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


Geneviève Rich, Associate, BLM

Gaelic Athletic Association raises concerns on social media use

The Gaelic Athletic Association (GAA) has issued advice to its member clubs not to use WhatsApp, in concern about what material is shared, often in error, and how it is controlled.  Group chats are often a very useful way of getting out news and arrangements for teams and clubs to the players, their parents and club members.  However the ease of access to the chats, the ease of adding material and the potential for errors, makes this a potential banana skin for those who operate the chat.

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Police given new powers to protect victims of stalking 

Powerful new Stalking Protection Orders (SPOs), which came into force on 20 January 2020, allow courts in England and Wales to move quicker to ban stalkers from contacting their victims or visiting their place of work, home or study. SPOs can also force a stalker to seek professional help.

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Scottish claims and litigation

In recent blogs, we have considered the Scottish Government’s plan for a statutory redress scheme. One of the evolving issues is whether engagement with the statutory scheme should be to the exclusion of a claimant’s ability to issue civil court proceedings. Scottish Government is committed to establishing the legislative framework for a redress scheme before the end of March 2021.

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Need for online protection noted by Information Commissioner

We have previously commented on issues such as “catfishing” and online bullying both being issues of concern in the area of child abuse.  The instant and anonymous access of social media forums as well as the interactive nature of online gaming, create opportunities for both those intent on abuse and those intent on bullying and blackmail.

Elizabeth Denham, the UK Information Commissioner, has spoken out on this issue and feels that future generations will be “astonished to think that we ever didn’t protect kids online.” She spoke in a forward thinking address while launching the Age Appropriate Design Code as a new set of privacy codes to be set by her office. Social media sites, online gaming sites and streaming services will need to abide by these new rules.

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Serial rapist given a life sentence

Reynard Sinaga, an Indonesian student living in Manchester, having completed a first degree, a masters and was latterly a PhD student at Leeds university working on his thesis ‘Sexuality and everyday transnationalism – South Asian gay and bisexual men in Manchester‘, was unveiled this month as the most prolific sexual predator after assaulting as many as 159 men by targeting victims and it is believed, plying them with GHB.

Jailing him the judge called him a ‘monster’ who showed no remorse after he was convicted using 1500 hours of his own video footage of his abuse and image captures from his mobile phone.

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Limitation: A look at the state of North Carolina

A number of significant changes to the law in the state of North Carolina have now taken effect. The changes looked to modernise and strengthen the existing laws on sexual assault.

Before the passing of the recent laws, there was no statute of limitations for felony sex crimes in any event. A two year statute of limitations applies to misdemeanour crimes.

The statute of limitations for civil actions for sexual abuse previously provided that adults must file a claim within three years of the event, and for minors, three years from the date of their eighteenth birthday, much like in England and Wales.

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