LA2020 Workshop 3

Nonfeasance involves

• a positive act on the part of the defendant that causes harm to the plaintiff. 

• an omission that occurs during a positive act.

• a complete failure to act at all, i.e. mere omission.

A defendant will only owe a duty of care for an omission if

• The defendant is a TikTok influencer and the plaintiff is a follower of the defendant

• there is a ‘special’ or ‘exceptional’ relationship between the defendant and the plaintiff.

• The defendant is a financial adviser and the plaintiff has no financial experience

• The defendant is a doctor and the plaintiff lacks adequate health insurance

There are 2 kinds of situations in which the defendant is liable for harm caused by an omission case. There situations are:

 

• Duty to advise

  Duty to act

• Duty to protect

  Duty to control

• Duty to protect

  Duty to advise

• Duty to act

  Duty to protect

·       Prison authorities will not be held liable for conduct of an escaped prisoner:

• due to the embarrassment prison authorities could face.

• due to the possibility the escaped prisoner can sue the prison authority.

• due to salient features, e.g. the lack of control of the risk, and indeterminacy of liability.

Modbury Triangle Shopping Centre Pty Ltd v Anzil is authority that:

• there is no general duty for an occupier to protect against rude customers

• there is a general duty for an occupier to protect against third party criminal conduct.

• there is a general duty for an occupier to protect against third party violent criminal conduct

• there is no general duty for an occupier to protect against third party criminal conduct.

Modbury’s case is the authority that there is no general duty of an occupier to protect against third party criminal conduct. Why?

• Occupiers lack powers of citizen's arrest

• Occupiers are busy with other priorities

• The very nature of criminal activity is unforeseeable and unpredictable

The High Court in Modbury, by way of obiter, left open the slight possibility that there could be a duty to protect against third party criminal conduct where:

• there is a full moon

• there is a high degree of foreseeability and predictability of the third party criminal conduct

• shopping hours are extended for the long weekend

In Modbury, the High Court, in coming to their decision that occupiers have no duty to protect against third party criminal conduct, considered a number of salient features. One of the salient features was:

• The occupier did not assume responsibility of the risk

• The occupier does not open on Sundays

• The occupier does on open on Christmas Day.