Mckinnon v burtatowski 1969 vr 899 cb 498 facts d

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McKinnon v Burtatowski [1969] VR 899 (CB 498) Facts: D collided with a horse at night on a busy road in circumstances in which the collision itself could not be attributed to his negligence. The dead horse became a dangerous obstruction on the road. There was no duty for other motorists to stop and move the horse but was there a duty on D? Held: * Here Pape J preferred to leave the question open, but his analysis was subsequently interpreted and held to support the existence of a duty reasonable care to remove a hazard or give warning of its presence where the motorist was connected its creation (Ticehusrt v Skeen 1986 NSW SC)
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(b) Defendant has Control of the Situation Goldman v Hargrave [1967] 1 AC 645 (CB 500) Facts: D was a farmer who owned a considerable number of land. Tree on D’s land struck by lightening and caught on fire. Realising tree was on fire D goes to location, cuts down tree and clears area around tree in which it appears fire has burnt itself out. However several days later fire rekindled and at that stage D not on hand to do anything, fire spread causing damage to next door, being P. The trial judge found that had D taken care initially would not have rekindled. D argues should not be treated harshly than someone who had not tried to put fire out at all. Held: The existence of a duty must be based on (i) knowledge of the hazard, ability to forsee the consequences of not checking or removing it, and the ability to abate it. In circumstances where it is not so easy to determine the standard ought to be to require the occupier what it is reasonable to expect from him in the circumstances. PC expresses as duties of a landowner to their land. Could it be expressed further to any situations in which the above three are satisfied? This is not clear, but it is at least arguable that it does. (But remember must also show control of the situation- for example a person drowning may satisfy the above 3, but they may not have control over the situation). (c) Reasonable Reliance , Dependency & Assumption of Responsibility Wrongs Act 1958 (Vic) ss 79, 82-83 79. Definitions In this Part- damages includes any form of monetary compensation; exercise in relation to a function includes perform a duty; function includes a power, authority or duty; negligence means failure to exercise reasonable care; public authority means- (a) the Crown; (b) a public service body within the meaning of the Public Administration Act 2004 ; (c) a body, whether corporate or unincorporate, that is established by or under an Act for a public purpose; (d) a Council within the meaning of the Local Government Act 1989 ; (e) a body established or appointed for a public purpose by the Governor in Council or by a Minister, otherwise than under an Act; (f) a person holding an office or position established by or under an Act; (g) a person holding an office or position to which he or she was appointed by the Governor in Council or a Minister otherwise than under an Act; (h) any other person or body prescribed (or of a class prescribed) as an authority to which this Part applies (in respect of all or specified functions); (i) any person or body in respect of the exercise of a public or otherfunction of a class prescribed for the purpose of this Part.
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