Torts

Torts I

NONFEASANCE IN TORT LAW

Submitted By: SAGUN POUDYAL (2000) A N D 

SAHAJ BADAYA (2001) ST TRIMESTER 

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st

1  Year, B.A. LL.B (Hons.) Date of Submission:

NATIONAL LAW SCHOOL OF INDIA UNIVERSITY, BANGALORE

TABLE OF CONTE CONTENTS NTS CASES………………………………………………….. 3 1. TABLE OF CASES………………………………………………….. 2. RESEARCH METHODOLOGY…………………………………… METHODOLOGY ……………………………………..4 ..4 3. INTRODUCTION…………………………………………………….5 INTRODUCTION…………………………………………………….5 4. CONCEPT OF NONFEASANCE…………………………………… OF NONFEASANCE…………………………………….7 .7 5. OMISSION AS A TORT……………………………………………...8 TORT……………………………………………...8 6. DISTINCTION BETWEEN MISFEASANCE, MALFEASANCE AND NONFEASANCE………………………………………………...10 NONFEASANCE………………………………………………...10 7. DUTY OF CARE, DUTY TO ACT AND DUTY TO RESCUE: DUTY TO ACT AND DUTY OF CARE ………………………………….13 DUTY TO RESCUE………………………………………………………. 15

8. STUDY OF CASES: CASES FROM FOREIGN JURISDUCTIONS………………………………… J URISDUCTIONS………………………………… 17 INDIAN CASES…………………………………………………………………21

9. CONCLUSION………………………………………………………24 CONCLUSION………………………………………………………24 10. BIBLIOGRAPHY…………………………………………………..25 BIBLIOGRAPHY…………………………………………………..25

TABLE OF CASES

 Anns v Merton London Borough Council  P Perl (exporters) v Camden London Borough Council  King  v Liverpool  v Liverpool city Council Gorringe v. Calderdale MBC  Fagan v. Commissioner of Metropolitan Metropolitan Police  East Suffolk Rivers Catchment Catchment Board v. Kent Smith v. Littlewoods Organisation Ltd. Stovin v Wise  Buch v.  Buch v. Amory  Amory Manufacturing Co  Hurley v.  Hurley v. Eddingfield  Eddingfield Soldano v. Soldano v. O’Daniels  Eric J. v. Betty v. Betty M. Yania v. Bigan v. Bigan  Montgomery v.  Montgomery v. National  National Convoy & Trucking Co. S. Krishna Murthi Iyer  v.  v. Taluq Board of Mayavaram  Noor Bibi v. Bibi v. Municipal  Municipal Committee, Committee, Ambala City  Brijbala Prasad  v. Patna  v. Patna Municipal Corporation Corporation  Rajkot Municipal Corporation Corporation v. Manjulben v. Manjulben Jayantilal Nakum Nakum Sushila Devi and others v. others  v. Municipal  Municipal Corporation of Delhi Delhi

INTRODUCTION  Nonfeasance is that part of the law of torts which arises out of omission to  perform a task. There are various aspects to this term. The question is that to what  point the liability does extend to and also how how does the liability arise. It is a wellknown fact that one should not cause injury to another. But does one also have to  perform acts to benefit another in a critical situation? Is the person who refuses to  perform that act held liable by law? This is what nonfeasance deals with. When and under what situation a person is held liable if the person fails or omits to perform an act? All these questions are answered only after the term nonfeasance is understood.

Black‟s law defines nonfeasance as the failure act when a duty duty to act existed.1 However, there exists an early difference deeply rooted in the law of negligence which is between misfeasance, malfeasance and nonfeasance. This difference has been closely examined in the paper. All of these terms deal with  performance or omission to perform an act which leads to injury to another. The main objective is to determine whether the law holds a person liable under omission. For example, if a person is walking by a lake and sees a person drowning, is he compelled  by law to rescue the person or actually under under what situation is the person compelled  by law to perform an act? All these common doubts doubts are answered in the paper with reference to reliable sources and cases. The topic of omission and different duties that a citizen is bound to perform have also been discussed. All of these discussions serve a large purpose of unravelling the concept of nonfeasance.

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 Blacks law 7 th edition. **

RESEARCH METHODOLOGY

AIMS AND OBJECTIVES: The researchers aim to firstly introduce the reader to the concept of nonfeasance. The prime objective of the researchers is to clearly distinguish the topic from other concepts such as Misfeasance and Malfeasance Malfeas ance and remove the ambiguity of the term, nonfeasance. The researchers also attempt to show several cases where the occurrence of the term is prominent. In this context, its limitations, its larger subheadings have  been discussed too.

SCOPE AND LIMITATIONS: Since the topic falls involves other concepts such as Omissions, Duty of Care, Duty to Act, Duty to Rescue, the researchers have not stuck strictly to the term only. onl y. But the purpose for the involvement of these other topics is explained and understood. The  paper is limited to these concepts which largely involve omissions. The scope scope of this  paper is mostly regarding the discussion of nonfeasance in India India and England.

