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Tort Law: Text and Materials

Tort Law: Text and Materials (6th edn)

Mark Lunney, Donal Nolan, and Ken Oliphant
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date: 03 February 2023

p. 4699. Negligence: Duty of Care—Omissions and Acts of Third Partieslocked

p. 4699. Negligence: Duty of Care—Omissions and Acts of Third Partieslocked

  • Mark Lunney, Mark LunneyProfessor of Law, University of New England in New South Wales
  • Donal NolanDonal NolanProfessor of Private Law. Francis Reynolds and Clarendon Fellow and Tutor at Worcester College, University of Oxford
  •  and Ken OliphantKen OliphantDirector of the Institute for European Tort Law, Austrian Academy of Sciences, Vienna

Abstract

This chapter examines liability for omissions and for the acts of a third party in negligence. Despite the general principle excluding liability for omissions, liability may arise in certain exceptional circumstances, but no precise categorisation is possible of the various situations in which a duty of affirmative action is recognised. The question of liability for the acts of a third party often overlaps with the question of liability for omissions because in a third party case the complaint is often of an omission, for example a failure to control a third party, or to prevent a dangerous situation from being sparked off by a third party. But not all third-party cases involve omissions. Sometimes the complaint is simply that the defendant provided the third party with the opportunity or the means to injure the claimant, and it is that conduct which is alleged to be negligent, regardless of whether the defendant unreasonably failed at some subsequent point of time to intervene to prevent the injury.

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