Established Duties of Care PDF

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Established Duties of Care ...

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Established Duties of Care In Sullivan v Moody, the members of the High Court held in a joint judgement: 

“A defendant will only be liable, in negligence, for the failure to take reasonable care to prevent a certain kind of foreseeable harm to plaintiff, in circumstances where the law imposes a duty to take such care.”

A duty of care is ‘a particular and defined legal obligation arising out of a relationship between an ascertained (or a class of defendants) and an ascertained plaintiff (for class of plaintiffs)’.  Roads and Traffic Authority of New South Wales v Dederer Duty of care may be classified in two categories: 1. Established duty of care determined by reference to the precedents established by similar cases [legally recognised relationships that give rise to a duty of care] Traits of Established Duties of Care: -

Degree of Control

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Vulnerability

2. Novel duty of care the facts do not fit within any of the established duties of care. Scope of the duty of care 

The recognition of duty of care does not impose in all-encompassing duty.

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Duty of care is founded upon the neighbour principle [to take reasonable care to take reasonable care so as not to expose the plaintiff to foreseeable risks of injury]

Gummow J in Roads and Traffic Authority of New South Wales v Dederer  “duties of care are not owed in the abstract. Rather they are obligations of a particular scope, and that scope may be more or less expansive depending on the relationship in question. Secondly, whatever their scope, all duties of care are to be discharged by the exercise of

reasonable care. They do not impose a more stringent or onerous burden.” The scope of an established duty of care considered in Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 The appellant owned a shopping centre at which the respondent was an employee of one of the lessees at the centre. The respondent was criminally assaulted by three unknown assailants in the centre’s car park one night when leaving work. The lights for the car park were not on at the time. The respondent alleged that as occupier the appellant owed them a duty of care and had breached the duty by failing to leave lights on. It was not denied that as the occupier of the shopping centre, the appellant owed the respondent a duty of care. Gleeson CJ: “That an occupier of land owes a duty of care to a person lawfully upon the land is not in doubt. It is clear that the appellant owed the first respondent a duty in relation to the physical state and condition of the car park. The point of debate concerns whether the appellant owed a duty of a kind relevant to the harm which befell the first respondent. That was variously described in argument as a question concerning the nature, or scope or measure of the duty. The nature of the harm suffered was physical injury inflicted by a third party over whose actions the appellant had no control. Thus, any relevant duty must have been a duty related to the security of the first respondent. It must have been a duty, as occupier of land, to take reasonable care to protect people in the position of the first respondent from conduct, including criminal conduct, of third parties.” Issue: whether at common law, a duty of care may be established and extend, in its scope to the avoidance of foreseeable risks of injury arising out of the criminal act of a third party. Majority held: the scope of the duty of care of the appellant did not extend to taking reasonable care to prevent lawful entrants to the land by criminal third parties.

The scope of content of the duty must be determined before any inquiry into breach can be made as to otherwise assumptions are made about the content of the duty which may fail to take fundamental aspects of the relationship between the parties into account. Established duties of care 

Occupiers of premises and entrants

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Employers and employees

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Road users and other road users

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Professionals and clients; and

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Manufacturers of goods and consumers

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Prison authorities

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Schools and students

Occupiers of premises The duty of care of an occupier was dependent upon the class of entrant. Previous class of entrants: 

Contractual entrants: the tortious duty required that the premises were as safe for the contemplated purpose as reasonable care and skill could make them

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Invitees: the duty owed to invitees was that the occupier shall on his part use reasonable care to prevent damage from unusual danger which he knows or ought to know. Whether something amounted to an unusual danger depended upon the nature of the danger, the place where it was found and the activity being undertaken by the particular invitees.

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Entrants as of right: members of the public entering public premises or public officials entering private property under the authority of a statute were owed a duty of care equivalent to that of an invitee or licensee.

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Licensees: duty was only to warn of any unusual or concealed danger of which the occupier knew and which would not be obvious to a reasonably careful entrant.

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Trespassers: at first the duty was only in respect of injuries caused as a result if wilful default or reckless disregard. However, a duty of common

humanity replaced this under which the occupier was expected to act towards trespassers as would a humane person with the knowledge, ability and resources of the occupier. Australian Safeway Stores Pty Ltd v Zaluzna The D slipped into the P’s supermarket foyer where the floor had become wet due to customers entering the store on a rainy day. Held by Majority of the High Court: there was no justification for the continued recognition of the special duties of occupiers and all that was necessary was the necessary degree of proximity of relationship. Mason CJ, Wilson, Deane and Dawson JJ: all that is necessary is to determine whether in all the relevant circumstances….the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. There (must) be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member. An occupier: has a right of control over the premises and those who enter them. Scope of the duty An occupier must take reasonable care to avoid foreseeable risks of injury to an entrant. Beardmore v Franklins Management Services Pty Ltd [2003] 1 Qd R Plaintiff was injured at the defendant’s supermarket when a 5 year old boy in charge of a shopping trolley ran into her. Court of Appeal held that: the defendant as occupier owed a duty of care as the risk of injury was foreseeable. Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234 The appellant regularly delivered bread to the respondent’s store. The appellant was injured when she tried to move industrial bins that were blocking her access to the loading dock.

