The duty that exists is to prevent the person under

Info icon This preview shows pages 65–66. Sign up to view the full content.

View Full Document Right Arrow Icon
The duty that exists is to prevent the person under ones control from harm to another not necessarily to prevent such a person committing a tort. Kerr v Allen [1995] Aust Torts Reports 62,150 esp 62,151 - 62,161 Young children cause fire while unattended. The defendant, who had two children aged 3 and 5, agreed to mind another child aged 3 who lived in the plaintiff's house nearby. The children were left unattended at the defendant's premises. They went to the plaintiff's premises and started a fire while playing with matches. The Supreme Court of New South Wales held that the supervision undertaken by the defendant carried with it a duty to act to prevent injury to the plaintiff caused by the children. The duty assumed by the defendant extended at least to a duty of care to the child and his parent and included a duty in relation to the parent's property and properties which were physically nearby. The duty would reasonably extend to all houses which were accessible to the children, including the plaintiff's premises. There was causal proximity in that there was a close causal connection between the act (the failure to supervise) and the loss or injury (the fire which subsequently occurred) An appeal by the defendant to the NSW Court of Appeal was allowed. When the matter had first come before a magistrate his Worship held that there was no case to answer and then determined a number of factual issues. Powell JA observed that it was not open to Donovan AJ in the Supreme Court to correct errors of fact found by the learned magistrate by reason of provisions in the Local Courts (Civil Claims) Act 1970 (NSW). As his Honour's findings involved questions of fact, they must be overruled. The Supreme Court was only permitted to make findings of law in determining the matter. Donovan AJ fell into error in that the case did not raise a question of law. The matter was remitted to a magistrate to make his or her own determination on all the issues of fact in view of the Court's  determination of the law
Image of page 65

Info iconThis preview has intentionally blurred sections. Sign up to view the full version.

View Full Document Right Arrow Icon
Image of page 66
This is the end of the preview. Sign up to access the rest of the document.

{[ snackBarMessage ]}

What students are saying

  • Left Quote Icon

    As a current student on this bumpy collegiate pathway, I stumbled upon Course Hero, where I can find study resources for nearly all my courses, get online help from tutors 24/7, and even share my old projects, papers, and lecture notes with other students.

    Student Picture

    Kiran Temple University Fox School of Business ‘17, Course Hero Intern

  • Left Quote Icon

    I cannot even describe how much Course Hero helped me this summer. It’s truly become something I can always rely on and help me. In the end, I was not only able to survive summer classes, but I was able to thrive thanks to Course Hero.

    Student Picture

    Dana University of Pennsylvania ‘17, Course Hero Intern

  • Left Quote Icon

    The ability to access any university’s resources through Course Hero proved invaluable in my case. I was behind on Tulane coursework and actually used UCLA’s materials to help me move forward and get everything together on time.

    Student Picture

    Jill Tulane University ‘16, Course Hero Intern