POINTS OF DISCUSSIONS: The following points are discussed in the paper: 1. The literal meaning of nonfeasance. 2. The origin of nonfeasance from the omission to perform an act. 3. Relation and distinction between nonfeasance, misfeasance and malfeasance. 4. The reason for the imposition of liability due to Duty of Care, Duty to Act, Duty to rescue. 5. Cases relating to nonfeasance which also deliver the applicability of nonfeasance in different scenarios.

SOURCES OF DATA: The accessed sources of data have been books, articles and cases. All the accessed sources have been cited.

STYLE OF WRITING: The style of writing has been descriptive and an analysis has also been presented in required areas.

MODE OF CITATION: The mode of citation is uniform throughout the paper.

CONCEPT OF NONFEASANCE The term nonfeasance has often been unheard of. It is a condition arising out of omission of an act or a failure to perform an act. Black‟s law defines nonfeasance as “ Non-performance of an act which a person is obligated or has responsibility to perform; omission to perform a required duty at all; or, total neglect of duty.” duty .”2

To understand nonfeasance, we must firstly shred light upon the topic of omission. This is because only after understanding omission can we know how nonfeasance falls under the larger topic of omission. However we shall discuss omission comprehensively hereafter. But the basic topic t hat we shall focus on is whether nonfeasance can be treat ed as a tort and under what circumstances can it be treated as a tort.

 Nonfeasance is generally the failure to intervene to confer a benefit upon another whereas in a similar concept of misfeasance, harm is cause to another due to the performed actions. Nonfeasance normally arises when t he defendant fails to prevent the harm that is already occurring on the plaintiff. This can happen due to omission to perform the task of preventing the harm. These cases normally arise when the defendant fails to rescue the plaintiff the  plaintiff contends that the defendant should have intervened to rescue the defendant. However, this duty that the defendant owes is only applicable in certain cases.3

Basically, the duty of care arises when there exists a relationship  between the defendant and the plaintiff or there is a contract that binds both the the  parties and makes the defendant liable for any omission related to that contract. The point that needs to be established is that no person is liable to the actions or situations of another person unless a relationship is binding them which create liability and a violation of the duty of care results in nonfeasance. 4 2

Black‟s law dictionary 6 th edition***  L. Levine, and, A. Bernstein, U NDERSTANDING TORTS, LexisNexis, (4th edn. 2010).

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OMISSION OMISSIO N AS A TOR TORT T

As per Salmond: “ An omission consists in not performing an act act which is normally expected of you either because you normally do it or because you ought to do it, and it is the latter type of omission with which the law is concerned.  But while omissions incur legal liability where there is a duty to act, such a duty in most legal systems be the exception rather than the rule, for it would be unduly oppressive and restrictive to subject men to a multiplicity of duties to perform positive acts.” acts .”5

A thing is omitted if it is left out, undone or neglected. 6 Omission is the failure to do an act as a whole as opposed to the failure to do a part of an act being done.7 Even if it reasonably foreseeable that the failure to act may harm the plaintiff, it would not make the defendant, who did the omission and thus caused loss, liable for such failure to act. If a passerby sees a person lying in the middle of the road,  bleeding profusely and In need of urgent medical attention and such passerby, knowing that his passive inaction in calling for medical attention from a nearby phone  booth might result in the death of the injured person, does not summon medical medical aid, will not be liable if the injured person thus dies for the want of medical help. This is  because the inaction of the passerby is only indirectly and casually related to the harm caused.8 Also, the conduct of a person who who sees a person drowning in a lake, but does does not do anything to rescue him, cannot be held tortuously liable. The established  principle in English Law says that such pure omissions are not actionable. 9 Omissions incur liability only when there is a duty to act. The reasoning supplied here is that legal obligation of taking affirmative action should not be inflicted upon a person without his consent.10 It is one thing to mandate by law the duty dut y of a person to take 4

 Paula Giliker, and, Silas Becksmith, T ORT, p. 42, (3rd edn. 2008).  Sir John William Salmond, SALMOND O N JURISPRUDENCE, p. 352, P. J. Fitzgerald, (12th edn. , 1996). 6 Black‟s law Black‟s law 7 th edition page 1116. ** 7 th  Ratanlal and Dhirajlal, L AW OF TORTS, p. 25, (24  edn. 2004). 8  Margaret Brazier, S TREET O N TORTS, p. 181, (9th edn. 1993). 9  C. David Baker, T ORT, p. 82, (3rd edn. 1981.) 10  Id. 5

reasonable care. But it is different altogether to make a person who is not doing anything in particular to act in order to prevent someone from being harmed by the acts of a third person. 11

