to those likely to be affected are important in delimiting the duty’s scope.
Public authorities can be subject to control-based duties, but policy considerations may limit duty. The court will consider whether imposing a duty would unduly hinder the function of the authority or require an undesirable allocation of resources. The presence of control and a known risk, however, remains a powerful reason to impose a duty to act.
Worked Example 1.1
A school supervises children during a playground break. One child, known for aggressive behaviour, pushes another child, causing injury. The injured child's parents wish to sue the school authority.
Would the school authority likely owe a duty of care?
Answer:
Yes, likely. The school authority exercises control over the children while they are under its supervision. If the school knew or ought to have known of the aggressive child's tendencies and the risk posed, it would likely owe a duty to take reasonable steps (positive action) to prevent such foreseeable harm occurring during supervised activities. Failure to adequately supervise could constitute a breach of this duty.
Control does not mean the defendant is liable for every harmful act that occurs, nor does it impose a guarantee. The duty is one to take reasonable care in light of the known risks. For example, reasonable staffing ratios, appropriate supervision, and interventions tailored to the risk profile of individuals under control are typical measures.
Worked Example 1.2
A secure psychiatric unit admits a patient with a history of violent outbursts. The patient escapes through an insecure side door and assaults a passer-by in the hospital grounds. The injured person sues the hospital trust.
Answer:
A duty is likely to be found. The trust exercised control over the patient and knew, or ought to have known, of the risk of violent behaviour if the patient escaped. Reasonable steps to prevent escape (e.g., maintaining secure doors, adequate staffing and monitoring) are expected in light of the risk. The harm to a nearby passer-by was foreseeable and proximate; failure to secure the unit may amount to a negligent omission within the control exception.
Assumption of Responsibility
A duty to act can arise where a defendant has voluntarily assumed responsibility for the claimant's safety or well-being, leading the claimant to rely on that assumption. This does not necessarily require a contract; the assumption can be express or implied by conduct. What matters is the defendant’s undertaking and the claimant’s reasonable reliance on it.
Key Term: Assumption of Responsibility
An exception to the rule on omissions where a defendant, through words or conduct, takes on a duty to exercise reasonable care for the claimant's welfare, and the claimant relies on this undertaking.
Key elements often include:
- A voluntary undertaking by the defendant (express or implied).
- Reliance by the claimant on that undertaking.
- The defendant knew or ought to have known the claimant was relying on them.
Assumption of responsibility is well recognised in negligent misstatement cases (Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 (HL)), but the principle extends to physical harm and practical assistance. Once a defendant takes charge of a claimant, a duty often arises to exercise reasonable care in doing so.
A leading example is Barrett v Ministry of Defence [1995] 1 WLR 1217 (CA). Naval personnel took an intoxicated colleague back to his bunk; they failed to supervise appropriately, and he choked on his vomit. The court held that while no duty existed to stop him drinking, a duty did arise from the point responsibility was assumed for his care. The failure to carry out the assumed responsibility with reasonable care grounded liability.
These cases emphasise the significance of reliance. If the claimant reasonably trusts the defendant’s undertaking and refrains from taking other precautions, a duty arises to act with reasonable care. If the defendant’s involvement is compelled by law (for example, a bank operating under a freezing order), assumption is less likely because the undertaking lacks voluntariness (see Customs & Excise Commissioners v Barclays Bank [2007] 1 AC 181).
For public services, assumption of responsibility may arise where services accept a request for help and the claimant reasonably relies on that acceptance. Once responsibility is assumed, failure to act may be an actionable omission.
Worked Example 1.3
Sarah volunteers to help her elderly neighbour, David, with his shopping during bad weather. She tells him she will call every Tuesday to take his order. One Tuesday, she forgets to call. David, relying on her, does not make other arrangements and runs out of essential supplies.
Does Sarah owe David a duty of care?
