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Flashcards in Omissions Deck (17):

What is the general rule regarding to Duty Of Care in relation to Omissions?

The General rule is that there is no duty to take positive action to prevent injury to another - Stovin v Wise


Exceptions to the general rule?

1. Omissions forming part of (or following) a risk cause of action
2. Pre-existing relationships between P & D
3. Cases in which D has control of a third party's actions.
4. Statutory power to prevent harm (Public bodies).
5. Control of property that is the source of risk.


Exception: Pre-existing Relationships - School Authority / Pupils

Introvigne v The Commonwealth
Child dropped off 5 minutes before school started. A flagpole fell on that child because of another child. The Plaintiff's were successful because of failure to supervise children. School can't be expected to protect child from every risk, but the risk was substantial has the flagpole had been involved in a number of prior accidents.

Contrast: Roman Catholic Church v Hadba
This case, the required standard of care was met.
There was a fly fox in the playground. A number of staff on duty at the time, but a member of the staff is responsible for supervising the whole playground. The child mounted on the flying fox, two other kids pulled her off and she was injured.
There wasn't a lapse in the reasonable standard of care because there was no evidence of previous incidents with regard to the flying fox.
The school had a hands off approach while they were using the equipment, they had also instructed students carefully about using equipment in an unsafe way. Hence they had met the standard of care required.


Exception: Pre-existing Relationships - Prison Authorities

NSW v Budjoso: P was a pedophile in prison. He had been attacked previously in jail and the jail took measures to separate him. He was put in a lower security cell near the toilets away from any supervising officer, with weak locks. He asked to be put near a supervising officer, but had not been.
The supervising officer at the time had not been told that there was a special risk to that prisoner who had been threatened.
Prisoners broke in and fractured his skull.
In those circumstances, they had a duty arose from being under control and direction of the prison. The prison was also in breach.


Exception: Pre-existing Relationships - Doctor / Patients

Rogers v Whittaker - Duty to protect you and NOT to do bad things. This has been put in s21 of the CLA.
This case is authority for the duty to positively provide info about material risks.
This case is about the girl who had an eye operation with a small risk that both eyes would go blind.
The doctor did not advice the P about this.
The doctor had failed to take positive actions to notify of the risk.
There was a duty to provide info on risks of two sorts:
1. Where the risk is such that a reasonable person in the plaintiff's shoes would want to know about
2. Risks that doctors know or ought to know that the particular plaintiff wants to know about.
The significance on this facts because of how small the risk is. In this case, it fell into the second category. In those circumstances, she had clearly indicated she wanted to know about all the risks.


Exception: Pre-existing Relationships - Employees / Employers

Coca Cola v Pareezer - employers to provide safe equipment to use and a safe system of work. Also because of control.
In this case, the P had been mugged before. 2 years later, at the same area, he was emptying the same machine and was again held up by the gang that was known by Coca Cola to be a risk.
Coca Cola had taken measures to protect money, but not employee. The uniform was still bright and the same as before. He hadn't been instructed on how to handle money etc.
The court was prepared to find that the employee breached a duty to provide adequate training to employees as to handling money in these circumstances. The claim however failed because even if those precautions had been taken, there was probably nothing that that could've been done to prevent the event that occurred.


Exceptions: Control over a Third Party Agent of the Harm - Parent over child

Smith v Leurs - No breach found in this case.
Here, the P child was injured by the D's 13 year old. Armed with a slingshot.
No duty found because simply instructing the 13 year old to not use it outside the house was not enough to discharge the duty.
In any case, this case established that the duty of care from one parent owed to the child of another, by virtue of control over their own child.

Hogan v Gill - found to be breach.
The Defendant's 6 yo child got hold of a rifle that D had left in his bedroom loaded. In the course of playing a game, the neighbour's child who was 4 yo was shot with the rifle by the 6 yo.
Parent breached duty owed to the neighbours child as he failed to exercise proper control over his own child.


Exceptions: Control over a Third Party Agent of the Harm - State Control over Prisoners

Dorset Yacht - Property damaged in the course of the prisoner's escape. The prison owed a duty to P because of control over the P. The P was also particularly close that to that prison and hence was especially at risk.

Hill (1989)
Contrast to Dorset Yacht.
Here, the perpetrator killed 10 female prostitutes in London.
The case was brought on behalf of the final victim, the 13th woman who was killed shortly before the perpetrator was brought to justice.
It was argued that the police owed a DOC to her, by failing to arrest the perpetrator.
Courts said NO DOC because:
1. Public policy reason - no duty in the context of investigations of crime. It might make the police over cautious or overzealous about their investigations.
2. The 13th lady wasn't anymore at risk than any female member of the public.
3. Unlike Dorset Yacht, the perpetrator was never in the CONTROL of the police, he had never been arrested. In Dorset, the prisoner was under the control of the prison.

