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Misfeasance And Nonfeasance Notes

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This is an extract of our Misfeasance And Nonfeasance document, which we sell as part of our Tort Law Notes collection written by the top tier of Oxford students.

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Misfeasance and Nonfeasance What is misfeasance and nonfeasance

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Misfeasance = Making things worse

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Nonfeasance = failing to make things better Why do we need a distinction?

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Arguments against a distinction o Donoghue v Stevenson [1932]:
? Lord Atkin:

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Question for lawyers = who is my neighbour that I should take reasonable care to avoid damaging them?

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Answer = persons who directly affected by X's act o that S ought reasonably to have them in contemplation as being so affected
? when X directs his mind to the acts or omissions which are called in question o Dorset Yacht
? Lord Reid:

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Lord Atkin's speech can be considered a statement of principle that isn't statutory definition but it ought to apply unless there is some justification or excuse.

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Arguments for a distinction o Logie:
? It is not the function of law to enforce moral values

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Lord Goff in Smith v Littlewoods [1987]: o Cannot be punished for "pure omissions"
? e.g. Where the adult Z sees a drowning child in a paddling pool and does nothing to save him. o Morally might be repugnant but this is beside the point.
? Law should not restrict individual liberty by burdening people with affirmative duties

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Lord Hoffmann in Stovin v Wise [1996]
o "One thing to compel someone when doing something to take reasonable care.
? Quite another to compel someone who is doing nothing in particular to prevent another coming to harm."
? Economic Argument

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McIvor: if someone voluntarily undertakes to do something, it is right that they expend time, energy and money to do it so that others are not harmed o This argument has no effect where people are forced to do something out of legal compulsion, despite the burdens upon them. o Smith and Burns
? Clear Causal distinction

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If X knows that giving PS100 to a charity will save an African child, but declines to do so, X is not responsible for the child's death. o It can only be said that he let the child die

o This is fundamental if we are to conceive of ideas of responsibility and culpability
? Difference between acts and omissions

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Grounds for liability for nonfeasance are different for grounds of liability for action o You have to show some form of obligation to go with nonfeasance
? Therefore, b/c so different, misfeasance and nonfeasance can't be adequately dealt with in terms of a single principle.
? Lord Atkin did not intend there to be no distinction

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Nonfeasance does not even fall within the rule of Dongoghue, this case about causing damage through an action
- e.g. negligent manufacturing. o While Donghue talked about "people being so directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions called in question"
? But by "omissions", Lord Atkin must have meant omissions that are parts of actions (e.g. failing to apply brakes) -not merely letting something happen Why do we need exceptions then?

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Honore: o "Norms imposing Distinct Duties"
? Degree of blameworthiness to be attached to omission is determined by norm it violates

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Normally worse to violate norm through positive conduct than negative conduct o But are certain "norms imposing distinct duties" which are so important that their violation by any means will attract reproach
? These are:

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Where agent creates risk of harm

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Agent occupies position of responsibility

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Agent is well placed to meet the need, such position creating a situation of dependency

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Agent is recipient of the benefit

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Agent has given an undertaking o Isn't this just morality?
? McIvor: law isn't compelled to follow morality - but doesn't mean it is incompatible.

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McIvor: o Problem isn't that the rule against omissions is wrong
? Or that there is recognition that exceptions are needed

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It's just that the exceptions are rather vaguely worded

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And have been developed on an ad-hoc basis.

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