High Court held that: the scope of the duty of care owed by the respondent to the appellant extended to ensuring that the system for the delivery of goods to its premises did not expose her to an unreasonable risk of physical injury. The scope of the duty extended to the static condition of premises to which the deliveries were made but also the system of delivery itself. Cole v South Tweed Heads Rugby League Football Club Pty Ltd (2004) 217 CLR 469 High Court considered whether occupiers of licensed premises owe a duty of care to prevent intoxicated patrons from leaving the premises. -

Above and beyond that required by the relevant liquor licensing legislation.

Plaintiff argued that the defendant club owed her a duty to prevent her from leaving the club when its employees knew that she was intoxicated. Plaintiff sought damages from the club for the injuries she received as a pedestrian soon after she left the club premises. Held by a 4-2 majority in the High Court: either the defendant did not owe the plaintiff a duty of care in the terms argued or that, even if a duty of was owed, it had not been breached. Gleeson CJ: the appellant’s argument as to duty of care involve both an unacceptable burden upon ordinary social and commercial behaviour and an unacceptable shifting of responsibility for individual choice. [Policy reasoning.] CAL No 14 Pty Ltd (t/as Tandara Motor Inn) v Motor Accidents Insurance Board (2009) 239 CLR 390 Appellant claimed damages from the respondent, alleging that it had been negligent in allowing her husband to leave its licensed premises and drive his motorcycle when he was intoxicated. The Tasmanian Court of Appeal: found that the respondent owed the deceased husband a duty to take reasonable care to prevent him from riding the motorcycle when he was so intoxicated that he could not ride it safely.

On appeal to the High Court: even more narrow duty was argued: that the duty of the respondent was to contact the deceased’s wife in order for her to collect him. High Court: criticised Tasmanian Court of Appeal’s formulation of the duty of care. Best to avoid arguments for duty of care based upon the specific facts of the case. -

No doubt that the respondent owed the husband various duties to take reasonable care: a duty to take reasonable care to ensure that the premises were physically safe etc etc

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There was no general duty of care at common law to protect customers from the consequences of the alcohol they choose to consume. [To hold that there was a duty of care would create difficulties relating to customer autonomy and coherence with legal norms]

Warning signs Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330 Respondent dived from a bridge into shallow water, despite the pictogram depicting no diving and struck his head. Gummow J: an occupier’s duty is to take reasonable care and to impose a duty to prevent foreseeable harm to others would be outside the scope of the duty. Hoyts Pty Ltd v Burns (2003) 201 ALR 470 The plaintiff was injured in the defendant’s cinema when she momentarily left her seat to attend to a child and the seat automatically retracted. This caused her to fall when she attempted to return to her seat. Plaintiff argued that the scope of the duty owed by the defendant to patrons included the provision of signs warning of the retracting seats. High Court: found against the plaintiff. -

The presence of a sign would not have prevented her injury.

Kirby J: considered the following factors as being relevant when determining whether the duty of care owed by the occupier extends to the provision of a warning sign. 1. Whether the occupier has an economic interest in the entry of the plaintiff 2. Whether because of previous incidents, the occupier would be expected to know of any particular risks against which warnings should be given. 3. Whether there is any hidden feature of the place or activity that might not be plain to an ordinary entrant but which should be known/reasonably discoverable by the occupier 4. Whether the consequences would be likely to be minor or significant for the person affected 5. Whether the imposition of a requirement to give a notice could be confined to a particular place or places or would have large implications, costs and other consequences 6. Whether the nature of the activity in question was such as to render the presence of a sign irrelevant to the actual prevention of injury Landlords General rule: outside of the contractual relationship, a landlord owed no duty to a lessee or others on the premises unless the landlord: 

Conducted active operations or had undertaken repairs (AC Billings & Sons Ltd v Riden [1958] AC 240)

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Fraudulently concealed a defect (Travers v Gloucester Corporation)

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Was responsible for faulty design (Rimmer v Liverpool City Council [1985] QB 1)

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Premises were unfurnished when leased but where unfit for occupation and the injury resulted from their defective state (Charsley v Jones)

In the absence of one of these exceptions, the landlord owed no duty of care in tort. The relationship of landlord and tenant is considered under the duty of occupier and entrant due to the meaning of occupation

Northern Sandblasting Pty Ltd Harris The occupier’s duty of care is based on the power of control which an occupier has to consent to another’s entry and the power to safeguard the entrant against injury or loss from defects in the occupied premises. Landlord has powers corresponding to those of an occupier to consent to entry into occupation of the premises by the tenant/those, who to the knowledge of the landlord, are intended to occupy the premises under and for the purposes of the tenancy and the power to safeguard those persons against injury or loss from defects that are in the premises at the time when the tenant is let into possession. Jones v Bartlett The tenant’s son was injured when he put his knee through an internal glass door in the residential property. The glass in the door had conformed with the relevant safety standards at the time that the house was built but did not comply with the current higher safety standards applicable to new houses. High Court: considered that the decision in Northern Sandblasting v Harris expanded the duty of care to tenants at common law. Gleeson C, McHugh and Kirby JJ: the duty is to take reasonable care to avoid a foreseeable risk of injury to prospective tenants and their families. Gaudron J: the duty was to take reasonable care for the safety of the tenants and their families and this extended to putting and keeping the premises in a safe state of repair. Callinan J: sufficient that the premises were in a habitable condition at the commencement of the tenancy. Liability for the criminal conduct of third parties Adeals Palace Pty Ltd v Moubarak The respondent and a patron had been involved in a fight on the dance floor of the appellant’s premises. The patron left the premises and returned with a gun and shot the respondent.

