There are sound reasons why omissions require different treatment from positive conduct.

Per Lord
Hoffman in Stovin v Wise (1996) Evaluate when a duty of care will be imposed for an omission and
assess whether the reasons for restricting such an imposition are indeed sound.

In general, tort law does not impose liability for mere omission. There is no duty to
confer a benefit on another (Stovin v Wise). So, for instance, there is no general duty
to rescue an imperiled person (Lord Diplock in Home Office v Dorset Yacht Co Ltd),
nor to report to the police criminal behavior that creates risk of injury to others (Chim
Kwan-tai & Anther v Li Fung Electronic Factory & Others). So, it is one thing for the
law to say that a person who undertakes some activity shall take reasonable care not
to cause damage to others. It is another thing for the law to require that a person who
is doing nothing in particular shall take steps to prevent another from suffering harm
from the acts of third parties or natural causes (per Lord Hoffmann in Stovin v Wise).
There are different possible reasons for this legal position. As Rick Glofcheski in Tort
Laws in Hong Kong observes, one of the reasons could be that it is more difficult to
identify errors of commission. The notion of causation applies more sensibly to a
positive act than to a failure to act. To impose liability for a failure to act will reduce
individual liberty, which contravenes the common law notion of individualism. Also,
it will be difficult to ascertain the scope of any such duty, were one to be imposed,
particularly in respect of the class of persons who might be said to come under a duty
of care in a given situation. As Lord Hoffmann in Stovin v Wise puts it, this also
relates to the moral aspect of Why pick on me?. Furthermore, according to Lord
Hoffmann, in economic terms, there is no justification for requiring a person who is
not doing anything to spend money on behalf of someone else to compensate the
latters loss.

Nevertheless, there are exceptions to the general rule that a mere omission cannot give
rise to a duty of care. For instance, there is a duty to act positively where there is
necessary proximity in the relationship between the plaintiff and the defendant, or a
relationship of power or control between the parties. Examples include solicitor/client
(Keep Point Development Ltd v Chan Chi Yim& Others and Full Country
Development Ltd & Another (Third Parties) [2003]); custodian/prisoner (Home
Office v Dorset Yacht Co. Ltd); employer/employee (Wong Wai Ming v Hospital
Authority[2000]); school/pupil (Chan Kin Bun v Wong Sze Ming and Carmel Alison
Lam Foundation Secondary School [2006]); doctor/patient (Bolam v Friern Hospital,
this case also concerns about the imposition of duty to inform); parent/child (Chan
WaiNga v Tam Chi Wai& Another [2006]); occupier/visitor (which is now governed
by the Occupiers Liability Ordinance). Foreseeability is a key ingredient in the
outcome of such cases. Also, to an unborn child, it was held that a duty of care is
owed which becomes actionable on birth (Burton v Islington Health Authority
[1993]). This is also the position of the provisions in Part IVA of the Law
Amendment Reform (Consolidation) Ordination and Congenital Disabilities (Civil
Liability) Act 1976.

As opposed to the above, the courts are very reluctant to impose a general duty of care
by the police to any particular individual. In Hill v Chief Constable of West Yorkshire
(1989) (HL), a Peter Sutcliffe murdered 13 women. The mother of his last victim
sued the police for negligence for failing to catch him, alleging numerous missed
opportunities. The House stated that while the police owed the public a general duty
to enforce the law, that duty was not a duty owed to the public to identify and arrest
an unknown criminal, and also the plaintiff was just a member of the general public
and could not be regarded as a person at special distinctive risk. If such liability is
imposed, the exercise of the police function would be carried on in a detrimentally
defensive front, resulting in a significant diversion of police resources from the
suppression of crime. Also closed investigations would require to be reopened, not
with the object of bringing any criminal to justice but to ascertain if or not they had
been competently conducted. The position of Hill was affirmed in two later cases:
Van Colle v Chief Constable of Hertfordshire Police; and Smith v Chief Constable of
Sussex Police (2009) (HL). In these two cases, the House of Lords adopted wholesale
the policy perspective of Hill, even though the criminals in these cases were
identifiable and strongly arguable, the victims were really in distinctive, real and
immediate risk. The decisions of these two cases restricting imposition of liability
have attracted a lot of criticism from commentators. For example, Burton ([2009] 72
Modern Law Review 283, 289) argues that the denial of a remedy in Smith may
therefore be seen not just as a failure to provide redress for one victim, but also
arguably as a license for the police to continue to fail victims of crime generally and
victims of domestic violence in particular. Also, the dissenting judge, Lord Bingham
argued that if a member of the public furnishes a police officer with apparently
credible evidence that if a third party whose identity and whereabouts are known
presents a specific and imminent threat to his life or physical safety, the police owes a
duty to that member of the public to take reasonable steps to assess the threat and, if
appropriate, take reasonable steps to prevent it from being executed.

