Sample Assignment (Karatjas) PDF

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I: CASE ANALYSIS A.

Material Facts

Deakin University (the Respondent) was the occupier of a university campus. The Respondent engaged an independent contractor to run the campus cafeteria. Mrs Karatjas (the Appellant) was an employee of this contractor, whose position required that she frequently leave the cafeteria alone and after dark. 1 The Respondent mandated which car-park the Appellant could use. 2 At the relevant time, due to barricades erected by the Respondent that blocked the Appellant’s habitual means of passage, 3 the Appellant’s only means of transit from the cafeteria to the car-park was a narrow, 4 poorly lit path bordered by overgrown bushes. 5 The Respondent was aware of the poor lighting,6 and of a man reportedly ‘loitering in the bushes’.7 While walking down this path to the car-park after a shift, the Appellant was attacked and suffered enduring personal injuries.8

B.

Litigation History

At first instance, this case was heard by Cohen J in the County Court of Victoria,9 who ruled in favour of the Respondent. Specifically, Cohen J held that the Respondent’s provision of limited security services did not invoke an exception to the general rule, established in Modbury Triangle Shopping Centre Pty Ltd v Anzil (‘Modbury’), 10 that an occupier’s duty of care does not extend to taking measures to safeguard entrants from the criminal conduct of third parties. 11 This decision was appealed to the Supreme Court of Victoria (Court of Appeal), where it was heard by Nettle JA, Hansen JA, and Kyrou AJA.12

1

Karatjas v Deakin University [2012] VSCA 53 (28 March 2012) [7] (‘Karatjas’). Ibid [8]. 3 Ibid [8]-[9]. 4 Ibid [9]. 5 Ibid [13]. 6 Ibid [4], [11]. 7 Ibid [12]. 8 Ibid [13]-[14]. 9 Karatjas v Deakin University (Unreported, County Court of Victoria, Judge Cohen, 10 February 20 11). 10 (2000) 205 CLR 254, 268-9 [36]. 11 Karatjas [2012] VSCA 53 (28 March 2012) [21]. 12 Ibid. 2

C.

Legal Issues on Appeal

1. Primary Issue Whether the scope of the Respondent’s duty of care to the Appellant extended to taking reasonable measures to safeguard the Appellant from the criminal conduct of third parties as she moved from the cafeteria to the prescribed car-park? (a). Sub Issue Whether there was a sufficiently ‘special relationship’ between the Respondent and the Appellant so as to give rise to an exception to the general rule established in Modbury?13

D.

Conclusion and Orders

Nettle JA, on behalf of the court, held that a sufficiently ‘special relationship’ existed between the parties to justify an exception to the general rule enunciated in Modbury.14 Thus, the scope of the Respondent’s duty extended to taking reasonable measures to secure the ‘personal safety’ of the Appellant from the criminal conduct of third parties as she travelled from the cafeteria to the car-park.15 The case was returned to the County Court for retrial.16

E.

Reasoning

Nettle JA’s conclusions ultimately turned upon one fundamental consideration: whether, in the circumstances, it was reasonable for the Respondent to contemplate the potential for the Appellant to be harmed by the criminal conduct of third parties while moving from the cafeteria to the car-park. 17 This query was resolved with reference to: foreseeability, proximity, and ‘fairness, policy, practicality, proportion, expense and justice’.18 In reaching this conclusion, his Honour adopted the following process of reasoning.

13

Ibid [46]. (2000) 205 CLR 254, 268-9 [36]; Karatjas [2012] VSCA 53 (28 March 2012) [46 ]. 15 Karatjas [2012] VSCA 53 (28 March 2012) [60]. 16 Ibid [61]. 17 Karatjas [2012] VSCA 53 (28 March 2012) [36]. 18 Swain v Waverley Municipal Council (2005) 220 CLR 517, 548 [79] (McHugh J), quoted in Karatjas [2012] VSCA 53 (28 March 2012) [36]. 14

Acknowledging the general rule enunciated in Modbury, 19 Nettle JA accepted that the Respondent’s status as occupier of the campus was an insufficient basis for requiring the university to contemplate a risk of criminal harm to the Appellant.20 However, Nettle JA then considered whether there existed a unique relationship between the parties derivative of the employer-employee affiliation expressly recognised in Modbury as capable of generating such a duty.21 He observed that employers owe a duty to prescribe ‘a safe system of work’ for employees,22 which requires employers, inter alia, to safeguard employees against the risk of criminal harm in the course of their employment, 23 and during passage between an allocated car-park and their place of work. 24 The primary question was the applicability of such obligations beyond the traditional employer-employee framework.

