LAW 1507 Lecture Notes - Lecture 6: Sutherland Shire, Vicarious Liability, Special Relationship
23 May 2018
School
Department
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Professor
Omissions (under standard of care enquiry)
The law seldom imposes a positive duty to act to protect others, however, there are
exceptions.
Misfeasance: Act causing harm to another
Nonfeasance: Omission causes harm to another
A a o the eah is ot legally bound to plunge into the sea when he can foresee
that a sier ight dro per Brennan J, Sutherland Shire Council v Heyman
Two situations which a law imposes a duty to act
1. Where there is a special relationship between the plaintiff and the defendant giving
rise to a duty to take positive action to ensure safety of P
2. Special relationship between the D and a third party such that the D is required to
take positive action to ensure that he third party does not cause damage to others
Special relationships
1) Parents to Children
a) libility for negligent acts causing injury to their child
b) liability may also extend to those caring for the child and loco parents
o dut of are of geeral superisio of their hilds aiities
d) duty may arise if the parent either fails to supervise an inherently dangerous
activity or they themselves create the danger
e) not vicariously liable for their childrens torts
Robertson v Swincer (1989) 52 SASR 356
Difficult to set out readily recognizable standards
a) Alarming personal implications for parents and disturbing social implications
b) Difficult to insure against
c) Discourage others from looking after children
d) Would really destroy any benefit of payment
e) ** The court suggested that the situation may have been different if the parents
had created the danger (ie called the child back)
2) Educational institutions authority to pupils
a) Vicarious liability as employer of the teachers
b) Non-delegable duty by virtue of the negligence of its delegates
c) Occupiers liability for entrants onto their land
d) Statutory obligations (beyond the scope of our discussions)
Liability arises when
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a) School hours while pupils are on premises;
b) before and after school hours, to exercise supervision if the school allows pupils
onto premises or allows them to remain;
c) proper supervision of pupils on school trips or holiday outings which ae part of
school activities;
d) supervision of boarding arrangements on busses provided by the school and the
behaviours on those busses;
e) where the school becomes aware of particular dangers to its pupils outside school
hours;
f) where the school is aware that a parent is to pick up the pupil but fails to ensure
that the pupil remains on premises
Richards v State of Victoria [1969] VR 136
Commonwealth of Australia v Introvigne (1982) 150 CLR 258
A school authority owes to its pupil a duty to ensure that reasonable care is taken of
them whilst they are on the school premises during hours when the school is open for
attendance
The immaturity and inexperience of the pupils and their propensity for mischief
suggest that there should be a special responsibility on a school authority to care for their
safety
State of Victoria v Subramanian [2008] VSC 9
The principal and the teacher owed to the respondent a duty to take reasonable care
for his safety – not a duty of insurance against harm but a duty to take reasonable care to
avoid harm being suffered
Australian Capital Territory v El Sheik (2000) Aust Torts Reports 81-577
... it would require an army of supervisors to prevent any incident that might give rise
to a phsial ijur
and
…Unless an educational authority was prepared to impose a degree of regimentation
that would be likely to provoke adverse community reaction, it would be impossible for it
to preet suh iidets ourrig.
Parkin v ACT Schools Authority [2005] ACTSC 3 (28 January 2005)
Recognized a lesser duty in the playground than in the classroom.
Significant point: The injury was not only foreseeable but was foreseen. Known to be
reckless.
Bullying: Cox v State of New South Wales (2007) Aust Torts Reports 81-888
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Document Summary
The law seldom imposes a positive duty to act to protect others, however, there are exceptions. Nonfeasance: omission causes harm to another (cid:862)a (cid:373)a(cid:374) o(cid:374) the (cid:271)ea(cid:272)h is (cid:374)ot legally bound to plunge into the sea when he can foresee that a s(cid:449)i(cid:373)(cid:373)er (cid:373)ight dro(cid:449)(cid:374)(cid:863) per brennan j, sutherland shire council v heyman. Richards v state of victoria [1969] vr 136. Commonwealth of australia v introvigne (1982) 150 clr 258. A school authority owes to its pupil a duty to ensure that reasonable care is taken of them whilst they are on the school premises during hours when the school is open for attendance. The immaturity and inexperience of the pupils and their propensity for mischief suggest that there should be a special responsibility on a school authority to care for their safety. State of victoria v subramanian [2008] vsc 9.
