#6910 - Torts B Extended Omissions - Torts Law

Omissions

Was there an omission?

• The common law has traditionally distinguished:

  • Misfeasance : acts causing harm

  • Nonfeasance: omissions or failures to act resulting in harm

• Generally, there is no legal duty to take positive steps to assist another to avoid harm, because:

  • There should be a limit on the legal burdens imposed on individuals

  • Something more than physical proximity to a situation of danger ought to guide legal responsibilities to others

  • The problem of causation in failure to act situations

Was it a mere omission?

• Generally, where the failure to act can be seen as part of a broader activity which does involve a positive act (e.g. failing to look when you change lanes), the case will not be treated as involving a mere omission

• Consideration of precedent is also useful in characterising whether your case is one of mere omission

Creation of Danger

• Can a defendant be liable for failing to eliminate a danger that she has (without negligence) created?

  • McKinnon v Burtatowski [1969] VR 899: left open whether, if a motorist (without negligence) creates a hazard to other motorists, she thereby incurs a duty to remove or warn of the hazard

  • Lawes v Nominal Defendant (2007) 48 MVR 125: where a person creates a danger – initially without fault– they have a duty to exercise reasonable care to prevent that hazard from harming others

McKinnon v Burtatowski

• Facts:

  • D whilst acting in course of employment as a taxi driver collided with a horse and such collision was caused by D’s negligence

  • As a result, the horse was injured and ended up on the road. The P collided with the horse

  • P alleged it was caused by negligence of the D

• Held:

  • to find that a driver who unexpectedly has collided with a horse on a dark and rainy night is bound to act reasonably to give warning of situation to oncoming traffic within one minute, is to insist on a far higher standard of care then the legal standard of reasonable care justifies

Lawes v Nominal Defendant

• Facts:

  • P was injured when the motorcycle he was riding struck a horse

  • Collision occurred in the evening, there were not properties around, and there was no lighting

  • P was travelling at about 100km/h and he struck the horse with his motorbike

  • He was thrown off, lost consciousness and was injured

• Held:

  • the course was lying in the middle of the road, probably because it was hit by another motor vehicle

  • The collision between the vehicle and the horse could have readily happened without any breach of duty and the P had not shown that it was more probable than not that the impact between horse and vehicle did not result from negligence

  • The driver of the unidentified vehicle had created a danger, and that circumstance attracted a duty to exercise reasonable care to prevent that hazard to prevent other kinds of road users

  • The unidentified drier’s negligence caused P’s injuries

  • 80-20% in P’s favour

Defendant has control of the situation

Goldman v Hargrave [1967] 1 AC 645

A landowner has a duty to take reasonable care to remove a hazard from their land not of their creation where he or she:

1. knows of the hazard;

2. has the ability to foresee the consequences of not checking or removing it; and

3. has the ability to remove it.

• Facts:

  • Middle of summer

  • There was a tree on D’s property

  • It was struck by lightening and began to burn more than 25 metres above the ground

  • The next morning the D summoned the fire officers and it was cut down

  • D cleared area around and mounted a tank to spray area around

  • Trial judge found that the D hadn’t done everything that could be expected for any future danger, and without much effort the D could have totally removed the problem, but he didn’t take those steps

  • Couple days later, the fire revived due to weather and spread to neighbouring properties

• Held: Privy council found that there is a duty of occupiers in relation to hazard on their land

Reasonable Reliance, Dependency & Assumption of Responsibility

• There has been different approaches adopted from different judges

• Preliminary points:

  • The approaches adopted by the various judges, and the factors they rely upon, are slightly different;

  • The cases involve public bodies that undertake or have particular responsibilities. However a number of the approaches relied upon by the judges can be applied, either unmodified or modestly modified, to private individuals;

  • In essence, these cases apply a salient features approach;

  • Where the D is a public body – there are statutory provisions elaborating on duty and breach to consider

Sutherland Shire Council v Heyman (1985) 157 CLR 424

• This case involves an omission – the claim is that the D had to take positive steps to avoid harm to the P

• A duty to take positive action can arise where the D has undertaken to perform a task and as a result has led the P to rely upon that task being performed.

