Omissions and Duty to Act

Which is the best definition of 'nonfeasance'?

• Not doing anything.

• Positive act of wrongdoing.

'The careless or malevolent person, who stands mute and still while another heads for disaster, generally incurs no liability for the damage the latter suffers': McHugh J in Pyrenees Shire Council v Day.

To what is McHugh J referring?

• Misfeasance

• Nonfeasance

What are three policy reasons militating against a duty to act?

Generally, there is no duty to act. However, sometimes there will be a duty to act to protect or rescue others. A duty to act will be imposed where there is a __________ ___________________ between the P and D.

Which of the following relationships may give rise to a duty to protect?

• Occupiers to entrants

• Doctors to patients

• Prison authorities to prisoners

• Zookeepers to animals

Do the parties have to be in a recognised 'special relationship' (eg parent/child) for a duty to be imposed?

• No

• No, because it is not the relationship that gives rise to the duty

• It is the nature of the relationship that makes it more likely a duty will be imposed (eg presence of 'assumption of responsibility', 'reasonable reliance', etc)

• Yes

Referring to the case of Crimmins v Stevedoring Industry Finance Committee (1990) 200 CLR 1, what is one salient feature that should be present for a special relationship to exist between a statutory authority and the plaintiff?

Answer explanation

The authority has the ability to control risk; P was vulnerable.

Referring to Skillen v State of New South Wales, why might a court be reluctant to impose a duty to act on a statutory authority?

Answer explanation

Could potentially conflict with other duties and obligations.

Police officers' primary responsibility is to detect and prevent crime and in that attending the scene of the accident, their task was not only to remove the body, but to investigate the circumstances of the accident and manage the emergency.

If a duty was imposed, this would have required the police to devote additional resources to make sure that the debris and remnants of the accident were removed from the scene, and that could divert police from their statutory duties and obligations.

When will a special relationship exist between a parent and their child?

• Parent leaves two young children alone in a car

• Parent, who was installing turf, took young child to property with a pond

• Parent has created a situation of danger.

• Parent has placed the child in or near a situation of danger and was or ought to have been aware of the risk.

What is the meaning of loco parentis?

Answer explanation

Person is in a position to control or supervise the child.