In other circumstances, where there is a duty of care on the defendant, he can be held liable for nonfeasance. If a parent or guardian does not rescue his drowning child then he can be held liable because ther e exists a duty of the  parent towards his child.12 In Anns  In Anns v Merton London Borough Borough Council ,13 the House of Lords held that liability could exist if due to nonperformance of a le gal duty harm is caused which could have been averted had the duty to act been fulfilled. 14 In a case where a general practitioner who take upon himself a duty regarding a pa rticular  patient and subsequently does not treat the patient, refuses to visit or turns him away from surgery shall be liable for omission to perform an act which he was duty bound to do. 15

In general, the courts are less willing willi ng to enforce a duty of affirmative action. So, omissions less often attract liabilit y as compared to acts.16 The distinction  between liability for acting and omitting to do an act was given more clearly in P in P Perl (exporters) v Camden London Borough Council , Council ,17 where vagrants broke into defendants‟ unoccupied premises, drilled a hole through the wall and into the  plaintiff‟s flat and stole all the garments which were kept there for storage and were from plaintiff‟s clothing clothing business. Despite the fact that the defendants were abundantly notified about the lack of security of their flat and that it was accessible to vagrants and their taking no action for enhancing the security, the Court of Appeal unanimously held the defendant not liable for any act. Walter LJ observed that the question here was whether the defendants were liable for omission to do an act rather than doing an act. In King  In  King  v. Liverpool  v. Liverpool city Council ,18 the Court of Appeal held the defendant local authority not liable where they failed to prevent vandals from

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 Richard A. Buckley, T HE LAW OF NEGLIGENCE, p. 11, (4th edn. 2010.) 12  Supra note 7, p. 26. 13 Anns v Merton London Borough Council, 1978 Council,  1978 AC 728. 14  Supra note 11. 15  Supra note 8. 16  Supra note 7, p. 455. 17  P Perl (exporters) v. Camden London Borough Council , 1984 QB 342, 1983 3 All ER 161. 18  King v. Liverpool , 1986 3 All ER 544.

damaging an empty council flat which led to the flooding of water into the plaintiff‟s flat.19 Therefore, for there to arise liability lia bility for nonfeasance, there must be complete omission of the act which a person was duty bound to do.

DISTINCTION BETWEEN MISFEASANCE, MALFEASANCE AND NONFEASANCE.

The line that distinguishes Malfeasance, Misfeasance and Nonfeasance is a faint one yet it is well-defined. well-d efined. The first step towards its distinction can be made by  breaking the terms down for simplicity and analysing them separately. Feasance means doing or acting. So clearly Mis-feasance means improper performance of an act which could have been done in a better manner; Mal-feasance means actually committing an unlawful act; and Non-feasance means inability or omission f rom  performing an act itself as a result of which the person bears a special damage to himself.20

Broadly, Misfeasance is the improper performance of an act which may arise out of negligence or carelessness in performing an act. The act the person  performs is lawful but the outcome is unlawful. A typical typical example is if a person accidently leaves a knife in a public place and this leads to someone else getting injured is a case of misfeasance. However, Malfeasance is itself an illegal act because the act performed is unlawful. Malfeasance requires no proof of wrong intent or carelessness. For example, if a highway hi ghway authority knowingly digs digs a hole in the middle of a road and it results in the injury injur y of another, the case is of a malfeasance. mal feasance.21

On the other hand, Nonfeasance is a rather different subject as it falls 19

 Supra note 11, p. 12.  Walker, THE OXFORD COMPANION TO LAW, p.844, 855, (1980); JOWITT‟S DICTIONARY OF E NGLISH LAW, Vol. 2, p. 1136, 1190, (1977) as cited in B.M. in B.M. Gandhi, th LAW OF TORTS, p. 18, (4  edn. 2011.) 21  B.M. Gandhi, L AW OF TORTS, p. 19, (4th edn. 2011.) 20

under omission which itself is a broad scenario and needs c areful attention. The name itself defines the term because it means the non-performance of an act which results in the injury of another. Nonfeasance merely imposes no liability which is the reason why the responsibility and position of the offender plays a vital role in determining nonfeasance of a tort. Some sort of a proof is mandatory in determining the existence of nonfeasance in a tort.

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To precisely determine the difference between the three, we need to first examine omission of a tort under which nonfeasance lies.

Omission is when a person omits the performance of an act. The  popular belief is that the difference between mis/malfeasance and nonfeasance is the difference between acts and omissions.23 Normally the knowledge is that no liability  befalls on anyone for the omission to perform a task in tort. But in the case of Gorringe v. Calderdale MBC , due to the failure of a highway worker to maintain a road, another person met with an accident because there was no safety precaution to warn the drivers on the highway. Here, the highway authorities were liable fo r misfeasance in the law of negligence and not nonfeasance because it was the duty of the highway authority to keep the highway in repair but owed no obligation or a duty of care to a specific person. per son. This is so because the highway authorities held s tatutory  powers responsible for the repair of the road and performed an act of leaving the road unattended which was directly responsible for the accident of the plainti ff.24 However the scenario has changed a lot since then. Omissions have always resulted in the liability even in tort.

