#6920 - Torts B Summary Omissions - Torts Law

OMISSIONS: particular duty scenarios

• Generally, there is no legal duty to take positive steps to assist another to avoid harm, because but there can be a duty to act if the claim against the D a mere omission?

  • What is 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

    • LOOK AT PRECEDENTS

      1. Leaving things on road McKinnon v Burtakowski

• If yes, apply any and all applicable categories that may give rise to a duty to take positive action

• Scenario: Was there a creation of danger? Can the defendant be liable for this?

  • Reasonable foreseeability test, not ‘far-fetched’ or fanciful Sullivan v Moody

  • Did D create the danger without negligence?

  • Relevant case law on motorists:

    • McKinnon v Burtatowski: 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

      • Time limit of the subsequent act may be relevant

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

• Scenario: Was the hazard on the D’s land?

  • Reasonable foreseeability test, not ‘far-fetched’ or fanciful Sullivan v Moody

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

    • knows of the hazard;

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

    • has the ability to remove it.

  • What action does the duty entail?

• Scenario: RELIANCE/DEPENDENCE & ASSUMPTION OF RESPONSIBILITY: The Council Cases

  • Reasonable foreseeability test, not ‘far-fetched’ or fanciful Sullivan v Moody

  • Does not arise:

    • A duty of care does not arise merely because an authority has statutory powers, the exercise of which might prevent harm to others

    • Existence of statutory powers and the mere prior exercise of those powers from time to time do not, without more, create a duty to exercise those powers in the future

  • 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. Sutherland Shire Council v Heyman

    • 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

    • Can include:

      1. 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

      2. 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

  • Also look at: Pyrenees shire council v Day

    • A duty of care was owed because the D:

1) was responsible for the continued existence of the danger;

2) was aware of the likelihood of the P coming into contact with the danger; and

3) had the means of averting the danger.

• The touchstone of the council’s duty was its measure of control of the situation including its knowledge of the danger – not shared by the P– that if the situation were not remedied the possibility of fire was great. Graham Barkley confirmed this

• also was the vulnerability of the P Graham Barkley confirmed this

• the resources of the D are relevant to the determination of duty.

• The purposes of D’s statutory powers Graham Barkley

• What action does the duty entail?

• Wrongs Act S 83

  • To help determine whether a public authority has a duty of care or has breached it, consider:

    1. Their functions are limited by their financial and other resources

    2. The functions required are determined by references to the broad range of its activities (not just the specific one)

    3. It may rely on evidence of its compliance with general procedures as evidence of the proper exercise of its functions

• Scenario: Was there a special relationship between the parties

  • Reasonable foreseeability test, not ‘far-fetched’ or fanciful Sullivan v Moody

  • The court has recognised that some relationships between P and D give rise to duties of affirmative action

    • Teacher – Student Geyer v Downs

      • A teacher will normally have a duty to supervise students during school hours

      • whether the duty extends beyond school hours depends on whether the relationship of teacher and pupil was in existence at the time and that will be a question of fact

      • If the relationship was in existence at the time of the negligent act occurred, then a duty of care will be found

    • Prison authority – prisoner Howard v Jarvis

      • A prison authority may have a duty to ensure a prisoner’s safety during detention

      • This duty arises from the assumed control taken of the prisoner’s person and their deprivation of liberty

    • Parent – Child Robertston v Swincer

      • On facts, not appropriate on policy grounds (if parents/relatives/neighbours knew they could be sued for failing to provide inadequate supervision there would be a discouraging effect on share and care)

      • Any parent will have a lapse

  • The court has recognized that a special relationship between the D and a...