LAWS1203 Chapter Notes - Chapter 2: William Gummow, Contributory Negligence, In Essence
4. Complex duty cases
The Salient Features 'test'
We study the cases for consideration of the factors that courts will take into account in deciding whether a duty
of care exists. Note the extensive overlap between these ideas:
(a) Vulnerability / reliance:
Agar v Hyde* 2.4.12C
• Facts: A rugby player attained a broken neck while playing rugby
• Decision: no liability; the defendant had limited control over the matches, if they did owe a duty of
care, this duty could potentially be owed to thousands of potential plaintiffs, and the plaintiffs
voluntarily played the game and knew of the inherent risks. No controlling relationship, and liability
would interfere with autonomy of game
• **
Crimmins v Stevedoring Industry 2.4.12C; compare Voli 2.4.3C
• Judgement: The incremental approach
• McHugh J: Favours the incremental approach - "ascertaining whether the case comes within a factual
category where duties of care have or have not been held to arise."
▪ If it is a new category of cases, we do an incremental test for relevant factors which have arisen in
previous cases concerning public authorities. The process is as follows:
1. Reasonable foreseeability - as usual, reasonable foreseeability is the cornerstone of a duty of
care.
2. Power/control - did the defendant, by virtue of the statute giving it powers, have the power to
protect the plaintiff? Also, did the defendant have a degree of control over the plaintiff?
▪ Control will also be satisfied if the defendant assumed responsibility for the plaintiff.
▪ The presence of control pretty much means a duty of care - "it can seldom be the
case that a person, who control or directs another person, does not that person a duty
to take reasonable care to avoid risks of harm from that direction or the effect of that
control[2]." and "usually the very fact of the direction or control will itself be
sufficient to found a duty[3]."
3. Vulnerability - was the plaintiff vulnerable, in the sense that he could not be reasonably
expected to protect himself?
▪ Exceptions:
▪ If the public authority has control (or assumes a responsibility) to help the
plaintiff, he is considered automatically vulnerable.
▪ If the public authority has a statutory obligation to protect (however, this is
rare, because if there was already a statutory obligation to protect, this
would immediately entail a duty of care and there would be no way of
denying the duty).
4. Knowledge - did the defendant know or ought to have known that its non-feasance will most
likely bring about harm to the plaintiff? Moreover, did the defendant have sole knowledge?
(as in, no one else knew of the risk except for the defendant)
5. Policy - is the alleged negligence a part of the defendant's exercising of 'core' policy areas or
'quasi-legislative' powers? If yes, no duty of care.
6. Statutory scheme - check the statutory scheme to see whether imposing a common law duty
would be inconsistent to the duties given to the public authority by the statute.(if yes, no duty
of care)
▪ As in, will there be a conflict of duties?
• In this case: The incremental process is answered as follows:
1. Yes. The risk of harm was reasonably foreseeable.
2. Yes. The defendant had tremendous power and control over the workers. This is the principle
reason here why there is :*definitely a duty of care.
3. Yes. Nature of the relationship made the Plaintiff very vulnerable and unable to protect
themselves. Moreover, the Plaintiff was already under the control of the defendant and
therefore is automatically vulnerable.
4. Yes. The defendant had knowledge of the possible harm
5. No. Although some of the powers were 'quasi-legislative' in nature and thus immune from a
duty of care, plenty of other powers which could have been used were clearly operational
matters.
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6. No. There is no inconsistency between imposing a duty of care and the statutory scheme in
this case. No policy reasons to deny a duty of care.
▪ Therefore, there is a duty of care.
Voli (comparison)
• ***
(b) Assumption of responsibility / reliance:
Modbury Triangle Shopping Centre*7.5.17C (compare Safeway Stores v Zaluzna 7.5.4C for an established
category)
• Facts: Modbury Triangle Shopping Centre Pty Ltd (‘Modbury’) owned the Modbury Triangle
Shopping Centre in Adelaide. Anzil was a manager of a video rental shop in the shopping centre. At
about 10.30pm on 18 July 1993, after closing the video shop, Anzil was walking to his car in the car
park of the shopping centre when he was attacked by 3 assailants. He sustained serious injuries. The
car park was not lit at the time of the incident as the car park lights were turned off at about 10pm.
Anzil sued Modbury for damages alleging negligence on the part of Modbury as the occupier of the
land. The trial judge found in Anzil’s favour on the basis that (1) Modbury owed a duty of care to
tenants and customers to take reasonable care for their safety; (2) Modbury breached the duty by not
keeping the car park lit at the time Anzil was leaving the video store; and (3) causation was established
because of the clear connection between the breach of duty of care in failing to keep the car park lit and
the attack. An appeal to the Full Court of the Supreme Court of South Australia was dismissed.
Modbury was granted special leave to appeal to the High Court on both the issue of whether a duty of
care existed and causation.
• Issue: Did Modbury owe a duty of care to those lawfully on its land to protect them against criminal
acts by third parties? Did Modbury’s action or inaction cause the injuries to Anzil?
• Decision: A majority of the High Court (Gleeson CJ, Gaudron, Hayne and Callinan JJ, with Kirby J
dissenting) allowed Modbury’s appeal on both issues, and decided that Modbury was not liable for
Anzil’s injuries.
• It held: As an occupier Modbury owed Anzil a duty of care, but the duty did not extend to taking
reasonable steps to prevent criminal conduct by third parties which would cause physical injury to
Anzil in circumstances where Modbury was unable to control the conduct of the assailants. Modbury’s
failure to leave the car park lit facilitated the crime, in a similar way to its provision of the car park and
Anzil’s decision to park there, but it was not the cause of Anzil’s injuries. The direct and immediate
cause of the injuries was the conduct of the 3 attackers who were acting independently of Modbury.
• Gleeson CJ at 418: The unpredictability of criminal behaviour is one of the reasons why, as a general
rule, and in the absence of some special relationship, the law does not impose a duty to prevent harm to
another from the criminal conduct of a third party, even if the risk of such harm is foreseeable.
• And at 419: The most that can be said of the present case is that the risk of harm of the kind suffered by
the first respondent was foreseeable in the sense that it was real and not far-fetched. The existence of
such a risk is not sufficient to impose upon an occupier of land a duty to take reasonable care to prevent
harm, to somebody lawfully upon the land, from the criminal behaviour of a third party who comes
onto the land. To impose such a burden upon occupiers of land, in the absence of contract or some
special relationship of the kind earlier mentioned, would be contrary to principle; a principle which is
based upon considerations of practicality and fairness.
• Significance: This decision is authority for the view that the duty of care owed by an occupier of land
to entrants to that land does not extend to taking steps to prevent criminal conduct by third parties
which would cause physical injury to a lawful entrant in circumstances where the occupier is unable to
control the conduct of the assailants.
Safeway Stores v Zaluzna 7.5.4C
• Facts: Plaintiff [Zaluzna, respondent] went into the Defendant's store [Australia Safeway, appellant]. It
was raining outside so the foyer was wet and the defender slipped and injured himself
• Judgement: Defendant alleged that Plaintiff comes within 'invitee' category and damage wasn't
unusual, therefore no duty. Courts rejected the traditional approach to occupiers' liability, and decided
that from now on the general duty of care formula under Donoghue v Stevenson should be applied to all
cases. Here we have a commercial relationship as well as reasonable foreseeability, therefore there is a
duty of care. Court argued that when you expect people to come into your shop and pay you money,
the least you can do is provide a safe environment.
• ***
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