Earlier this year we produced an article which discussed intentional torts, such as assault and battery, and how the Civil Liability Act NSW applies to these actions. The article can be found here.
The problem with intentional torts is that the assaulter is very unlikely to have insurance to cover their actions and is highly likely to have a limited worth making litigation a fruitless exercise.
In such circumstances it is more effective to litigate against the occupier or employers and area operators who are more likely some form of insurance. These are called third parties.
The authority on liability on third party occupiers is found in the high court case of Modbury Triangle v Anzil . The Modbury Triangle Shopping centre was a moderate shopping centred surrounded by a car park.
The car park was surrounded by floodlights, which switched off at 10PM. The video store was the last business to close each evening. The manger of the store would leave after cleaning up at 10:30PM, after the lights had turned off. Within his 10 meter walk to the car, the manager was attacked by three assailants.
The manger sued the shopping centre as they had control over the area especially the lighting. The high court noted that in these cases the general principal is that the occupier has a duty to take reasonable care to avoid doing, what might cause harm to another person, and not a duty to prevent harm, let alone harm caused by another person.
This set a very high threshold to overcome to prove a breach of liability in third party occupier cases. Ultimately the mangers case failed, due to too many outside factors, including outsourced security which mean that while the centre controlled the timing of the lights this did not mean it had any obligation in relation to security.
Karatjas v Deakin University (2012) like Modbury Triangle the Plaintiff was an employee of a cafe within the University. There was some distinct differences between the two cases; the University required the cafe to be open until 7:30pm. It required the employees to park in a specific car spot. The University provided security escorts to staff and students but this was not provided to the employees of the café and ultimately the café employee who had been assaulted was successful in her action.
A final difference was that there had been an event some weeks before, for which barricades had been put up, these had not been removed. This meant employees walking to the car park had to take a long route which took them through an overgrown ally. It was while walking through this ally that the Plaintiff was attacked and suffer injuries.
The Court held that the control which the University held over the business, in particular how the staff were directed to go to the car park was enough to create a duty of care which it owed to their employees also.
The take away messages:-
- As a general rule no duty of care exists to prevent harm to a person who is injured by a third party (Modbury Triangle).
- There needs to exist a special relationship (eg employee/employer) or a special vulnerability that requires the Defendant to provide security.
- Breach of duty is always to be considered have regard to the likelihood of the harm occurring and the burden of taking precautions to prevent the risk (such as in Deakin University)