So, is it that the basic distinction between misfeasance and nonfeasance that the former is resulted out of an act and the latter out of omission? If this is so then Fagan then Fagan v. Commissioner of Metropolitan Metropolitan Police demonstrates Police  demonstrates a similar situation. Although a criminal case, it still serves to be a clear example to prove a  point. Here, a person accidently drove over over a policeman‟s foot and upon realising upon realising that his vehicle was on the policeman‟s foot, he stopped the car and came out of the car 22

 Dholka Town Municipality v. Desaibhai Desaibhai,, (1913) 3 Bom LR 1034 as cited in B.M. in B.M. Gandhi, L AW OF th TORTS, p. 19, (4  edn. 2011.) 23  Allan Beever, R EDISCOVERING EDISCOVERING THE LAW OF NEGLIGENCE, p. 205, 206, (2009) 24 Gorringe v. Calderdale MBC , UKHL 15 2004 1 WLR 1057, 1063 2004 as cited in Allan in Allan Beever, R EDISCOVERING EDISCOVERING THE LAW OF NEGLIGENCE, p. 205, 206, (2009).

which signified omission allowing the car to remain on the policeman‟s foot. But, James J clearly mentioned that there remains no difference between his two actions i.e., of stepping onto the person‟s foot and leaving the car in that sam e position, position , as his omission to remove the car from the policeman‟s foot too qualifies for an action. This is so because the appellant intentionally intentionall y and provocatively allowed the car to remain on the policeman‟s the policeman‟s foot.25 The conclusion that we draw is that this case simply states that omissions and acts coincide and a non-performance of an act too is an act in itself. Even not moving ones muscles is an act and not an a n omission. So, all omissions are actions.

The above stated argument further provides us with a fresh confusion as to on what basis then can a definite distinction dist inction be made. F.H. Bohlen provides a clear-cut basis of distinction. He formulates his separation as “between active conduct working positive injury to others and passive inaction, a failure to take steps to benefit others, or to protect them from harm not created by any wrongful act of the defendant .” .”26 What he intends to say is that Misfeasance is an omission or an act that violates a person‟s rights whereas, Nonfeasance is the same but it doesn‟t violate any form of rights?27 Additionally, the distinction is made on the the basis of two aspects i.e. in the character of the action complained of and in the nature of the loss suffered in from the tort. Thus, the final result, regardless of the fact whether it arose out of omission or an act, may be the same. Although the outcome may be the same, the harm caused is on different levels. In case of a nonfeasance the situation sit uation of the  plaintiff remains the same as due to the commission of the tort, he has only only been deprived of the supposed protection that he could have been offered. However in case of misfeasance, the consequences that the plaintiff faces is that he has, in actuality,  been in a worse condition due to the commission of the tort and has been inflicted with new harm. So in the former situation the person who has committed the tort has failed to benefit the plaintiff whereas in the latter the plaintiff is in an actual situation

25

 Fagan v. Commissioner of Metropolitan Police, 1 QB 439 (CA) as cited in Allan in  Allan Beever, R EDISCOVERING EDISCOVERING THE LAW OF NEGLIGENCE, p. 206, 207, (2009). 26  F.H. Bohlen, T HE MORAL BASIS TO HELP OTHERS AS A BASIS OF TORT LIABILITY, 56, University of  Pennsylvania Law Review, p. Review, p. 217, 219, (1908). 27  Supra note 23, p. 217.

of loss as his loss is real and can be quantified. 28

DUTY OF CARE, DUTY TO ACT AND DUTY TO RESCUE The question of whether a person commits a tort by simply not wishing to perform an act is answered by the existence of a duty of care or a duty of rescue. One of the most distinctive features of the common law is that no duty of care is imposed on a  person except in special conditions. What are these situations or when do do they occur? It has been said that there exists ex ists no liability for the failure to act. a ct. Wilmer LJ quoted, “ An omission on the part of one one or other of the defendants would not furnish the  plaintiff with any cause of action in the absence absence of some duty to act owed by the defendants to the plaintiff .” .”29

 Duty to act and Duty of Care: Care: Accordingly, the reason why a person does not owe a duty of care towards another is because there must be an existent relationship between the two parties for a duty dut y of care to exist. This tells tell s us that liability can only be imposed when a defendant does not act when supposed to  because the defendant was under a duty to act and owed a duty of care to the plaintiff. However, a duty to act may be accepted voluntarily or imposed by law. The duty arising voluntarily poses no problems but the one imposed by law has a statute to impose that duty. Likewise, we can notice a similar condition in  East Suffolk Rivers Catchment Board v. Kent where Kent  where the plaintiff‟s land gets flooded due to the breach of the sea wall. Although it was not mandatory for the defendants to carr y out repairs  because they owed no duty of care towards the plaintiffs but regardless of that fact, the defendants repaired the wall which reduced the flooding of the plaintiff and no 28

 Supra 26, p. 221.  Zoernsch v. Waldock  (1964)  (1964) 1 WLR 675, 685 as cited in R.W.M. in R.W.M. Dias, T ORT LAW, p. 85, (1992.)