• EG. Adopting a practice that induces the P to reasonably expect that the D will adopt such a practice in the future

• Facts:

  • D (council) gave approval for a house to be erected on steeply sloping land

  • The approval was subject to a number of conditions, including that the council be notified at various points during the house’s construction (one included the laying of foundations) and there was to be no occupation until it was inspected and passed by council

  • 1975 P purchased the house, after heavy rains serious showed that the foundations were inadequate and unsafe due to the negligence of the builder

  • Although repairs were carried out, they could not sufficiently address the problems and the house lost value

  • This loss was pure economic loss. Builder could not be found, so P sued council

  • There were council records which revealed only one notification from the builder on which a council inspector had written “frame ok”. Never permission to occupy the house

  • P alleged council had an obligation to enforce regulations and it had either carelessly inspected or negligently omitted to inspect the foundations that had been negligently erected by the builder

  • The action proceeded on the basis that the council had omitted to make the inspection

  • D argued that it had made no representations to the P regarding condition of house before purchase and P had never applied to council for a certificate indicating if the house was build in compliance with building regulations.

  • Claim was the D had to take positive steps to avoid harm SEE ABOVE

• Held:

  • no duty of care, but left open the possibility that in appropriate circumstances the liability could extend to the negligent non-exercise of a discretionary power vested in the local authority

  • The reasoning differed:

  • Pffs were in essence complaining about the failure by a statutory authority to protect them from harm caused by the builder. In order for a duty of care to arise in such circumstances, there is a need to show that the authority should have foreseen that the Pffs would rely on it and that damage would follow as a result.

  • As a general rule, a public authority which is under no statutory obligation to exercise a power comes under no common law duty of care to do so. But an authority may by its conduct place itself in such a position that it attracts a duty of care which calls for the exercise of the power (at para 459).

  • Specific Reliance or Dependence: where the D through its own conduct places itself in such a position that others rely on it to take reasonable care for their safety

  • General Reliance or Dependence: where there is general community reliance on the D to exercise its powers with due care because they are designed to prevent a risk of personal injury against which individuals cannot adequately protect themselves

  • General Reliance

  • “There will be cases in which the P’s reasonable reliance will arise out of a general dependence on an authority’s performance of its function with due care, without the need for contributing conduct on the part of a D or action to his detriment on the part of a P. Reliance or dependence in this sense is in general the product of the grant (and exercise) of powers designed to prevent or minimize a risk of personal injury or disability, recognized by the legislature as being of such a magnitude or complexity that individuals cannot or may not take adequate steps for their own protection. This situation generates on one side (the individual) a general expectation that the power will be exercised and on the other side (the authority) a realization that there is a general reliance or dependence on its exercise of power …the control of air traffic, the safety inspection of aircraft and the fighting of a fire in a building by a fire authority… may well be examples of this type of function” (Mason J at para 464)

Pyrenees Shire Council v Day (1998) 192 CLR 330

• 3 of 5 judges rejected the principle of general reliance or dependence as a legal fiction with no place in determinations of duty

• Further, there was no specific reliance here – neither P actually expected the D to fix the fireplace, nor were they relying on D to do so.

• Facts:

  • Mr and Mrs. S rented premises is Beaufort. Part of the premises was a fish and chip shop and the other half was a residence. They rented the premises from the previous tenants.

  • One night, Mr S lit a log fire, shortly after midnight awoke to find place on fire

  • Entire premises destroyed and spread to Day’s shop

  • Mr. S did not know the chimney was unsafe, the previous tenant did as did the council

  • This was because two years earlier the CFA had attended the premises because someone was concerned there was a fire developing in the chimney

  • CFA told Mr. T that...