Supervision and Control of Others

This involves 2 duty situations:

   1. Duty to control others to prevent damage to 3rd parties.
   2. Duty to protect others under D’s control.
 
In general the common law does not impose a duty to control the actions of others: No duty arises simply because one can foresee the likely risk of injury from conduct of another
Parents cannot be generally held liable for the conduct of their children. However where D is shown to have parental control D has a duty to exercise reasonable care to prevent the child from inflicting damage on others. Whether D has exercised the appropriate level of care is a question of fact à Smith v Leurs

The Facts: Parents entrusted their son with a weapon, owed a duty of care to other persons based on their special relationship of control over the boy, However, they seek assurance that he wont use the weapon outside the house, thus no duty for injuries outside the home.

Teachers and school authorities may also have a duty of care with respect to the activities of the children in their care
 
Police and Government authorities:

- Hill v Chief Constable of West Yorkshire (Failure to control criminal behaviour; No duty on the grounds of policy) Police held no duty of care to members of the public apprehend a particular criminal due to policy considerations by High Court.

The duty to control others: Children

Þ Geyer v Downs (school kid hit with softball bat before school – school guilty because they were there)
Þ No recognition of a parent’s duty as such to look after a child.
Þ Robertson v Swincer (4 year old hit by car while parents talking to friends – contributory negligence? Parents owe duty of care?
Þ ”The prospects of a parents assets being at risk because of a momentary failure of supervision judged by a court against an objective standard of reasonable care has alarming personal implications for parents and disturbing implications for society generally”
Þ Depends on facts à Circumstances à Reasonably Foreseeable
 
Supervision of Others: The Issue of Liability

Liability may arise where there is a relationship between the custodian and the victim “which exposes that person to a particular risk of damage in consequence of that escape which is different in its incidence from the general risk of damage from criminal acts… which he/she shares with all members of the public”

Swan v South Australiaà The parol board was under a duty once informed about the conduct of the prisoner on parol.
 
Public Authorities

Part 5 of the Civil Liability Act (Sections 40 to 46) à Discussed in Defective structures under Councils & Statutory Authorities.

• Section 42 sets out the principles to determine duty of care exists or has been breached (ie. financial and other resources reasonably available, allocation of resources, broad range of its activities, and compliance with the general procedures and applicable standards)
• Section 43: act or omission not a breach of duty, unless it so was unreasonable that no authority having the functions in question could properly consider it as reasonable.
• Section 44: Removes the liability of public authorities for failure to exercise a regulatory function if the authority could not have been compelled to exercise the function under proceedings instituted by the Plaintiff.
• Section 45: Restores the non-feasance protection for highway authorities taken away by the High Court in Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001)

“When a statute sets up a public authority, the statute prescribes its functions so as to arm it with appropriate powers for the attainment of certain objects in the public interest. The authority is thereby given a capacity which it would otherwise lack, rather than a legal immunity in relation to what it does, though a grant of power may have this effect when the infliction of damage on others is the inevitable result of its exercise… There is, accordingly, no reason why a public authority should not be subject to a common law duty of care in appropriate circumstances in relation to performing, or failing to perform, its functions, except in so far as its policy-making and, perhaps, its discretionary decisions are concerned” (per Mason J in Sutherland Shire Council v Heyman)

Public Authorities & Rule of Law

Applying the same rules of civil liability to the actions of public authorities or corporations.

Þ The rationale: No legal or natural person is above the law.
Þ The difficulties: The rationalisation and provision of public utilities and community facilities necessarily distinguish public corporations from ordinary citizens.

Basic concepts: - Breach of duty à Breach may be act (misfeasance) or omission (non-feasance)

*Not every non-feasance provides basis for liability.

Þ Negligent omissions are actionable
Þ Mere/neutral omissions are not actionable unless the D is under a pre-existing duty to act - South Tweed v Cole

Powers and Duties

Duty - Obligation to act. The statutory provision/function is cast in mandatory terms.

Þ Once content of duty is determined, the question of breach is a question of fact.
Þ Breach duty attracts liability.

Power - Statutory function cast in permissive terms.

Þ Confers on the power holder a choice to act in a particular way.
Þ Failure to exercise choice may not be illegal.

Power = Choice (Statute use of the word “may”)
Duty = Obligation (Statute use of the word “shall”)

PUBLIC AUTHORITIES: The Planning & Operational Dichotomy

Planning decisions of public authorities as based on the exercise of policy options or discretions and involving or dictated by social or economic considerations are in general non-reviewable and would not provide the basis for a duty

The distinction between policy and operational factors is not easy to formulate, but the dividing line between them will be observed if we recognise that a public authority is under no duty of care in relation to decisions which involve or are dictated by financial, economic, social or political factors or constraints

Operational decisions by which policy decisions are implemented are however subject to the duty of care, as seen in,

L v Commonwealth (sexual abuse in prison, D held liable for operational failures)

Parramatta CC v Lutz (1988) - failure to order the demolition of building P’s property catches fire (Discussed in Defective structures under Councils & Statutory Authorities.)

The Facts: Plaintiffs complained to council about a vacant house next to hers. She complained that if a fire broke out it could be a risk to her property. Council served a notice to the owners of that house that if the problem wasn’t rectified in 60 days, the council will intervene. 60 days passed and council did not intervene, a fire broke out and the plaintiff’s house was destroyed.
The Decision: The council was held liable in negligence to the plaintiff. The courts held that the council was negligent in the exercise of statutory powers and the basis of the plaintiff’s detrimental reliance of the council. In other words, the council had moved from the discretionary into the operational area.

Intra Vires + Policy = Not actionable
Ultra Vires + Policy = Actionable
Not Policy but operational = Actionable