Answer:
Possibly. Sarah voluntarily assumed responsibility for David's shopping on Tuesdays, and David appears to have relied on this. Her failure to call was an omission. A court would consider whether her undertaking was sufficiently clear and whether David's reliance was reasonable. If so, her omission (forgetting to call) could constitute a breach of an assumed duty.
Worked Example 1.4
A parent at a pool party announces, “I’ll keep an eye on the children in the shallow area,” and takes up a position at the poolside. Others rely on this and relax their own supervision. The parent becomes distracted, and a child gets into difficulty and suffers injury.
Answer:
A duty is likely to be found. The parent voluntarily assumed responsibility to supervise a defined risk area, and others reasonably relied on that undertaking. The failure to supervise with reasonable care may be an actionable omission. The scope and standard of the duty will reflect the undertaking and the foreseeable risk in that setting.
In all assumption cases, scope matters. A defendant’s duty is defined by the undertaking. If an undertaking is limited (in time, place, or what is covered), the duty mirrors that limitation. Reliance must also be reasonable in the circumstances.
Creation or Adoption of Risk
A duty to act may be imposed where the defendant created a source of danger or adopted a risk created by a third party or natural event. If a person creates a danger, they are generally under a duty to take reasonable steps to prevent that danger causing harm. Similarly, if a defendant knows of a danger on their property (even if not of their making) and does nothing, the law may treat them as having adopted the risk and impose a duty to abate it.
Key Term: Creation or Adoption of Risk
A situation where a duty to act arises because the defendant either brought about a source of danger or knew of a danger created by a third party/nature on their property and failed to take reasonable steps to mitigate it.
- Creation of Danger: Where the defendant’s conduct brings into being a hazardous situation, a positive duty arises to take reasonable steps to prevent that hazard from causing foreseeable harm to others. For example, allowing horses to bolt onto a busy street creates a danger; reasonable steps to restrain the horses are required (Haynes v Harwood [1935] 1 KB 146 (CA)).
- Adoption of Risk: This applies where a danger is created on the defendant's land by a third party (e.g., trespassers) or a natural event (e.g., lightning), and the defendant, knowing of the danger (or having reasonable grounds to believe it exists), fails to take reasonable steps to abate it.
The principle regarding adoption of risk was established in Goldman v Hargrave [1967] 1 AC 645 (PC). A tree on the defendant's land was struck by lightning and caught fire. The defendant had the tree felled but took insufficient steps to extinguish the fire, which later revived and spread to the claimant's land. The defendant was held liable, not for starting the fire, but for failing to take reasonable steps to deal with a known hazard on his land that arose without his fault. The court considered the defendant's resources and capacity when assessing what steps were 'reasonable'.
Importantly, knowledge is central to adoption. Liability turns on awareness (actual or constructive) of the danger and a failure to take reasonable steps. Resource constraints and practicalities are relevant to reasonableness, but doing nothing at all in the face of a known, serious hazard is rarely defensible.
The courts have distinguished adoption of risk from mere exposure to risk in the community at large. A defendant who knows of a specific hazard within their sphere of responsibility and does not act is more likely to be held to have adopted the risk. Conversely, where a defendant’s conduct is passive, and third-party wrongdoing is not reasonably foreseeable, a duty may not be imposed (see Topp v London Country Bus Ltd [1993] 1 WLR 976, where leaving a bus with keys in the ignition near a pub for a short period did not, on the facts, impose a duty for the criminal acts of a thief who later caused harm).
The courts also distinguish between:
- Doing nothing about a known hazard on your property (more likely to be actionable as adoption), and
- Attempting to help but not making things worse (which may not impose liability for the omission).
Where a defendant’s positive act makes the situation worse, ordinary negligence principles apply. For example, a fire brigade that turns off functioning sprinklers and thereby increases damage can be liable for a positive act causing harm.
Worked Example 1.5
A local council owns a park containing a pond. Over time, rubbish accumulates in one corner, creating a hidden hazard beneath the water surface. The council is aware of the rubbish but takes no action to clear it. A child paddling in the pond cuts their foot severely on submerged broken glass.
