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Published online by Cambridge University Press: 02 January 2018
In what circumstances, if any, can a person be held liable in tort for failing to prevent another person from causing harm?
Different legal systems answer the question in different ways. In many US jurisdictions, for example, although theoretically there is a presumption against liability, a great number of categories of citizen (including doctors, bar-keepers and psychologists) are held responsible for the harm caused by others to whom, for example, they have prescribed medicines or served alcoholic drinks or offered advice.
1. See generally, Markesinis ‘Negligence, Nuisance and Affirmative Duties of Action’ (1989) 105 LQR 104.
2. For liability of doctors see eg Gooden v Tips 651 SW 2d 364 (breach of duty to warn patient of side effects of drugs - others injured by patient successfully proceeded against doctor) but see Purdy v Public Administrator of County of Westchester 72 NY 2d 1, 526 NE 2d 4 (1988). For liability of bar-keepers, see eg McFarlin v Hall 619 P 2d 729 (1980) (plaintiff shot by drunken customer of defendant, a bar-keeper: defendant held liable because should have known of customer's violent tendencies when drunk), Slawinski v Mocettini 31 Cal Rptr 613 (1963) (similar, except insufficient evidence that reasonable bar-keeper would have known about violent tendencies). For liability of therapists see eg Tarusoff v Regents of University of Caltfornia 551 P 2d 334 (therapist has duty to intended victim of patient known to he dangerous). Note also Pamela L v Farmer 112 Cat App 3d 206, 169 Cal Rptr 282 (1980) (wife encouraged young girls to use swimming pool at her house, told girls' parents that it was safe for them: held liable to girls after they were attacked by husband, whom she knew to be a child molester). See generally Prosserand Keeton on Torts 5th edn (St Paul: West, 1984) pp 383–385.
3. Larenz, Karl. Lehrbuch des Schuldrechts (Munich: Beck, 2nd edn, 1977) vol 2, p 541 ff.Google Scholar
4. See G Viney Les Obligation, La Responsibilité: Conditions (Vol 4 of chestin Traite de Droit Civil) (Pans: LGDJ, 1982) para 478, p 574.
5. See BGH (3 February 1987), VersR 1096 in which the defendant leaves his stable unlocked and strewn with dry straw. Arsonists enter the stable and set fire to it. The fire spreads to and damages the plaintill's house. Both of the ways stated in the text of putting the argument for the defendant seem to be used, but note also that the court states its conclusion as being that there was no infringement (Verletzung) of the Verkehrssicherungspflicht- possibly best translated as ‘no breach of duty’. See also Markesinis loc cit, n 1, above.
6. See para 3 of Larroumet's note to Blieck, Ass plén, 29 March 1991, D.1991.324. Blieck is itself a significant case for French law since it appears to set up a new general principle of vicarious (ie strict) liability for the acts of others, at least for those for whom one has accepted responsibility and whose day-to-day life one organises. See generally Viney D 1991 Chron 157.
7. See eg Lawson, F. and Markesinis Tortiour Liability for Unintentional Harm in the Common Law and the Civil Law (Cambridge: Cambridge University Press 1982) Vol 1, p 73.Google Scholar Viney, op cit n 4 above, pp 544–45.
8. For the strict view see eg BGB, para 831 and 832; Code Civil a. 1384; Civ 2e, 15 February 1956 D. 1956.410 note Blanc; Weld-Blundell v Skph [1920] AC 956. For moves away see BGHZ 27, 137; BGHZ 37, 311; Ass pltn 29 March 1991, above n 6; Smith v Lcurs [1945] 70 CLR 256, Home Ofie v Dorset Yacht [1970] AC 1004 (at least in Lord Reid's speech which treated the problem as one of remoteness rather than one of duty of care); Smith v Littlewoods [1987] AC 241.
