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August 8, 2011
Abstract
The problem of omissions, whether and to what extent one may be held liable for not actively aiding others who are endangered, is a contentious issue. The first difficult question is how one can differentiate between omissions and activities? Further, can it be said that someone causes damage by doing nothing? Yet the most important question is whether someone has a duty actively to protect others from impending harm. This article examines these issues.
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This article, after briefly showing how legal metaphysics are needed to transform non-feasance and non-existent causation into a basis for liability, discusses the pros and cons, and requirements, of liability for omissions, starting from the arguments put forward by Lord Hoffmann in a famous English decision of 1996. It further analyses the risk of continuously and retrospectively creating new duties of care which are then logically infringed when the damage occurs in a way that could have been prevented by complying with one of those very same duties. The article finally comes to the conclusion that liability for omissions is justified in circumstances where an intervention is required by the concept of ‘neighbourhood’ and where an abstention would be contrary to ‘human duties’.
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This article addresses the common law's resistance to the imposition of affirmative duties to protect or aid others. The central thesis of the paper is that the common law does not have a unitary theory to explain and justify its approach to affirmative duties, but draws from multiple and sometimes conflicting theoretical viewpoints (though liberalism is fairly prevalent). Derived from that thesis is the secondary thesis that the existing classes of affirmative duty are not stable and fixed, but rest on rationalisations that can be displaced by a variety of countervailing considerations derived from the general reasoning process in tort law, unconnected to any distinction between affirmative and negative obligations.
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This paper discusses the economic approach to the question whether there should be a legal duty to rescue and a corresponding liability for omissions. It discusses the law and economics literature which holds that a rule of no-liability for rescue is efficient since a legal duty to rescue may crowd out altruism and could create a substitution effect. The subsequent literature has refined and criticised this hypothesis, arguing that in particular cases, where a special relationship between the potential rescuer and the injurer or victim exists, a duty to rescue may be efficient. Empirical studies concerning the duty to rescue are also discussed, showing that notwithstanding the absence of a legal duty to rescue, rescue without law seems to be the norm in the US. Finally, the possibility of a duty to rescue in criminal law is discussed.
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