In Stevens v Brodribb Sawmilling Company Pty Ltd (‘Brodribb’),25 the court held that where a principal engages an independent contractor, and retains control over some aspect of the task to be undertaken, the principal may be obligated ‘to prescribe a safe system of work’ for the contractor in relation to the aspect of the work the principal controls. 26 English v Rogers (‘English’) recognised a like duty owed by a principal to the employees of an independent contractor, particularly where the ‘general relationship’ between the parties broadly reflects an employer-employee bond.27 According to Nettle JA, the principal’s control over the other party was decisive in both cases;28 control supports the foreseeability of the risk, implies a proximate relationship, and satisfies considerations of fairness, practicality and the like. 29 Thus, Nettle JA’s discussion turned to whether the Respondent exercised sufficient control over the Appellant to sustain the employer-employee analogy and support a comparable duty of care.

19

(2000) 205 CLR 254. Karatjas [2012] VSCA 53 (28 March 2012) [22]. 21 (2000) 205 CLR 254, 265 [26]. 22 Modbury (2000) 205 CLR 254, 292 [110]. 23 See, eg, Chomentowski v Red Garter Restaurant Pty Ltd (1970) 92 WN (NSW) 1070, 1084 (Mason JA), quoted in Karatjas [2012] VSCA 53 (28 March 2012) [25]; Fraser v State Transport Authority (1985) 39 SASR 57, 68, quoted in Karatjas [2012] VSCA 53 (28 March 2012) [28]. 24 Public Transport Corporation v Sartori [1997] 1 VR 168, 173, quoted in Karatjas [2012] VSCA 53 (28 March 2012) [29]. 25 (1986) 160 CR 16. 26 Ibid 31. 27 [2005] NSWAC 327 [84]. 28 Karatjas [2012] VSCA 53 (28 March 2012) [36]-[37]. 29 Ibid [37]. 20

Although noting the factual distinctions between English and the present case,30 Nettle JA held that they were comparable in relation to the principal’s creation or exacerbation of the risk, the principal’s knowledge of the risk, and the principal’s awareness of the vulnerability of the victim. 31 Moreover, Nettle JA concluded that the Respondent exercised sufficient control over the Appellant’s means of passage to and from the cafeteria to give rise to a duty of care with respect to that aspect of the Appellant’s work, giving rise to a ‘Brodribb-type’ duty.32 Nettle JA then referred to the requirements of foreseeability, proximity, and ‘fairness, policy, practicality, proportion, expense and justice’.33 He held that the first condition was satisfied by the very nature of contemporary society, 34 and the second established by virtue of the Respondent’s knowledge of the presence of the loiterer, and awareness of the Appellant’s concern for her safety.

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The Respondent’s statutory obligation to take

‘reasonably practicable’ measures to provide the Appellant with safe passage to and from her workplace was held to endorse the fairness, 36 justice, and practicality of imposing a duty of care.

Fundamentally, Nettle JA concluded that the Respondent’s capacity to control the Appellant and the system according to which she travelled to and from the cafeteria to the car-park established a sufficiently ‘special relationship’ between the parties to satisfy the standards of foreseeability,

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proximity, and ‘fairness, policy, practicality, proportion, expense and

justice’.38 Thus, the question of whether it was reasonable for the Respondent ‘to have in contemplation’ the risk of harm to the Appellant posed by criminal third parties was answered affirmatively.39

30

[2005] NSWAC 327. Karatjas [2012] VSCA 53 (28 March 2012) [40]-[44]. 32 Ibid [47]. 33 Swain v Waverley Municipal Council (2005) 220 CLR 517, 548 [79 (McHugh J), quoted in Karatjas [2012] VSCA 53 (28 March 2012) [48-50]. 34 Fraser v State Transport Authority (1985) 39 SASR 57, 68, cited in Karatjas [2012] VSCA 53 (28 March 2012) [48]. 35 Karatjas [2012] VSCA 53 (28 March 2012) [49]. 36 Ibid [50]. 37 Karatjas [2012] VSCA 53 (28 March 2012) [46]. 38 Swain v Waverley Municipal Council (2005) 220 CLR 517, 548 [79] (McHugh J), quoted in Karatjas [2012] VSCA 53 (28 March 2012) [37]. 39 Karatjas [2012] VSCA 53 (28 March 2012) [36]. 31

After reaching this conclusion, Nettle JA expressly distinguished the case from Modbury,40 thereby explicitly justifying his reasons for diverging from the findings of the trial judge.41 Principally, Nettle JA differentiated the basis of the claims in each instance: Modbury dealt with an occupier’s obligation to provide adequate lighting,42 not a principal’s duty to provide a safe system of work.43 Further, unlike the occupier in Modbury, 44 the Respondent had a specific interest in the time the Appellant accessed the car-park, and was aware of her particular vulnerability.45 Additionally, the burden on the Respondent of taking precautions was uncontestably minimal.46 Finally, Nettle JA noted that his position was supported by a statutory obligation incumbent upon the Respondent that was absent in the Modbury case.47

F.

