Liability for what we fail to do right

This learned tome attempts to define the scope of legal liability in English tort law for ‘omissions’ (as opposed to ‘acts’).

The traditional understanding is that tort law imposes liability for what one does wrong and not generally for what one fails to do right. But as Professor Sandy Steel articulates in 12 cogently argued chapters (accompanied by a very helpful Introduction, and a perceptive foreword by Lord Reed, president of the Supreme Court), things are really not that simple. The distinctions between commissions for which there is legal liability and omissions for which there is not, are breaking down. The law increasingly finds ways to impose positive duties on people to get things right.

The writer argues that even talk of ‘omissions’ can be over-simplistic, and that there is a further distinction between ‘pure’ and ‘impure’ omissions. Steel skilfully navigates the content and boundaries of these various concepts. He then proceeds to analyse the circumstances where even ‘pure’ omissions can give rise to tortious liability, whether because of assumption of responsibility or for other reasons. Steel analyses those circumstances with easy-to-follow examples both from the perspective of what the law currently says and perhaps what it ought ‘normatively’ to say.

The relationship between law and morality in the context of sins of omission is examined carefully. There is, for instance, a very useful chapter on the concept of ‘easy rescue’ (such as rescuing somebody who is in danger of drowning in a shallow pool) and to what extent (if any) a bystander has a duty to intervene in those situations. The law is clearly evolving and this book analyses the directions in which the law is developing and might continue to develop.

Both the common law and statute are addressed, as are the particular legal positions of special interest groups such as public authorities. While the book focuses on English law, the themes that it espouses should be of interest to lawyers from other jurisdictions who are interested in comparative law.

The chapters and layout are thoughtful and logical. As one would expect from a writer of Steel’s calibre, the tables of cases and statutes, and index and footnotes are first-class. The book is both practical and philosophical, and would be of interest to readers of all types, whether student, academic, legal practitioner or judge.

David Glass is a consultant solicitor at Excello Law