Balkin and Davis pp. 203-227

A Summary of the B+D Reading for Week 4.

N.B - This current summary of B&D follows the Lecture 4 outline. Many issues were raised within the chapter and only those that were thought to be raised in the lecture have currently been included here. A true reflection of the summary is from page 203 to approximately 217, with a few pages omitted in between.


It remains a truism that the common law imposes no prima facie general duty to rescue or protect another from or to warn another of reasonably foreseeable loss or injury not created by oneself. There is a distinction however between a failure to act and a positive action
In the former, liability is exceptional and arises only when there is a duty to act. In the latter instance, liability is presumed unless it can be excused or justified.

Mere omissions

Whether the failure to act is the only conduct causally linked with the plaintiff’s harm, the failure to act is said to be a ‘mere’ omission and no liability will ensue.
Example: X, a passerby, witnesses a road accident but does not take the trouble to summon medical assistance on his mobile phone. Although X can foresee that the victim might die if aid is not forthcoming, X is not liable for this omission.

Duty to act

For such a duty to operate, in addition to the foreseeability of injury or damage, the relationship between the tortfeasor and the victim must contain some feature which makes it reasonable for the law to impose liability for failure to act. The ownership, occupation or use of land may be such a feature. So may an earlier act of the defendant.

  • Example: Person creates a danger, the fact that an omission is the immediate cause of harm will not prevent liability from arising.

Alternatively, a duty to act may stem from the undertaking of a task which leads another to rely on it being performed, or the ownership, occupation or use of land or chattels.

  • Example: A solicitor’s duty to disclose the existence of a will to the executor arises not only from the foreseeable consequences of non-disclosure but also from the solicitor’s custody of the will after the death of the testator, the nature of the will and the purposes for which custody is accepted.

Special relationships

Some relationships have traditionally been held by the courts to contain special features that give rise to a positive duty to take reasonable care to prevent or reduce the risk of harm. These include:

• Contractual relationships
• Non-contractual relationships where there is a foreseeable risk of harm ensuing if the work voluntarily undertaken is done carelessly
• Fiduciary relationships
• Employment relationships
• Relationships between occupiers of adjoining land

1. Pre-existing relationships

Teachers and school authorities

Teachers and school authorities owe pupils in their charge a duty to take reasonable care to protect them from a reasonable foreseeable risk of injury, although not to insure against harm.
That duty is not necessarily confined to events on school premises or during school hours. The question to be asked is whether, given the particular facts of the case, the school authority/pupil relationship subsists. Assuming it does, the nature and extent of the duty is again fact-dependant.


Recognised as giving rise to a duty of care on the part of the doctor.
The duty is broadly based, covering all the ways in which a doctor is called upon to exercise his or her skill and judgement. It includes a duty to take positive action and many cases revolve around the failure of a doctor to warn of risks or to give advice on the effectiveness of a medical procedure.

Prison authority and prisoner

Prison authority/prisoner is recognised as giving rise to a positive duty.
However, the degree is of dependence in this situation is not to be equated with that in the case of a school teacher or nursery governess with regard to the children entrusted in their care. The charges of the gaoler are adults, not children. It has accordingly been held that the duty owed to a prisoner is correspondingly less than that of a school teacher or nursery governess.

A wardress, therefore, will not be liable for failing to warn an elderly female prisoner working in the prison laundry of the dangers of her job. Although she might be liable if she instructed the prisoner to do a particular task where she could reasonably be expected to foresee would be likely to cause the prisoner physical harm.

Prison authorities have also been held responsible for failing to take reasonable care to prevent prisoners being assaulted by other prisoners (particularly when the prisoner is a known likely target) and for omitting to keep remand or unsentenced prisoners apart from convicted or sentence-serving prisoners, thus exposing them to sexual and physical assault. Similarly been held liable for failing to conduct thorough searches of prisoners prior to locking them in their cells.

It is now beyond doubt that police officers owe a duty to take reasonable care to prevent prisoners, or at least those with known suicidal tendencies, from killing themselves.

2. Duty to control the acts of third parties

As a general rule, the common law imposes no obligation on a person to control the actions of another. Foreseeability of injury to another is not itself sufficient to create a duty even where the circumstances are such that a person would incur no personal risk in assuming control. The act of the third party is regarded as a new and independent cause.

Parent and child

Parents as a class will generally not be held liable for the wrongful acts of their children. Nevertheless, parents who do have the immediate physical care and control of a child will be responsible for negligence in the exercise of that control if injury results.

Parental control, where it exists, must be exercised with due care in order to prevent the child inflicting intentional damage or carrying on in a fashion likely to cause foreseeable risk of injury to others. The degree of control will vary taking into account such factors as the age of the child, its level of perception, the nature of the activity and its location.

Smith v Leurs (1945) 70 CLR 256

HCA unanimously dismissed a tort action against a parent whose 13-year-old child had injured another child while engaged in play with a shanghai.

Starke J held that the question whether parents have exercised the care that reasonable prudent parents would have exercised in the control of a child is one of fact having regard to all circumstances of the case.
In the present case the relevant circumstances included the fact that the son had been warned about and was old enough to comprehend the dangers of using a shanghai, as well as the fact that he had disobeyed his father’s instruction not to use the shanghai away from home. The shanghai, moreover, was a plaything which general use had not shown to be particularly dangerous.

To have held the defendant liable in light of these facts would be to impose on parents an unrealistic high standard of control.

Prison authority and prison escape

Prison officers, by virtue of the custody which they exercise over prisoners, have a duty to control at least those prisoners with known dangerous tendencies. This duty means that a prison officer who negligently allows a dangerous inmate to escape may be liable for any ensuing injury or damage caused by the escapee. The class of person to whom the duty s owed tends to be narrowly confined by the courts due to an understandable reluctance to case the net of liability too wide.

Statutory Powers

The common law has recognised that a public authority may be subject, in appropriate circumstances, to a duty of care in the exercise of its statutory powers.

Whenever this duty exists, the statutory powers so conferred must be exercised with reasonable care so that if those who exercise them could by reasonable precaution have prevented an injury which was occasioned, and was likely to be occasioned, by their exercise, damages for negligence may be recovered.