omissions

omissions

1. mere ommissions

   • no liability is imposed on D for mere ommission or nofeasance
   • mere ommission arises only where the risk of injury to the P did no create or increase the risk of injury
     • there is no duty to take affirmitative action to avoid a reasonably forseeable risk of harm to that the d ad not created or contributed to; agar v worsley
   • if the person did not create harm then no obligation to warn or help ; pyrenees SC v day
     • exceptional circumstances where a duty to take postitive action is imposed
       • if parties relationship had special features; modbury triangle shopping centre pty ltd v anziil
         • protective relationships; C.A.L no 14 pty ltd v motor accidents insurance board
           • doctor generaly no duty to aid a stranger;Cf Lowns v Woods
   • duty to protect P from 3rd party criminal
     • No general duty to control the actions of another to prevent harm to strangers ;Kirkland-Veenstra v Stuart
       • Modbury Triangle Shopping Centre Pty Ltd v Anzil
       • exceptions
         • protective relationships such as hospital and patient, employer and employee, school and pupil; prison authority and prisoner (New South Wales v Bujdoso)
         • power to control TPs actions or the danger on the premises Adeels Palace Pty Ltd v Moubarak
         • karatjas v deakin university
   • duty to protect p from self harm
     • generally no duty; stuart v kirkland-veenstra
   • duty to protect P from intoxication-related injuries ; C.A.L 14 pty ltd v motor accidents insurance board

2. definition

   • A failure to act is not an omission if the risk of harm to P was created or contributed to by P
   • A mere omission refers to a failure to act in situations where the defendant did not create or increase the risk of injury to the plaintiff (a situation that P has not brought about) Agar v Hyde; Agar v Worsley (2000) 201 CLR 552, p 578

3. failure to act that are not ommissions

   • Failure by the driver of a car to apply the brakes of a car: Deane J in Sutherland SC v Heyman
   • Failure by an occupier of land to manage a risk arising from the state of the premises Vairy and Mulligan;
   • failure by a defendant who is operating an activity or business to take reasonable steps to ensure the safety of participants: see eg Woods v Multi-Sport Holdings
   • A failure of a medical practitioner to provide appropriate treatment or advice to a patient with whom they’re consulting: see eg Rogers v Whittaker

4. liability of statutory authorities for failing to excersice a statutory power

   • Liability of a PA where it has failed to exercise a discretionary statutory power to avoid a rf risk to P
   • Section 85 Wrongs Act: ‘In a proceeding, the fact that a public authority exercises or decides to exercise a function does not of itself indicate that the authority is under a duty to exercise the function or that the function should be exercised in particular circumstances or in a particular way.’
   • General rule: PA is not under a duty to act merely because it knows of the risk of harm and has the statutory power to avert the harm Kirkland-Veenstra v Stuart [
   • control factors p must shoe
     • a) PA knew, or ought to have known, of a risk of harm to a specific class of persons of which P is one; and
     • b)PA was in a position to directly control the risk;
     • c) P was vulnerable and dependent on PA to protect against the risk (risk of such magnitude or complexity that P could not protect own interests);
     • d) The power was passed for the benefit of P or a class to which P belongs, rather than for the benefit of the public generally (liability is determinate)
     • e) The failure by the PA was an operational matter rather than a policy determination; and
     • f) The imposition of liability would not be inconsistent with the statutory scheme.
   • policy v operational decision
     • Policy decisions not actionable A decision based on financial, economic, political, social or environmental considerations
     • Legislative or regulatory action (or inaction)
     • Governmental decisions on budgetary allocations not actionable
   • highway; Immunity now overturned Brodie v Singleton SC Road Management Act 2004 (Vic) S 102: not liable for failing to act to repair a defect or deterioration in the road or remove a hazard from the road unless the road authority had actual knowledge of the particular risk which resulted in the harm
   • Ghantous v Hawksbury CC Footpaths must be safe for persons exercising a reasonable ‘lookout’: pedestrians expected to exercise care by looking where they’re going and noting obvious hazards such as uneven paving, tree roots or holes