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liability was held by the defendants. This was duty of care arisi ng out of freewill even when it was not owed to the plaintiff. 30 However, the term power and duty are often misinterpreted. This dist inction is clearly cited in the case of Anns of Anns v. Merton London Borough Borough Council . Here the Merton local council approved the plans for the construction of a building. The council had powers to inspect and make amendments according to the suggested plan  but there was no duty bearing bearing upon them to do so. The construction was completed  but the structure developed defects and it was let out on lease to the plaintiffs. The tenants then filed a civil suit against the council stating that they were responsible resp onsible for negligence in the approval in plans of the building. Here it could be establi shed that even though the authorities were under no duty to exercise powers but faile d to minimise or avoid damage once it had assumed the power on the issue and therefore are held liable. In the former case cas e the damage had occurred independent of the interference of the authorities and before the authority authori ty had exercised powers whereas in this case the authorities were responsible for the damage. The conclusion that we can draw from this is that the situation can be approached in two stages i.e. whether there exists a relationship between wrongdoer and the person to whom the damage has been inflicted so that in the case of a carelessness or negligence by the former, the latter can be caused damage. If so the t he duty of care arises. And secondly, if the duty of care exists, whether there is any possibility where the extent of the duty is limit ed. 31 The distinction between powers and duties in simple terms is that when an authority has powers then it can perform an act but may not necessarily do it but when an authority has duty to perform an act, it is expected t o do it or else it can be held liable.

Another important case is Smith v. Littlewoods Organisation Ltd. Here Ltd.  Here we see how the defendant owes a particular duty to the injury suffered by the third  party. Here, an unattended cinema, owned by the defendants, was being occupied by several vandals who had sought refuge in it. Due to their actions, se veral fires had taken place in the past but the owners were unawar e of the facts. But on one occasion, the fire was a larger one than the previous ones which not only caused damage to the

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 East Suffolk Rivers Catchment Board v. Kent  (1941)  (1941) AC 74.  Anns v. Merton London Borough Council . (1978) AC 728, as cited in R.W.M. in  R.W.M. Dias, T ORT LAW, p. 87, (1992.) 31

cinema but also to the surrounding areas. The owners/residents of thes e areas filed a suit against the organisation on the grounds that they owed a duty of care and this fire was a result of their negligence. Also it i t was claimed by that the defendant held no reasonable foreseeability of damage to the plaintiff. The final verdict was that the organisation was not liable as they were not aware of the previous fires so could not  predict the large fire too so the condition of reasonable foreseeability was nullified and also because due to ignorance of the situations, there was no omission on the part of the defendants. Hence this was a case cas e where the duty to act was not valid. 32

 Duty to Rescue: The above discussed cases were with regard to public officials  but now we shall discuss the scenario involving private individual who in his quest to rescue an individual from harm fails to do so. Here, we s hall begin our discussion on duty to rescue. We do know that nobody is compelled under common law to rescue another being. Therefore, it imposes no duty to rescue. But, there are exceptions t oo to this statement. The current situation is i s such that even if a person is dying d ying near you and you are a bystander and even doing your minimum can save the person but you refuse to do so and the person dies, yet you cannot be held liable. However, it has been argued that if the duty to rescue would be mandatory under law then this would have adverse repercussions. This has been mentioned in Stovin v Wise by Wise by Lord Hoffman who summarised this into three categories i.e. political, moral and economic. A  person‟s freedom would be interfered if he be imposed with such a liability to compulsorily help another; the defendants would have an excuse for their acts by  pointing fingers towards the person who who failed to rescue them; and this would be economically inefficient. These are the three impacts stated respectively.33  Nonetheless the issue of duty to rescue is a complex case because on the face it looks like a moral obligation of every citizen but on further anal ysis the troubles are unravelled. A typical case of a child drowning will be sufficient t o demonstrate this effect. If a child is drowning and you do not save him then no li ability is imposed out of that omission. This failure, in the eyes of law, does not harm the child but actually

32

Smith v. Littlewoods Organisation Ltd. (1987) AC 241.  Supra 23, p. 209.

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it fails to benefit him. The individual actions of a person cannot impose liability to another. If the obligation is mandatory ma ndatory then the child‟s action would put an obligation on another person to act. But since the child‟s acti on of swimming was an individual one and the result of drowning was also by his own actions, it should impose no liability on another person who had nothing to do with the drowning of that child. Then again, duty of care does exist under certain circumstances. If there exists a prior relationship between the child and an onlooker then the onlooker is obliged by law to rescue the child. This relationship could be that of a child and parent or any primary right that the onlooker holds over that child. Also the duty of care may arise because of an agreement or a contract that exists exis ts which places the child under the onlookers care. When the onlooker fails to do so, not only is he liable for the breach of this duty  but also for the breach of the contract. Another Another condition is when the onlooker himself has put the child in that danger. Then the onlooker is lia ble for the outcome since he was responsible for the current situation s ituation of the child so the duty of care exists. The duty of the onlooker is simply to get the child out of the harm‟s way in which he has put the child and till which his responsibilit y extends. Now, if someone else has put the child in harm‟s harm‟ s way then the onlooker is only obliged to rescue the child if they have a pre-existing relationship which has been discussed above. 34

