A Duty of Care
The potential claimants (plaintiffs) are Zoe and Ronaldo, and the potential defendant is the shopping centre (‘the Pantry’). The issue is whether the injury suffered by the plaintiffs is caused due to the negligence of the shopping centre? The issue of vicarious liability is raised on behalf of Jack against the shopping centre. The issue relating to occupiers liability in a negligence claim is raised against the shopping centre.
In Australia, the tortious actions of people and entities are governed by the common law and the Australian legislation which include acts such as Work Health and Safety Act 2011. In New South Wales, the Civil Liability Act 2002 (CLA) provides provisions regarding tort law. A tort is referred as a civil wrong which is different from a breach of contract under which aggrieved parties can file a civil suit for compensation. The party against whom the suit is filed, the wrongdoer, is the person who commits the tortious act or tort. Negligence is referred to the tort in which a person or entity failed to exercise a duty of care which is expected amongst specified situations. In the common law, three prerequisites are given for an action in negligence which includes a duty of care, breach, and damage.
The fact that a person has suffered an injury does not mean that another party will be held liable under a suit for negligence. In Donoghue v Stevenson case, the principle of duty of care was established by the court. In this case, a personal injury was suffered by the claimant because the remains of a snail were slipped in a bottle of ginger-beer which was sold by the defendant. A duty of care is expected to be fulfilled by a reasonable person while acting in the position of the defendant. The court provided “neighbour” test to establish whether a duty exists or not. As per this test, three key elements are evaluated by the court to determine the duty of a person which includes the risk of damage, relationship between the parties and nature of injury. Occupiers of a property or premises owe a duty to visitor, tenants, and trespassers since they control the property to ensure that these parties did not get injured.
In Hackshaw v Shaw case, this duty was recognised by the court. In this case, Shaw fired warning shots at Hackshaw and Cox who were trespassing on Shaw’s farm and stealing petrol. Hackshaw was hit, and he filed a suit for negligence to seek compensation for his injuries. The court accepted the claim by providing that as the occupier of the property, Shaw owed a duty of care and such duty was violated due to negligent shooting at the vehicle. In Australian Safeway Stores Pty Ltd v Zaluzna case, the court provided that the supermarket owed a duty towards the customer who suffered an injury due to slipping on the vinyl tiled floor based on which it is liable to pay damages. Section 5B provides general principles which are necessary to be present in order to hold a person liable for negligence. Subsection 1 provides that a person is not considered as liable under a suit for negligence unless (a) the risk suffered by the aggrieved party was foreseeable, (b) the threat was not insignificant and (c) a reasonable person would have taken precautions in specified circumstances.
B Breach of Duty
A party breaches the duty of care in case “reasonable care is not maintained under all circumstances” which include those actions which an ordinary and prudent person would do. Thus, a person can be held liable for negligence for doing something which a reasonable person would not do due to which the standard of care is violated. In Paris v Stepney Borough Council case, the court provided the test to determine the breach of duty which provides what precautions would a reasonable person take in the situation. In this case, a one-eyed employee became completely blind at work and sued the employer for negligence to receive compensation. The court provided that a duty of care is owed by the employer who knew that the employee was suffering from a disability which increased the risk of harm. The duty was breached because as a reasonable person the employer did not take any actions to ensure the security of the employee such as providing goggles for safety, thus, the employee can claim for compensation.
Section 5B subsection 2 of CLA defines that the court considers various factors to determine whether the reasonable person would have taken precautions to assess if the party has breached the duty of care. These factors include (a) the probability of harm in case the party failed to maintain care, (b) likely seriousness of the harm, (c) the burden for avoiding the threat of harm, and (d) the social utility relating to the action of the person due to which the threat of harm occurs. In Waverley Council v Ferreira case, it was held that the element of social utility is not necessary to be considered based on the facts of the case. Section 5C of CLA provides other principles which apply in a suit for negligence. In the proceedings which are filed in the court for establishing the liability for negligence (a) the burden for ensuring that harm is not suffered by a party include the burden based on which the party is liable to take precautions to avoid the harm, and (b) the fact that harm can be avoided did not impose a liability on the party, and (c) the subsequent actions that would have avoided the harm did not give rise to liability or admission of liability relating to the risk.
The element of causation provides that the breach of duty of care and the damages suffered by a party must have a causal connection. In Cork v Kirby MacLean Ltd case, the court provided the “but for” test to determine this element. The test provides that the injury of the plaintiff had not occurred, but for the negligent actions of the defendant to maintain a standard, the damage was caused. Section 5D of CLA provides general principles regarding causation. Subsection 1 provides that in order to determine that the negligence resulted in causing harm, certain elements must be fulfilled which include (a) negligence was a necessary condition (factual causation) and (b) the injury must come within the liability of negligent party (scope of liability). Subsection 2 provides that in cases where negligence cannot be established as a necessary condition, then the court considers whether or not and why this responsibility should be imposed. Subsection 3 provides that the element of factual causation is established by determining that the party would have suffered the injury if the defendant would not have been negligent. Subsection 4 provides that the scope of liability is imposed by the court to consider whether or not and why the defendant should have the responsibility for the harm. Section 5E provides onus of proving the element of causation is always born by the plaintiff.
