3 rd party in care and control of defendant but duty

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- 3 rd party in care and control of defendant – but duty owed to the plaintiff. Robertson v Swincer FACTS: Kid ran across road and got injured on his way back. Kid sued driver. The driver gave defence that parent should have been taking care. RULE: No DOC owed by parent to child. Only when a positive act puts child in danger (e.g. taking to the beach). Difficulty in assessing standard of care. Every parent will inevitably breech. King: Parents would use it against each other, children against parent. Bad for family life. Parliament can change it. Howard v Jarvis FACTS: There is a clear duty to protect prisoners from themselves. What about protecting them from each other?? Smith v Leurs (HC 1945) FACTS: Fight between schoolboys. Leurs hit boy in eye with stone using slingshot. Victim lost an eye and sued the boy (liable in battery). Sued parents for negligence – they had a duty to the injured boy to take affirmative action to control their son. HELD: DOC may be owed by parents to an injured 3 rd party to take control of their own child. Even if duty to their own child is limited. Must be reasonably foreseeable that if the parent doesn’t assert control over the child, the plaintiff is likely to be injured. Special relationship: care and control . Dixon: must take reasonable care to exercise their control over young children to avoid conduct by the child that will hurt someone or their property. Latham: parents not normally liable for torts of their children but parents with control of children are responsible if they are negligent in controlling them. Parents not liable = DOC but no breach = they warned child not to aim it at anybody.
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- ‘Negligence is doing something different to what a reasonable person would do’ ( Blythe’s Case ). - No binding precedents for standard of care – decide each case on its facts ( Quall Cast v Haynes ). DEFINE REASONABLE PERSON Section 48(1)(c): A person is not negligent in failing to take precautions against a risk of harm unless – in the circumstances, a reasonable person in the person’s position would have taken those precautions. 23 Carmathenshire County Council v Lewis (1955) FACTS: Council ran pre-school on busy highway. One teacher supervised all of the children but a kid got out and went on to highway. Driver swerved to avoid hitting the child and killed himself. Widow sued council and teacher. Teacher was not negligent. HELD: Council owed DOC to people going past pre-school. They should have put child proof gate. Duty is still owed to a 3 rd party even if person causing the injury is blameless (child in this case). Kerr v Allen (1955 – Shows expansion of principle) FACTS: Plaintiff was a land lord. D was a neighbour. P rented house out to man and his child. D agreed to babysit the child with her own 2 children (2 x 3yrold and a 5 yr old). The kids left to go next door to the plaintiff’s house and set fire to it.
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