In the case of the Sherrice Iverson, Iverson, the duty to rescue is mentioned in a substantial extent. Leroy Iverson left his 7 year old daughter, Sherrice, unatt ended whilst gambling in a casino. In the meanwhile she was followed into the women‟s restroom by Jeremy Strohemeyer, a stranger, who sexually molested her and strangled her to death. Security footage showed that a part of this event was witnessed by David Cash who was Strohemeyer‟s friend but he refused to do anything about it and left the restroom without trying to stop the act or rescue the girl. Strohemeyer was tried in court and was given four life sentences but the controvers y that followed was around David Cash who was the onlooker to this crime. He had failed to be the Good Samaritan and chose to not rescue the girl which is similar to the above stated example where another person has drowned the child and the onlooker is not liable or obliged under law to rescue the child. David Cash was not held liable under law  because he owed no duty of of rescue to the child as there was no existing relationship

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 Supra 23, p. 222.

 between him and the girl.35

The observations that have been made so far under this heading have been clear as to when does a person owe a duty of care, duty to act or a duty to rescue to another. It can be said that omissions are antisocial, offensive and harmful in the common sense  but under law the clarifications have been well drawn.

STUDY OF CASES (A) Cases from Foreign Jurisdictions 1.  Buch v.  Buch v. Amory  Amory Manufacturing Co. Co.36 The plaintiff, who was an eight year old child, trespassed in defendant‟s weaving mill where heavy machinery was in operation. He was told to leave by an overseer who observed him. The plaintiff could not understand English and did not leave nor was he forcibly removed from there even though it was apparent that such machinery posed a risk to the the child. Plaintiff‟s hand got crushed in the machine which his brother, an employee there, was teaching him how to run. The appellate court found the defendants had no fault and held them not guilty. The only charge of negligence on them was that the plaintiff was unable to understand their command and also was not forcibly ejected. The neglect of a legal duty, actionable negligence, was not found in this case. The defendants here were under no legal duty to protect the plaintiff. The duty to protect here was only a moral one which is not recognized and cannot be enforced by law. It was held that the defendants were not liable to warn others against any hidden or secret dangers on the premises or protect the plaintiff against any injury that originates due to to plaintiff‟s own acts or the acts of others. If the defendants leave the t he  plaintiff entirely alone without interference then he has no cause of action against the defendants.

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 Zeigler, Marcia M. , Nonfeasance ,  Nonfeasance and the Duty to Assist: The American Seinfeld Syndrome , Syndrome  , p. 104, (1999-2000) 36  Buch v.  Buch v. Amory  Amory Manufacturing Co. Co. 44 A. 809 (N.H. 1897).

In legal terms, the inability of a child to comprehend dangers and that of an adult in discovering secret dangers which cannot be discovered by any degree of care is the same. No greater duty in any case rests upon the owners. On the contrary, here the plaintiff was held to be a trespasser and any injury to the machine or the premises caused by him shall have to be compensated by him to the defendants.37

2.  Hurley v.  Hurley v. Eddingfield   Eddingfield 38 The Defendant, a doctor, was a duly licensed practicing physician. He presented himself to the public as a general practitioner of medicine. He was also the decedent‟s family physician. When one day the decedent became dangerously ill, he sent a messenger to the defendant. He told the defendant of the decedent‟s sickness and the fact that no other physician was available in time and that the decedent relied on him for immediate medical attention. For no reason whatsoever, the defendant refused to provide medical assistance to the decedent. The defendant could have gone to the relief of the decedent if he wanted to as no other patients required his immediate service. servic e. The decedent died in want of  proper medical intervention, without his own fault fault and wholly from the defendant‟s act. The plaintiff, a kin of the decedent, sued the defendant for damages to the tune of ten thousand dollars. The judgement was ruled in favour of the defendant. On appeal, the court held that before the enactment of the law regulating the practice of medicine, the physicians were bound to provide medical attention to anyone who applied. But the act was a preventive rather than t han a compulsive measure. Upon acquiring the license, the physician need not practice at all or on terms other than those he prefers to follow. The court also adjudged that in absence of a compounded relationship, there rests no duty of affirmative action on anyone to help a stranger. There is no duty on any  person to be a good citizen and help those whose plight is not caused by your your act. The defendant was thus unanimously held to be not liable to the decedent. 39

37

 Richard A. Epstein, C ASES AND MATERIALS ON TORTS, 565-567, (9 th Edn. 2008). 38  Hurley v.  Hurley v. Eddingfield,  Eddingfield, 59  59 N.E. 1058 (Ind. 1901). 39 Supra note 37, at 568.

