Omissions+-+Duty+of+Affirmative+Action

E.g. person drowning, you owe not DOC to rescue them, even though its reasonably foreseeable that if you don’t help them, they will die.
 * GENERAL RULE** – No DOC is owed for omissions, even if it is foreseeable and you don’t act.


 * __Creation of Danger__**
 * If D creates a danger, they will be negligent if they do not remove it or warn others of it if removal is not possible: **//McKinnon v Bernatowski; Ticehurst v Skeen//**.


 * __D has control of situation__**
 * If the D has control of the situation, they may be under a duty to take positive action they may not otherwise be under. This will apply in the very specific circumstances where there is a hazard on someone’s property which they have not caused: **//Goldman v Hargrave//**.

A landowner has a duty to take reasonable care to remove from her land any hazard if:
 * à Applies to Responsibility of Landowners**
 * She knows of the hazard
 * It is reasonably foreseeable that failure to remove the hazard might cause damage to her neighbours; and
 * She is able to remove the hazard.


 * __Reasonable Reliance, Dependency & Assumption of Responsibility__**
 * If a person assumes responsibility to undertake an act, and another person relies on them to undertake the act, the person who assumed the responsibility may be under a duty to the person who relied on them to undertake the act.

(a) The functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions; (b) The functions required to be exercised by the authority are to be determined by reference to the broad range of activities (and not merely by reference to the matter to which the proceeding relates); (c) The authority may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceeding relates.
 * à Applies to Statutory Authorities**
 * s.83 –** the court is to consider the following when deciding whether the body has breach a duty of care:


 * à Case law**
 * A duty to take positive action may arise where the D undertakes to perform a task, and as a result, the P relies on the task being performed: **//Southerland Shire Council v Heyman//**.
 * A public authority will not owe a duty to anyone positively to exercise statutory powers they may possess unless it places itself in a position such that others rely on it for their safety. To be in such a position the public body must foresee two things: (1) the P would rely on it to exercise its statutory power where the reliance is reasonable; and (2) the P would suffer damage as a result of the Ds failure to exercise the power: **//Southerland Shire Council v Heyman//**
 * Members of the community that rely on councils to remove danger, and specific reliance will point towards there being a duty: **//Parramatta City Council v Lutz//**.
 * The court can look at Salient Features, such as vulnerability, and indeterminate liability: **//Paramatta City Council v Lutz//**


 * à Salient Features: //Graham Barclay Oysters//**
 * Control exercised by the authority over the risk of harm that eventuated
 * Vulnerability of those who depend on the authority to properly exercise its powers
 * Indeterminate Liability
 * Reliance – community reliance is not enough to give rise to a duty. Certain situations, such as keeping a child care centre up to code, or that deficiencies in rental properties are fixed may give rise to a DOC: **//Privity Shire Council v Day//**.
 * Financial restraints the council/authority may be under: **//Privicty Shire Council;// and s.83**


 * __Special Relationships between P and D__**
 * à Student/Teacher**
 * Teachers owe a DOC to their students to protect them from reasonably foreseeable risks of injury, because school children need supervision, and by virtue of being a teacher, they have taken charge of students: **//Geyer v Downs//**.


 * à Parent/Child**
 * There is no actual positive duty for a parent to take care of their children: **//Roberston v Swincer//**.
 * However the fact that the D is the Ps parent points strongly towards the fact that the D owes a duty for another reason, particularly control of the situation and assumption of responsibility.


 * à Prison Authorty/Prisoner**
 * There is a positive duty to care for prisoners, because the captor assumes control of the captee and deprives them of their liberty: **//Howard v Jarvis//.**


 * à Other relationships:**
 * Doctor/patient
 * Carrier/passenger
 * Hotelier/patron
 * Bailee/bailor of goods


 * __Special Relationships between D and 3rd Party who causes damage or loss to P__**
 * à Student/Teacher**
 * A teacher may owe a duty to a 3rd party that their students not injure them: **//Carmanthenshire County Council v Lewis//**.


 * à Parent/Child**
 * A parent who has immediate physical control of a child will be liable if they fail to exercise reasonable care to prevent the child from injuring a 3rd party: **//Smith v Leurs//**.
 * May be possible to argue less foresight/understanding if child is particularly young: **//McHale v Watson//**


 * à Babsitters**
 * A child minder is under a similar duty to that of a parent: **//Kerr v Allen//**.
 * The court made a number of considerations in **//Kerr v Allen//**:
 * The children were very young
 * The D had agreed to mind them, they hadn’t simply turned up
 * The D clearly owed a duty to the mother, and it was not going too much farther to say that she also owed a duty to 3rd parties.
 * Presumably a normal child would wander home if unsupervised, so it was not far fetched to foresee this happening
 * The P's house was only 70m from Ds


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