Legal Rule Clarified

Nettle JA’s reasoning effectively clarified a key legal rule in relation to the existence of a duty of care to guard against the criminal conduct of third parties; namely: that control is the decisive factor when determining whether a sufficiently ‘special relationship’ exists between parties to give rise to such a duty of care. 48 This determination consolidated the various references to control made throughout the cases that proved influential upon Nettle JA’s decision.49

II.

CASE COMPARISON

Although Nettle JA distinguished the present case from Modbury on the facts,50 the decisions reached in both instances are largely consistent. Firstly, the decision in Modbury was in part based upon the unreasonableness of imposing a duty of care on a party to guard another against a risk that party had no capacity control. 51 Specifically, Hayne J noted the

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(2000) 205 CLR 254. Karatjas [2012] VSCA 53 (28 March 2012) [21]. 42 (2000) 205 CLR 254. 43 Karatjas [2012] VSCA 53 (28 March 2012) [53]. 44 (2000) 205 CLR 254. 45 Karatjas [2012] VSCA 53 (28 March 2012) [54]. 46 Ibid [55]. 47 Ibid [56]. 48 Modbury (2000) 205 CLR 254, 267 [29]. 49 See, eg, Brodribb (1986) 160 CR 16 [35]; English [2005] NSWAC 327 [86]; Modbury (2000) 205 CLR 254, 264 [21], 266 [29], 270 [42], 292 [110]. 50 (2000) 205 CLR 254. 51 (2000) 205 CLR 254, 293 [114]. 41

perverseness of requiring a single occupier to guard against conduct that society, with its collective resources and best efforts, had proved unable to regulate.52 Nettle JA expressly acknowledged this concern,53 and was careful to explain his decision in terms of a principal’s capacity and authority to control the employee of an independent contractor, as distinct from an obligation to control third party conduct.54

Secondly, in Modbury, 55 Gleeson CJ’s conclusion that no duty of care was owed was influenced by the legal principle ‘that the common law does not ordinarily impose liability for omissions’.56 Nettle JA’s decision was equally consistent with this position, given his conclusion that the Respondent did not merely fail to prevent, but actively contributed to, the harm suffered by the Appellant: first, by mandating where the Appellant should park; and second, by erecting barricades that blocked the only safe means of passage to this location.57

Thirdly, Gaudron J noted in Modbury that a duty of care to guard against third party conduct would generally only arise in circumstances incorporating ‘special vulnerability, on the one hand, and on the other, special knowledge’.

58

Nettle JA’s decision respected these

parameters, by specifically noting the satisfaction of these criteria in the present case. The Appellant was held to be ‘particularly vulnerable’ due to the Respondent’s active participation in blocking the Appellant’s only safe passage to the car-park, 59 failure to offer the Appellant available security services, and knowledge of a loiterer upon the premises.60 The Respondent was deemed to possess particular knowledge due to its awareness of the cafeteria’s operating hours, the Appellant’s roster, and the poor quality of lighting on the premises.61

52

Modbury (2000) 205 CLR 254, 292-3 [113]. Karatjas [2012] VSCA 53 (28 March 2012) [51]. 54 Ibid [59]. 55 (2000) 205 CLR 254. 56 Modbury (2000) 205 CLR 254, 265 [26]. 57 Karatjas [2012] VSCA 53 (28 March 2012) [42]. 58 (2000) 205 CLR 254, 270 [43]. 59 Karatjas [2012] VSCA 53 (28 March 2012) [44]. 60 Ibid [44]. 61 Karatjas [2012] VSCA 53 (28 March 2012) [43]. 53

Finally, the decision in Modbury is firmly grounded in the view that reasonable foreseeability is an insufficient basis for establishing a duty of care.62 Similarly, Nettle JA’s decision is consistent with this position, resting as it does not on foreseeability alone, but also proximity, and notions of ‘fairness, policy, practicality, proportion, expense and justice’. 63 Thus, the decisions in each case are aligned.

62

Modbury (2000) 205 CLR 254, 268 [35]. Swain v Waverley Municipal Council (2005) 220 CLR 517, 548 [79 (McHugh J), quoted in Karatjas [2012] VSCA 53 (28 March 2012) [37]. 63...