Act or pure omission?

Strike-out refused in case involving alleged pure omission

The implications of the Supreme Court judgment in CN & GN v Poole BC are slowly being decided.

In CN, Lord Reed (giving the single unanimous judgment of the Supreme Court) emphasised the distinction between causing harm (‘positive acts’) and failing to confer a benefit (‘pure omissions’).  A defendant owes a duty of care if it causes harm, or if the matter falls under one of three exceptions.  A defendant will not owe a duty of care (the ‘no duty’ rule) if the case involves a pure omission and none of the exceptions applies.

The main questions since CN are (1) how to differentiate between causing harm and failing to confer benefit, (2) how the courts will look at the exceptions, and (3) whether the courts are prepared to strike out some cases.

The third question has recently been considered in the High Court in the case of Chief Constable of Essex Police v Transport Arendonk BVA [2020] EWHC (QB).

A claim was brought by the owner of cargo stolen from a lorry parked in a secluded lay-by at night.  The lorry had been left there whilst the police held the driver on suspicion of drink driving.  The owner argued that the police were liable, because they had assumed responsibility for the cargo – in that they knew about theft of cargo in the area – but took no step to prevent it.  The police force argued it had no duty of care as the loss resulted from the acts of third parties and it had not assumed responsibility for the cargo.  The Recorder rejected the police’s request for a strike out, found that it was not clear that the police owed no duty of care, and ordered a trial.  The police appealed.  On appeal, Mrs Justice Elizabeth Laing agreed with the Recorder.  She found that there was no conclusive authority to determine this case.  She reviewed the other authorities, many of which had been considered in CN, and decided it would not be right to strike out the claim without making findings of fact.  A full trial will be required.

Until more cases have been decided about pure omissions and the exceptions to the ‘no duty’ rule, courts are unlikely to strike out cases


Rich_G-11_print

Geneviève Rich, Associate, BLM
genevieve.rich@blmlaw.com

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