3. Soldano v. Soldano v. O’Daniels40 and its criticism in Eric in Eric J. v. Betty v. Betty M.41 In Soldano, Soldano, the decedent was in Happy Jack‟s Saloon Sal oon and in imminent peril of being shot. Another frequenter ran across the street to the defendant‟s bar and requested the  bartender to either call the police or let him use the phone to call the police as there was an emergency. The bartender refused and the defendant was killed. The courts rejected the defendant‟s contention that there was no duty on him to aid or assist the plaintiff. It held that t hat according to the Restatement of Torts, the defendant, even though not obligated to rescue, should have let the plaintiff make the call or should have called the police themselves as if someone negligently prevents of disables a third person whom he knows or believes to be acting in aid of someone, then he is held liable. Thus, the court, in the present case, held the defendant liable. 42 However, this decision was heavily criticised in Eric in  Eric J. v. J. v. Betty  Betty M. for its apparent misreading of the Restatement of Torts. The court pointed out that Soldano was Soldano was the only case in the preceding thirty years of American tort jurisprudence that wrongly modified the rule of no duty to aid and held the contrary. The court said that even for a good purpose, there was a diff erence between interference and denying the use of one‟s property. The words „prevent‟ and „interference‟ essentially refer to some affirmative action, not the refusal to hand one‟s property one‟s property over to someone else.43

4. Yania v. Bigan v. Bigan44 This case also shows uncongeniality of the courts with the creation and imposition of affirmative duties. Yania (the decedent) and Bigan (the defendant) were operators of nearby strip mines. One day they met on Bigan‟s land, near a large t rench, a worked out strip mine, with eight to ten feet of water filled in it, to discuss business. After Bigan‟s incitement, and for proving his manliness, Yania jumped into the trench and drowned, while Bigan stood by, watching. Yania‟s wife brought a suit against Bigan for Bigan  for three counts of negligence: influencing Yania to jump into the water, failing to warn him of the dangerous condition on the

40

Soldano v. Soldano v. O’Daniels, 190 Cal. Rtpr. 310 (Cal. App. 1983).  Eric J. v. Betty v. Betty M  90 Cal. Rtpr. 2d 549, 549, 560 (Cal. App. 1999). 42 Supra note 37, at 583 and 584. 43  Eric J. v. Betty v. Betty M. et al , 76 Cal. App. 4 th 715 (90 Cal. Rptr. 2d 549), accessed at http://law.justia.com/cases/california /caapp4th/76/715.html. 44 Yania v. Yania v. Bigan  Bigan,, 155 A.2d 343 (Penn. 1959). 41

land and failing to rescue him when he was drowning. 45 The court, in this case, dismissed all the three parts of the claim. The court found that the complaint did not say that Yania slipped or was pushed or that Bigan caused any physical impact on him but that Bigan, by blandishing Yania, made on him a mental impact which made him jump as he lost his capability and freedom of choice and was put under compulsion. The court held that neither was Yania a child of tender age nor was he mentall y deficient, so it was not conceivable that an adult in full possession of all his mental facilities could be influenced and thus there did not lay any actionable negligence for the harm. 46 The court also noted that Bigan could have been liable on the second count of failing to warn of the danger but since Yania was a strip-mine operator, he was well aware of the obvious dangers of jumping into the water. On the charge that Bigan failed to take necessary steps to rescue Yania, the court came up with a classic formulation of the “no duty to rescue” rule. I held that the mere fact that Bigan saw Yania in danger, did not impose upon him any legal duty, although a moral duty, to rescue him unless he was wholly or partly responsible for  placing Yania in that position. Since the decedent himself contributed, contributed, by his carelessness, to the accident which led to his death, the defendant should not be held answerable answerable for the consequence. The consequence of the decedent‟s mistake or ignorance must rest with him and cannot be blamed on the defendant. 47 The court held the defendant to be not liable on any of the counts.

5. Montgomery 5. Montgomery v.  v. National  National Convoy & Trucking Trucking Co. 48 In this case, without their fault, the defendant‟s truck stalled on the highway and  blocked the road completely. The defendant‟s defendant‟s agents knew that the truck was not visible to the vehicles coming past the hill and once it crosses the crest of the hill, it would, due to the icy condition of the highway and regardless of the speed, be impossible to stop such a vehicle. The defendant‟s drivers had ample time to place a warning signal at the top of the hill, which would have been visible to the vehicles which could then have stopped  before collision. But they only put put out flares and left the lights on their trucks. About 45

 Supra note 44, at 345.  Supra note 44. 47  Supra note 44, 346. 48  Montgomery v.  Montgomery v. National  National Convoy & Trucking Co. 195 S.E. 247 (S.C. 1937). 46

fifteen minutes after the truck stalled, the plaintiff‟s car came over the hill and started down toward the truck before the plaintiff pla intiff or her driver could see it. The plaintiff‟s car could not be stopped and collided into the truck. The court held that negligence can be committed by acts of omiss ion and of commission. There will be liability if the omission of a duty owed to another is the direct, proximate and efficient cause of the injury. i njury. Here, the defendants recognised their duty to warn others who were using the highway but such duty was not fulfilled  by merely having lights lights at the point where the truck blocked the road but it was necessary for the defendants to take reasonable precautions which would actually have been effective to prevent injury. The court here held the defendants liable for failing to carry out their duty to warn the plaintiff on time. 49