9. Contrast Markesinis op cit, above n 1 and (in a different Context) Weir, Loss of a chance -compensable in tort? The Common Low, in O Guillod (ed). ‘Developpements Recents du Droit de la Responsibilité Civile’ (Zurich: Schuthess Polygraphischer, 1991) p 112.
10. Cf Gusfield, Joseph. Symbolic Crusade: Status Politics and the American Temperance Movement (Urbana: University of Illinois Press, 1963).Google Scholar
11. Compare Wright ‘The Logic and Fairness of Joint and Several Liability’, 23 Memphis State Law Rev 45 (1992) with Viney op cit; above n 4, paras 406–424, pp 48C501.
12. See Howarth ‘Negligence After Murphy: Time to Re-think’ (1991) CLJ 58 at 61–68.
13. [1993] 1 WLR 977, [1993] 3 All ER 448.
14. [1993] 3 All ER at 460.
15. Ibid. Note also that MayJ, probably wisely, explicitly chose not to use the fashionable but imprecise argument for refusing to impose liability, namely that there was insufficient ‘proximity’ between the parties. The Court of Appeal, without any explanation as to the meaning of ‘proximity’, doubted whether May J was correct in his choice.
16. See n 34.
17. See Howarth op cit, above n 12 passim. IS. [1987] AC 241.
19. [1920] AC 956 to 986.
20. [1984] QB 342.
21. See Hart and HonoréCausation in the Law (Oxford: Clarendon Press, 2nd edn 1985) pp 178–78.
22. [1970] AC 467.
23. [1981] 2 AllER.
24. See Fleming [1987] CLJ 209, Markesinis, op cit, above n 1, and Howarth, op cit, above n 12.
25. P259.
26. [1951] AC 850.
27. [1961] AC 388.
28. At least that is what it seemed to be at the time. See Williams ‘Causation in the Law’ [1961] CLJ 61. Cf the French formula that the intervening act must be ‘imprévisible et irrésistible’, see Viney op cit, above n 4, para 393 IF, p 463 IF.
29. See Hart and Honore op cit, above n 21, pp 254-290. Note that the kind of causation in play in Lord Mackay's rule, one which it does not allow full scope for the old rules of nouvs actus intervniens, has been dubbed ‘occasioning’ by Hart and Honoré to dinstinguish it from ‘full’ legal causation. Ibid pp 59–61,194–204 and 374–6. See further Howarth 'O Madness of Discourse, That Cause Sets Up With and Against Itself 96 Yale LJ 1389 (1987) at 1408–1412.
30. [1981] QB 625.
31. [1984] QB 342.
32. [1986] 1 WLR 890.
33. (1986) Times, 6 May.
34. [1967] 1 AC 617.
35. This theme is taken up more explicitly in the short speech of Lord Griffiths in Smith.
36. [1970] AC 1004.
37. [1993] 3 All ER at 459.
38. See BGH 3 February 1987, VersR 1096, above n 5.
39. And note that if it were the case that the joyriders would have stolen the minibus even if the defendants had not been at fault, the joyriders' intervention would have been technically ‘independent’ of the defendants’ fault and so would have become a proper candidate to be considered as a novvc actus interveniens.
40. This point was suggested by Tony Weir.
41. As mentioned above, May J dealt with the point by saying that Lord Mackay's remarks were obiter dicta, but he also implied that Lord Goff's position amounted only to saying that the courts should be reluctant to impose a duty of care for third-party acts, not that there was general prohibition against doing so.
44. 8th edn 1990 (London: Sweet and Maxwell) p 39, n 13.
43. 16th edn 1989 (London: Sweet and Maxwell) p 36.
44. 8th edn 1988 (London: Butterworths) at p 169, n 9 and p 333.
45. P 171.
46. Law of Torts (London: Sweet and Maxwell, 20th edn 1992).
47. P 226. n 40.
48. Pp 224–25.
49. Law of Tort (London: Sweet and Maxwell. 13th edn 1989) pp 94–95. See also Rogers Fundammfk Prin&les of thc Law of Tort (London: Sweet and Maxwell, 1989) p 48, n f i.