Does the council owe a duty of care?
Answer:
Likely yes. Although the council did not create the hazard (it was likely caused by third parties littering), it knew or ought to have known of the dangerous accumulation of rubbish on its land. By failing to take reasonable steps to remove this known hazard, the council could be seen as having 'adopted' the risk, giving rise to a duty to lawful visitors (and potentially trespassers under the Occupiers' Liability Act 1984, depending on circumstances) regarding the state of the premises.
Worked Example 1.6
A warehouse owner discovers that trespassers have broken fencing and left an open pit near a public footpath. The owner does nothing for weeks. A jogger trips and falls into the pit, suffering injuries.
Answer:
A duty is likely. The owner knew or ought to have known of the danger on the land. Failing to take reasonable steps (e.g., re-fencing, warning signs, filling the pit or restricting access) may amount to adoption of the risk. The harm to passers-by was foreseeable; proximity arises from the location; reasonable steps were available.
Worked Example 1.7
A bus company leaves a bus in a lay-by awaiting a relief driver, with keys in the ignition for a short period. A thief steals the bus and later injures a pedestrian. The pedestrian sues the bus company for failing to secure the vehicle.
Answer:
Liability is unlikely on these facts. A duty to prevent third-party criminal acts generally requires foreseeability of the specific risk. If there was no history of thefts in the area and no particular reason to foresee the bus would be stolen and driven dangerously, the court may find insufficient proximity or foreseeability to impose a duty for the thief’s subsequent torts. Each case turns on its facts: a duty is more likely where the defendant’s conduct creates a specific source of danger, and interference by third parties is reasonably foreseeable.
Exam Warning
Remember the default rule: generally, no liability for omissions. Always start by considering if the situation falls into one of these established exceptions. Do not assume a duty exists simply because the defendant could have acted. Focus on whether there was control, an assumption of responsibility, or creation/adoption of risk. Distinguish true omissions from positive acts that worsen the situation; positive acts engage ordinary negligence principles. When the defendant is a public authority, policy considerations and statutory context matter: a mere statutory power does not of itself create a duty to act. Foreseeability and proximity remain central across all exceptions.
Key Point Checklist
This article has covered the following key knowledge points:
- The general common law principle is that there is no liability in negligence for a pure omission (a failure to act).
- A duty to act may arise where the defendant exercises sufficient control over the claimant or a third party who causes harm (e.g., custodial or supervisory relationships) and the risk of harm is foreseeable (Home Office v Dorset Yacht Co).
- A duty to act may arise where the defendant voluntarily assumes responsibility for the claimant’s safety or welfare, and the claimant reasonably relies on this undertaking (Barrett v MoD; Hedley Byrne principles by analogy).
- A duty to take positive steps can be imposed if the defendant created a source of danger; reasonable steps must be taken to prevent foreseeable harm arising from that danger.
- A duty can also arise if the defendant knows of a danger on their land created by a third party or nature and fails to take reasonable steps to abate it (adoption of risk: Goldman v Hargrave). Knowledge and practical reasonableness (including resources) are key.
- Foreseeability of harm and proximity to those likely to be affected delineate the scope of any duty to act. Reasonableness governs the content of any positive steps required.
- Public authority defendants are subject to the same basic principles but policy considerations may limit duty; a mere statutory power does not create a common law duty to act (Stovin v Wise).
- Distinguish omissions from positive acts: if a defendant’s positive act makes matters worse (e.g., disabling sprinklers), ordinary negligence principles may apply without needing an omissions exception.
- When third-party wrongdoing causes harm, look to the recognised categories (special relationship with claimant; special relationship with third party involving control; creation of danger foreseeably interfered with by third parties; failure to abate a known danger created by third parties) to identify a duty.
- Whether a duty is imposed in cases of omission depends heavily on the specific facts, the relationship between the parties, and the fairness and practicality of imposing a duty to act.
Key Terms and Concepts
- Control
- Assumption of Responsibility
- Creation or Adoption of Risk