Godfrey v NSW


Exceptions: Public Body Liability - Failure to carry out a careful exercise of Statutory Powers. Consider what police reasons?

1. Conflicts of duty (a duty owed to A conflicts with a duty owed to B)
2. Justiciability of the discretion
3. Defensive practices = less quality.


Exceptions: Public Body Liability - Failure to carry out a careful exercise of Statutory Powers. Approach do DOC in NOVEL cases?

Crimmins v Stevedoring.
This case was involving the abestos causing a disease. P was working on a wharf. He wasn't directly employed by D, but multiple.
The defendant had the power to direct individuals where to work and s18 to make any orders they wanted to do and do 'all such things as it saw fit' to promote their functions, one of which was safety.
P sued D on basis that they should have exercised their powers to avert the risk of which he was exposed. P argued that they should have made orders seeking to regulate employers behaviour in the workplace better and to provide safety equipment and instruct employees in the workplace in how to handle asbestos safely. The risk of asbestos was also well known at the time.

In this case unfortunately, there was a core policy making reason to not impose a DOC. The D had been given their power democratically. However, that didn't prevent from owing a DOC to do the other things.
Held: DOC owed.

An approach to determining DOC in new cases was developed:
1. Reasonably foreseeable failure to exercise power would result in an injury to P or his/her interests.
2. By reason of D's statutory or assumed obligaitons or control, did D have the power to protect a specific class including P from a risk of harm?
3. Was P vulnerable in the sense that P could not reasonably be expecte to safeguard himslf/herself or interests from harm?
4. D ought to know or knew of the risk of harm to the specific class including the P if D did not exercise powers?
5. Would duty impose liability with respect to D's exercise of 'core policy making'?
6. Any other supervening reasons in policy to deny DOC (e.g. imposition of a DOC is inconsistent with a statutory scheme)?


Graham Barclay Oysters v Ryan

P decided to eat oysters, developed Hepatitis A - a human faecal contamination. Was a known risk and ordinarily not take oysters from the specific lake after heavy rainfall.
P sued a number of people: Oyster producers themselves on the basis of their positive actions in farming the oysters.
Council also sued.

First D was State of NSW: State had power to regulate oyster industry more carefully. There was known risks and debate in parliament about it. In the end, the decision had been taken to leave the industry to self regulation instead of state intervention. They had powers to prohibit fishing in the lake if they were satisfied there were health risks.
They also had powers to disperse pollution under the Clean Waters Act.
Held: No DOC owed whatsoever because in relation to the exercise of the legislative powers is non justiciable. It would directly impinge on the principle process and result in a contradiction of the governmental entities and courts.
None of the powers gave the state appropriate control over the farm.

Council also sued as it had powers. But also held again that DOC not owed as those powers gave no control over the oyster industry.


Stuart & Kirkland v Veenstra

The man who was attempting suicide, police caught him, released him and then he suicided the same way.
Held: No duty to rescue. Also the power to prevent him was contingent on them being satisfied that he was mentally ill. If not, they can't arrest and hence exert no control over the individual.
Also to impose a duty would impose limits on the police's autonomy.


Beardmore v Franklins management

Duty to take positive steps to prevent injury if:
1. The harm is reasonably foreseeable.
2. The D must be in control of the shop or area where the harm is occuring.

A DOC is also owed where the D is in control of a defective premise.
This case: P went shopping at a supermarket. As she bent down to look at some products, she heard a yell, turned around and was hit by a shopping troolley pushed by a 5/6 yo. Consequently, she suffered back injury.
Child had been making car noises prior to the accident.
An occupier of premieses such as Franklins management owed a DOC to take reasonable care for the safety of an entrant on it's premises if there is a relationship of sufficient proximity between the occupier and entrant.
In this case, the D owed a DOC to the P, a shopper in it's store, to avoid reasonably foreseeable risks of injury to her.
The young boy had accidentally nudged an old lady prior to the accident with the P, so there was reasonably foreseeable risk of harm.


Triangle Shopping v Anzil

In this case held shopping centre owed no DOC because it happened after-hours in the car park.


Karuschich v Marnie

Concurrent liability and other party claims contribution.
If pre-existing relationship then DOC is owed: Barnett.
If someone says yes, I'll come and help you, there is VOLUNTARY ASSUMPTION OF RESPONSIBILITY.


Lowns v Woods

There is only a duty to rescue in an emergency. Though this is NSW Authority.
In this case had NSW Medical Practitioner's Act legislation that establishes the professional duty.


Qld CLA sections on professional liability

s35 - principles concerning resources, responsibilities etc of public or other authorities
s36 - proceedings against public or other authorities based on a breach of statutory duty.