50. Dias and Markesinis Tort Law (Oxford: Clarendon Press, 2nd edn, 1989) p 25 ff.
51. Textbook on Torts (London: Blackstone, 3rd edn, 1991) pp 37–39.
52. Casebook on Tort (London: Sweet and Maxwell, 7th edn, 1992) pp 118–19.
53. Tort: Cases and Materials (London: Butterworths, 4th edn 1991) pp 86–99.
54. Op cit, above n 52, p 119.
55. See above n 30.
56. See above n 31.
57. Lord Mackay even distorts his own argument in order to try to accommodate Perl. See Howarth, op cit, above n 12 at 76–77.
58. It is far from clear, however, that Mr Topp will succeed in getting compensation from the MIB. The Court of Appeal's implication that the joyriders ran down Mrs Topp deliberately would rule out an MIB compensation payment under cl I(1)(e) of the Agreement. In addition, there appears to be a lacuna in c15 of the Agreement, for although there is provision for the circumstances in which a plaintiff sues a person other than the untraced person for the injuries arising out ofthe accident but the judgment is overturned on appeal, there is no provision for what happens when the MIB reasonably requires the plaintiff to sue the identified tortfeasor but the action fails at first instance.
59. See Hepple and Matthews, op cit above n 53, p 902 for a discussion of the voluntary nature of payments under the MIB agreements.
60. For recent contributions to the literature on corrective justice and tort law, see eg Jules, Coleman. Risks and Wrong (Cambridge: Cambridge University Press, 1992) pp 303–28Google Scholar; Weinrib ‘Corrective Justice’ 77 Iowa Law Rev 403 (1992); Wright' Substantive Corrective Justice' 77:2 Iowa Law Rev 625 (1992).
61. ‘Preventing Impunity’ in Gross and Harrison (eds), Jurisprudence: Cambridge Essays (Oxford: Clarendon Press, 1992) pp 95–106.
62. Recoupment Regulations 1990, SI 1990/322, Social Security Act 1989, s 22 and Sch 4 as amended by the Social Security Act 1990, Sch 11, and now consolidated in the Social Security Administration Act 1992 Part IV (s 81 ff). See Churchouse (1990) 14 Law Society Gaz 19.
63. Cf the approach of the French courts to the problem of cases in which the defendant sharesresponsibilitywithanactofGod.Com, 19June 1951, S.1952.1.89; D.1951.717. Civ 2e, 13 March 1957, S.1958.77 D.1958.73. Lawson and Markesinis, op cit above n 7, pp 127–28.
64. The position of the risk to be borne by the state could also be adjusted appropriately by amendments to the Recoupment Regulations (see above n 62).
65. [1970] AC 467.
66. See Hotson v East Berkshire HA [1987] AC 750.
67. Note that liability for a pure lost chance of safety would in principle allow actions for damages even where no harm at all was suffered in the event by the plaintiff. The plaintiffs difficulty would be one of quantification, however.
68. See Wright loc cit, above n 11.
69. The difference between these cases and the German arsonists' case is that in Smith and Topp it was not possible to cause the mischief in question from outside the building or vehicle, whereas, because the stable was made of wood, it was quite possible for the arsonists to start the fire without getting into the stable. Thus, whether access was allowed carelessly is crucial in Smith and Topp but not in the German case.
70. [1989] AC 328.
71. See Fraser and Howarth ‘More Concern for Cause’ (1984) 4 LS 131 at 139 ff. Cf the ‘kind of harm’ problem in Wagon Mound (No 1) (remoteness). See Hughes v Lord Advocate [1963] AC 837, Trmain v Pike [1969] 3 All ER 1303 and Doughty v Turner Manufacturing [1964] 1 QB518.
72. See above n 60.
