WorksheetsLA2020 Workshop 3
Total questions: 8
Worksheet time: 4mins
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.
