Week 7 Special Negligence Cases: Omissions PART 1
Special Negligence Cases:
Omissions PART 1
something that was not done
no liability at common for pure omissions
Physical Harm caused by omissions
Duties to third parties
General rule: the common law imposes no obligation on a person to control the actions of another (Smith v Leurs (1945) 70 CLR 256); see also Modbury Triangle Shopping Centre v Anzil (2000) 205 CLR 254.
Certain relationships give rise to protective duties usually to protect the P from dangers of others
Occupier and visitor: Chordas v Bryant (1988) 92 FLR 401, but see Modbury Triangle v Anzil
Employer and employee: eg Chomentowski v Red Garter (1970) 92 WN (NSW) 1070; Gittani Stone Pty Ltd v Pavkovic  NSWCA 355.
Parents and children: Smith v Leurs; H v Pennell (1987) 46 SASR158. See also Cth v Introvigne (1982) re Schools and pupils.
degree of control will vary with age of the child
Teachers/Schools and children: Carmarthenshire County Council v Lewis  AC 549 (Council liable for 4yr old who ran on road and caused accident)
Lifeguards and swimmers: Swain v Waverley Municipal Council (2005) 220 CLR 51
Protection from P own conduct
Pub and drunk patrons: eg. CAL No 14 P/L v Motor Accidents Insurance Board (2009) 239 CLR 390 (no liability). See also Cole v Sth Tweed Heads Rugby League Football Club (2004) 217 CLR 469. CLAs also take harsh line against intoxicated Pls.
Cf Police and self-harmers: Stuart v Kirkland-Veenstra  HCA 15.
P committed suicide after initial interception by the police. Police were sued for not implementing control under the Mental Health Act. Duty was not found to exist. However this was considered to be an operational decision so was reviewable by the court
Omissions and Duty to rescue
no general duty of care for pure omissions
The law “casts no duty upon a man to go to the aid of another who is in peril or distress, not caused by him” (per Windeyer J in Hargrave v Goldman (1963) 110 CLR 40 at 66)
Foreseeability of injury or death is not sufficient to create duty
Lowns v Woods (1996) Aus Torts Reps 81-376 (NSWCA).
certain relationships may have a duty of affirmative action e.g employer and employee
Horsley v Maclaren (The Ogopogo) (1971) 22 DLR (3d) 545 (SCC).
Includes protective rship between Def and Pl; and protective rship between Def and third party
scope of the rescue can only extend to take reasonable care
Some protection offered by Good Samaritan legislation in other states; in Qld, see Pt 5 of the Law Reform Act 1995 (Doctors and Nurses only)
There is some protection for volunteers under the CLA s39, but no specific provision for Good Samaritans
If rescuer hurt during rescue, defence of volenti non fit injuria no longer applies.
“Danger invites rescue”, thus Def generally liable to foreseeable rescuer also. See Russell v McCabe  NZLR 392 for good history of action.
Once embarked on rescue, do you need to succeed to avoid liability?
Most believe no – unless you made the situation worse or by discouraging others from coming to help (eg. Kent v Griffiths  QB 36).
no special relationship giving rise to a DOC obliges the police or other rescue services to respond to emergency calls: Alexandrou v Oxford  4 All ER 328; Costello v CC of Northumbria Police  1 All ER 550. See also Stuart v Kirkland-Veenstra
Circumstances may exceptionally arise when police assume responsibility giving rise to DoC: but see discussion in Hill v CC of West Yorkshire  1 AC 53 (Mother of girl murdered by 3rd party sued police for negligent investigation. No duty owed by police to murder-victim of 3rd party); Van Colle v CC of Hertfordshire Police  UKHL 50; and Stuart v Kirkland-Veenstra (2009) 237 CLR 215.
Consider UK cases of Capital and Counties v Hampshire County Council  2 All ER 865 (recovery allowed where Def turned off sprinklers making matters worse); and Kent v Griffiths  QB 36 (Liability imposed for the delayed ambulance once Def accepted call. No duty to accept call, but once they did , owed a duty to take reasonable care).
CLA s26 and s27 provides protection to emergency services in Qld