The approach in Hill has been extended to cases involving the fire service(Capital and
Counties plc v. Hampshire County Council [1997]) and the coastguard (OLL Ltd v
Secretary of State for Transport [1997]). In the Capital v Hampshire case, it was held
that as a general position, proximate relationship cannot be established and hence no
duty owed by a fire brigadeto answer a fire alarm, or merely by attending at the fire
ground and fighting the fire. This is so even though senior officer actually assumes
control of the fire-fighting operation. However, a positive act of misfeasance (as in
the Hampshire case the fire officer ordered to turn the sprinkler system off which
caused the fire to get out of control) which substantially increased the risk of danger
would attract the imposition of duty. In respect of the ambulance service, the Court of
Appeal in Kent v Griffiths ruled that ambulance services were more akin to hospital
services than those of the police or fire service, and that once the call is accepted, a
duty of care is owed to the named individual at a specific address, although there is no
general duty to respond to a call. In this case, the ambulance did not arrive until 40
minutes after receipt of the call, and as the result, the plaintiff suffered a respiratory
arrest. The Court of Appeal ruled that although situations could arise where there was
conflict between the interests of a particular individual and the public at large, there
was no such conflict in the instant case since the plaintiff was the only member of the
public who could have been adversely affected. It seems that the Hampshire and Kent
cases are difficult to reconcile. The ground for restricting imposition of duty on fire
service is not convincing and unsound. One might argue that once a call is accepted,
there is reliance. Also, if Kent can be defended that ambulance service assumed
responsibility for the claimant when it accepted the 999 call, why not in the fire
service case? It is hardly convincing.

In respect of public authorities, it was held in East Suffolk Rivers Catchment Board v
Kent that, where a statutory authority is entrusted with a mere power it cannot be
made liable for any damage sustained by a member of the public by reason of a failure
to exercise that power. Likewise in Gorringe v Calderdale MBC (2004), in finding no
duty owed, Lord Hoffmann said that however irrational, it is difficult to imagine a
case in which a common law duty can be founded simply upon the failure to provide
some benefit which a public authority has power to provide. After all, in considering
whether to impose a duty on public authorities, the ultimate question is whether the
particular issue is justiciable (Barrett v Enfield London Borough Council [2001]). As
to the meaning of justiciability, Lord Hutton in the Barrett case said that non-
justiciability depends on the presence of policy issues which courts are ill-equipped
and ill-suited to assess, and on which Parliament could not have intended that the
courts would substitute their views for the views of ministers or officials. Also, the
court will have reference to the terms and purposes of the legislation creating the
authority and its power. It will not impose a common law duty of care where to do so
would contradict the statutory duties imposed. It will not impose a duty in regard to a
particular type of harm where the statutory powers and duties concern an unrelated
mischief (Yuen Kun Yeu v AG of Hong Kong; Reeman v Department of Transport).
It has been suggested that the judicial reluctance to impose a duty of care on public
authorities might be justified by the doctrine of separation of powers: to assure that
the courts do not pass judgment on policy decisions entrusted to coordinate brances of
government[and to prevent] tort actions from becoming a vehicle for judicial
interference with executive and legislative policy-making (Holmquist v State, 1988).

However, from Barrett v Enfield London Borough Council, it seems that if the
justiciability test can be passed, then a duty of care can be argued, even though some
element of discretion may be involved in the exercise of the statutory power. If the
decision complained of is so unreasonable that it falls outside the ambit of the
discretion conferred upon the local authority, there is no a priori reason for excluding
all common law liability (X v Bedfordshire County Council; Home Office v Dorset
Yacht Co Ltd). Also, in East Suffolk Rivers Catchment Board v Kent, Lord Romer
said that if in the exercise of their discretion, the only duty they owe to any member of
the public is not thereby to add to the damages that he would have suffered had they
done nothing. The principle identified in the East Suffolk case to the effect that a
common law duty will be owed if the statutory body through its negligence increases
the plaintiffs damage, was applied in Capital and Counties plc v Hampshire County
Council (described above) and in Knightley v Johns where the police inspector in
charge of the accident scene realizing that he had forgotten to close the tunnel to
further traffic, ordered two police officers on motorcycles to drive back into the tunnel
which then encountered collision and caused injury. Moreoever, where the statutory
officer exceeds the powers given under the statutory framework, a duty may be
imposed. In Welton v North Cornwall District Council (1997), the defendant food
inspector imposed requirements, including substantial building works, on the plaintiff
restaurant far in excess of what was actually required by the regulations. In these
circumstances, the court of Appeal found that the defendant had assumed
responsibility for the advice he gave to the plaintiff. Also, in Kane v New Forest
District Council (2001), a case which also involved a highway obstruction, Stovin v
Wise was distinguished by the English Court of Appeal. There, and unlike in Stovin v
Wise, the defendant planning authority was found to have imposed the requirement on
the developer to construct a footpath leading to a highway that it knew contained
inadequate sightlines, and therefore, owed a duty of care to a pedestrian who was
injured by a car when he emerged from the footpath onto the highway. Therefore, we
can see that the reluctance to impose a private law duty of care on public authorities
has not led to a blanket immunity. However, a clear doctrinal basis for when a duty
will be imposed has yet to emerge. The unreasonableness test as stated in X v
Bedfordshire County Council is obviously vague and difficult of application.

In conclusion,