(B) Indian Cases 1. S. Krishna Murthi Iyer  v.  v. Taluq Board of Mayavaram 50 In this case, the plaintiffs argued before the court to direct the defendant to lop off the branches of trees planted on the outside of the plaintiff‟s house by the defendant under an obligatory duty to plant and preserve trees. The court, while dismissing the appeal, held that in the discharge of the duty, the defendants were not negligent negligent or careless. Also the omission to remove branches only amounted to nonfeasance for which there was no action possible at the instance of a  private individual.51 But the court also held that if the acts done by the public body are not obligatory, then the private rights must be honoured and liability shall be imposed for injuries caused to private parties.

2. Noor 2. Noor Bibi v. Bibi v. Municipal  Municipal Committee, Ambala City 52

49

 Supra note 37, at 579. S. Krishna Murthi Iyer  v.  v. Taluq Board of Mayavaram, Mayavaram , AIR 1919 Madras 477. 51  Id., at  Id., at 478. 52  Noor Bibi v. Bibi v. Municipal  Municipal Committee, Ambala City, City , AIR 1939 Lahore 453. 50

The plaintiff was the owner of a tonga and a horse which was given for hire. While the tonga was passing over the culvert, the hind leg of the horse got entangled in the  broken grating and the horse was was temporarily incapacitated and its value reduced by one half. The plaintiff sued the Municipal Committee. While trying to decide the question if this was a case of omission in maintenance of the highway, in which case the municipal committee could not be held liable or a case wherein a foreign structure brought on the highway is supposed to be maintained in good repair by the authority failure of which could hold the committee responsible, the court relied on White v. White v. Hindley  Hindley Local Board of Health, Health,53 and held that the Municipal Committee was liable and was directed to pay damages to the plaintiff. 54

3. Brijbala 3. Brijbala Prasad  v. Patna  v. Patna Municipal Corporation Corporation 55 The plaintiffs sued the corporation because of the accumulation of filt h and sewage matters of various kinds and stagnant water in the drain which happened because of the defendant‟s letting the drain unrepaired and unattended to. Also, the defendants,  by law, were mandated to maintain and repair repair the drains failing which there would be held liable in a court of law unless there was an explicit provision in the law providing them a defence. The defendant corporation was held liable in this case for their omission to do an act required to be done by them by the law. 56

4. Rajkot 4. Rajkot Municipal Corporation v. Manjulben v. Manjulben Jayantilal Nakum57  A roadside tree, which was in still condition, fell on the deceased while he was walking on a footpath. He suffered injuries and later died. The decedent‟s wife and children sued the municipal corporation for damages for the injury caused due to t heir omission to maintain the roadside trees. The court held that the general rule was to hold public authorities liable for positive action (misfeasance) but not for omission (nonfeasance). Before a body with statutory  power could be made liable for negligence negligence for the failure to exercise its power, the

53

White v. White v. Hindley  Hindley Local Board of Health , Health , (1875) 10 QB 219.  Supra 52, 453. 55  Brijbala Prasad  v. Patna  v. Patna Municipal Corporation, Corporation, AIR 1959 Patna 273. 56  Id.,  Id., at 274-277. 57  Rajkot Municipal Corporation v. Manjulben v. Manjulben Jayantilal Nakum and others, others, (1997) 9 SCC 552. 54

statute that confers such power must, either expressly ex pressly or impliedly, confer a right to  private action for the breach of duty thus mandated. mandated. It held that the conditions in India were not developed to such point where the corporation can keep constant watch by testing the health of trees in the public places. Thus there was no duty to maintain regular supervision and the causation was too remote. There lay no actionable claim with the plaintiff as it would be improper to associate a duty of care and liability li ability for omission.58 The court, thus, in view of the circumstances, held the corporation not lia ble.

5. Sushila Devi and others v. others  v. Municipal  Municipal Corporation of Delhi Delhi 59 In this case, the death of the decedent was cause due to the injury sustained due to the fall of a branch of a tree. The municipal corporation was sued for damages. The court held that by a chain of previous decisions, the law was well settled that if on the defendant‟s land, there is a dried or dead tree standing, and which, for that reason, may fall, or the defect is such which is either known or should have been cognised by the defendant, it makes the defendant liable for any injur y caused due to the fall of the tree. It was held that the injury was caused because bec ause of the non-action of the municipality. The court held the corporation liable and it was directed to pay damages.60

58

 Supra 57, at 601. Sushila Devi and others v. others  v. Municipal  Municipal Corporation of Delhi, AIR Delhi, AIR 1999 SC 1929. 60  Id., 59

CONCLUSION

BIBLIOGRAPHY