C Causation and Scope of Liability
After establishing all the elements of negligence mentioned above, it is likely that the parties cannot receive compensation if the damages are not foreseeable or element of remoteness is not present. In Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd case, the court provided that damages which are not foreseeable are not recoverable under a suit for negligence.
The doctrine of vicarious (secondary) liability provides that a party will be held liable for the wrongful actions of another party because of the legal relationship between them, even if the first party is not personally at fault. This legal relationship exists between employer and employee relationship. In Hollis v Vabu Pty Ltd case, the court provided that the relationship between parties is evaluated to determine whether an employer/employee relationship exists between the parties or not. In this case, the court provided that the bike couriers were not contractors, instead, they were employees of the courier company as per the relationship between them.
There are two double doors in the shopping centre which are fire exit doors, and Marceau opened both doors by using a wooden wedge to increase the number of customers. Jack took no action even after noticing the same. Zoe sent an email regarding this to Westlands, but no action was taken. Due to the fire, Zoe and Ronald suffered substantial loss. The shopping centre owes a duty as per the element of occupier liability discussed in Hackshaw v Shaw and Australian Safeway Stores Pty Ltd v Zaluzna case in which it was held that the occupier owes a duty to the visitors who enter the premises. Similarly, provisions of section 5B (1) applies in this situation as well because risks were foreseeable (a), risk was significant (b), and reasonable person had taken appropriate precaution to avoid damages (c). This duty was breached because the shopping centre did not maintain a standard of care by not ensuring that the fire exit doors remain closed. Westlands failed to take any action when Zoe sent an email regarding this matter. A reasonable person would have taken precautions to ensure that the fire gates remain closed for the safety of visitor of the shopping centre (Paris v Stepney Borough Council). The provisions given under section 5B (2) are violated because (a) the probability of risk was present along with (b) seriousness of the damage, and (c) the burden was on the shopping centre to avoid the harm. As discussed in Waverley Council v Ferreira case, the element of social utility did not apply in this case because there was no issue of social utility involved. Thus, the duty is violated by the shopping centre.
Zoe is more likely to fail while claiming compensation from Westlands because of the lack of element of causation. As per the ‘but for’ test, the injury of Zoe had occurred even if the duty was not breached by Westlands (Cork v Kirby MacLean Ltd). The element given under section 5D which include factual causation and scope of liability is not present because the injury of Zoe is not caused due to the negligence of the shopping centre. On the other hand, the shopping centre owed a duty towards Ronaldo and the injury suffered by him is caused due to the negligence of the shopping centre to ensure that the fire doors remain closed. Both factual causation and scope of liability are present in case of Ronaldo because (a) the negligence of Westlands was a necessary condition in the injury suffered by him and (b) it was within the scope of liability of the shopping centre. In case of Ronaldo, the damages were not too remote since the risk of spreading of fire was foreseeable if the fire doors remain close (Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd). Although Jack has violated his duty, however, he had an employer/employee relationship with the shopping centre based on which Westlands can be held liable under the doctrine of vicarious liability (Hollis v Vabu Pty Ltd). Therefore, Ronaldo is more likely to succeed in his claim to receive compensation from the shopping centre for the injury suffered by him due to its negligence.
Conclusion
In conclusion, Zoe is likely to fail in holding Westlands liable for the burnt suffered by him because the element of causation is not present; however, Ronaldo is likely to succeed since all elements of negligence are present.
References
A Articles/Books/Journals
Barker, Kit et al, The law of torts in Australia (Oxford University Press, 2012).
Charman, Mary, Bobby Banstone and Liz Sherratt, As Law (Willan, 2012).
Deakin, Simon, Angus Johnston and Basil Markesinis, Markesinis and Deakin’s Tort Law (Oxford University Press, 2012).
Goudkamp, James, Tort law defences (Bloomsbury Publishing, 2013).
Greene, Brendan, Course Notes: Tort Law (Routledge, 2013).
Hayward, Benjamin, ‘Tort, cinema and violent crime: An Australian perspective’, (2013) 38(4) Alternative Law Journal 255-259.
Ivessa, Rob ‘Employer liability-incrementally: High court considers employees’ actions in tort’, (2016) 36(11) Proctor 16.
Kotecha, Birju, Q&A Torts (Routledge, 2014).
Stickley, Amanda, Australian torts law (LexisNexis Butterworths, 2016).
Twigg-Flesner, Christian, Consumer product guarantees (Routledge, 2017).
Villa, Dominic, ‘Breach of duty’, (2013) (115) Precedent (Sydney, NSW) 10.
B Cases
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 61 ALJ 245
Cork v Kirby MacLean Ltd (1952) 2 All ER 402
Donoghue v Stevenson (1932) AC 562
Hackshaw v Shaw (1984) HCA 84
Hollis v Vabu Pty Ltd (2001) 207 CLR 21
Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (1961) UKPC 1
Paris v Stepney Borough Council (1950) UKHL 3
Waverley Council v Ferreira (2005) NSWCA 418
Civil Liability Act 2002 (NSW)
Work Health and Safety Act 2011
Austlii, Civil Liability Act 2002 (2018) < https://www5.austlii.edu.au/au/legis/nsw/consol_act/cla2002161/>.
Legislation, Civil Liability Act 2001 No 22 (2018) < https://legislation.nsw.gov.au/#/view/act/2002/22>.
Jade, Civil Liability Act 2002 (NSW) (2018) < https://jade.io/j/?a=outline&id=275199>.
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