In Defence of the Omissions Rule in Public Authority Negligence Claims

Abstract

Surely a public authority should be liable when it negligently fails to do its job of protecting people? And is the distinction between acts and omissions not in any event impossible to draw? This article addresses both of these doubts about the omissions rule in the law of negligence and its application to public authorities. It seeks to show that the omissions rule rests on more secure foundations than is often supposed.

First, confusion about the definition of the omissions category can be kept at bay. Secondly, justification for the rule is also available: the defendant in an omissions claim is a causally peripheral party, and the special requirements for liability under the omissions rule serve to provide a sufficient reason for holding such a causally peripheral party responsible. That justification is applicable to public authority defendants as much as to private defendants. The most uncertain question is whether the special risk requirement that maintains the usual ‘no duty to the world at large’ rule in this context is always appropriate in public authority cases – this article suggests some reasons why that may well be so.