The High Court: decided that the decision of Modbury was relevant in deciding whether an occupier owes a duty to prevent criminal conduct of a third person on the premises. However, the appellant was the occupier and business operator of the restaurant, bound by the provisions of the Liquor Act 1982 (NSW) which included regulation of conduct on the licensed premises. Held by the High Court: the appellant owed a duty of care to the respondents to take reasonable care to prevent injury to the patrons from the violent, quarrelsome or disorderly conduct of other persons. The duty is consistent with the duty imposed by statute upon the licensee and which was a duty enforceable by criminal processes. Club Italia v Ritchie The defendant club was hosting a debutante ball when violence erupted and a senior police constable who had been sent to the premises was savagely assaulted in the car park by some of the patrons. The constable sued the club. Held by Brooking, Charles and Chernov JJA: there was a duty of care owed by the club to the constable. Unlike in Modbury, where the criminals were in no sense under the control of the defendant and its negligence having lay in its failure to light the car park, the patrons here could not properly be described as not under the control of the club. It failed to control the patrons and this was the only sense in which he was not under its control. They were allowed to misbehave when they should have been kept under control by the club which had invited him on to its premises and allowed him to remain there for the purposes of its business. Employers The duty of care which an employer owes an employee operates concurrently with those duties owed to the employee under the contract of employment. An employment contract contains an express or implied terms requiring the employer to provide a safe workplace.

Scope of duty An employer owes a duty to its employees to take reasonable care to carry on its business in such a way as to not subject employees to unnecessary and foreseeable risks of injury. Duty owed is divided into three headings: 1. A proper selection of skilled person to manage and superintend the business 2. Provision and maintenance of proper plant and equipment 3. Provision of a safe system of work An employer’s duty only encompasses foreseeable risks. Road users A duty of care is owed by every user of the road to every other road user as well as to persons and property adjacent to the road. Persons in control of others At common law, the distinction between misfeasance and nonfeasance has meant that there is no duty to control another’s actions so as to prevent injury to a third party. Exception: where a person is in control of others; they may owe the persons themselves a duty of care to ensure that they come to no harm. Recognised duties of care due to control are imposed upon: -

School authorities

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Parents of young children

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Prison authorities.

School authorities and students: when a student is at school, the school is in control and acting in place of the parent or guardian Scope of duty The scope of duty of care is to exercise reasonable care and supervision to protect students from foreseeable risks of injury.

H v New South Wales The plaintiff was stabbed by a fellow student on the school grounds. As the teachers were aware of the conduct between the students prior to the stabbing the risk to the plaintiff was foreseeable and within the school’s duty of care. The duty of care is not just limited to when the student is on school premises or the set school hours. Geyer v Downes The school was liable to the plaintiff who was injured before school started. Stephen J: if the schoolmaster and student relationship existed then the duty of care would apply. Abraham bht Abraham v St Mark’s Orthodox Coptic College The school was held negligent for not providing an effective system of supervision from 7:45am when a significant number of students commenced arriving at the school until 830am when classes commenced. Jarvis v Scrase The bus driver was held liable for failing to warn a child who had just stepped off the bus, of an approaching motor vehicle. Child was killed and the parents successfully sued for the psychiatric injuries they suffered as a result. Parent and child Australian common law: generally does not recognise a duty of care owed by parents in regard of the quality of the supervision of their children. This immunity is based upon grounds of legal policy and community expectations and most parents would regard themselves as under a moral obligation to protect a child [King CJ in Robertson v Swincer] Scope of duty

If the situation gives rise to a duty of care, which may be due to the control the parent or guardian exercises over the child and the child’s vulnerability, the scope of that duty will be to exercise reasonable care not to expose the child to foreseeable harm. St Mark’s Orthodox Coptic College v Abraham The particular situation was that the father had left his nine year old son at school at 8am when he knew, or should have known that there was no effective system of supervision for children before the commencement of school at 830am. Parent and third party General rule is that the law does not impose a duty upon a person to control the acts of another to prevent loss or harm to a third party [Modbury] A parent, however, may owe a duty of care to a third party to control their children in such a manner as to prevent them causing injury to third persons or to their property. McHale v Watson A 12 year old boy threw a home-made metal dart which accidentally hit the nine year old plaintiff in the eye, causing her serious injury. The father sued both the boy and his parents on his daughter’s ...