Judgment
1BASTEN JA: I agree with the orders proposed by Sackville AJA in each of the four proceedings now before the Court. I also agree with his reasons in all respects, subject to the following comments which are limited to the question of whether the grandmother owed a legally enforceable duty of care to her six month old grandchild. In one sense it may be said that the conclusion as to this issue is immaterial in circumstances where the Court is satisfied (as it is) that there was no breach of that duty: see [134]ff below. On the other hand, it may seem illogical to conclude that there is no breach of a non-existent duty, and at least difficult to decide whether there is a breach if the existence, scope and content of the duty has not been determined.
2The claim for damages for personal injury brought by the child in the present case is governed by the Civil Liability Act 2002 (NSW). Part 1A, Div 2 of that Act is headed "Duty of care". It is commonly said that the primary provision in that division, s 5B, is concerned with breach of duty, rather than the existence, scope and content of the duty. However, that proposition is only partly true, for the reason that factors relevant to duty and breach, at least in their practical application, do not easily fit within watertight compartments. The section provides:
5B General principles
(1) A person is not negligent in failing to take precautions against a risk of harm unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a) the probability that the harm would occur if care were not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the risk of harm,
(d) the social utility of the activity that creates the risk of harm.
3The focus of the provision is upon the "risk of harm" and the "precautions" which might be taken against such a risk. The section requires that the risk be foreseeable, being the criterion long identified as essential for the existence of a duty: s 5B(1)(a); Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (Wagon Mound (No 1)) [1961] AC 388 at 397. Further, if the risk be insignificant, it may well be possible to conclude that no duty was owed to take any precaution. There is something curious about the proposition (assuming s 5B is directed to questions of breach) that there is a duty, but it does not extend to the taking of any precautions and is therefore not breached.
4Although s 5B refers to the social utility of the activity that creates the risk, as relevant to determining what precautions should have been taken, it does not identify the fact that there may be policy considerations which militate against the creation of a duty giving rise to liability in tort. The particular role played by considerations of public policy in defining the limits of tort law was discussed by Gaudron, McHugh and Gummow JJ in Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512 at [94] and again by McHugh and Gummow JJ in Cattanach v Melchior [2003] HCA 38; 215 CLR 1 at [55]-[65].
5In Caparo Industries Plc v Dickman [1990] 2 AC 605 at 617-618 Lord Bridge of Harwich stated, after reviewing earlier authorities:
"What emerges is that, in addition to the foreseeability of damages, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of 'proximity' or 'neighbourhood' and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other. But it is implicit in the passages referred to that the concepts of proximity and fairness embodied in these additional ingredients are not susceptible of any such precise definition as would be necessary to give them utility as practical tests, but amount in effect to little more than convenient labels to attach to the features of different specific situations which, on a detailed examination of all the circumstances, the law recognises pragmatically as giving rise to a duty of care of a given scope."
6This approach has been rejected by the High Court: Sullivan v Moody [2001] HCA 59; 207 CLR 562 at [49]. The language of "proximity" was said to give little practical guidance in determining whether a duty exists in cases "that are not analogous to cases in which a duty has been established": at [48]. Further, the invitation to consider what is "fair, just and reasonable" was said to be "capable of being misunderstood as an invitation to formulate policy rather than to search for principle": at [49]. There was also rejection of any appeal to "some intuitive sense of what is 'fair' or 'unfair'": at [53].
7It is not necessary for present purposes to explore the distinction between "policy" and "principle". It is helpful, however, to identify the kind of approach which has found favour with the Court in recent years.
8Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 involved a claim by a plaintiff who was criminally assaulted in a car park against the occupier of the car park. Accepting that the risk of harm was foreseeable in the sense that it was real and not far-fetched, but in rejecting the existence of a duty of care owed by the occupier, Gleeson CJ stated at [35]:
"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. The principle cannot be negated by listing all the particular facts of the case and applying to the sum of them the question-begging characterisation that they are special. ... Most of the facts said to make the case special are, upon analysis, no more than evidence that the risk of harm to the first respondent was foreseeable."
9Hayne J in Modbury Triangle stated at [105]:
"In cases such as the present, where the extent of the relevant duty is not clear, it is useful to begin by considering the damage which the plaintiff suffered, and the particular want of care which is alleged against the defendant. Asking then whether that damage, caused by that want of care, resulted from the breach of a duty which the defendant owed the plaintiff, may reveal more readily the scope of the duty upon which the plaintiff's allegations of breach and damage must depend."
10In Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540, the Court considered the imposition of a duty on the government to consumers of contaminated oysters. Gleeson CJ stated at [15]:
"Here we are concerned with the problem of deciding, in a case where the government had certain powers, whether it is accountable, through the law of negligence, for not exercising its powers, or for not exercising them sufficiently. To apply that form of legal accountability requires the identification, not merely of a power, but also a duty; a duty of care owed to a citizen or a class of citizens. A conclusion that such a duty of care exists necessarily implies that the reasonableness or unreasonableness of the inaction of which complaint is made is a legitimate subject for curial decision. Such legitimacy involves questions of practicality and of appropriateness."
11In the same case, McHugh J referred to a series of factors relevant to determining whether a public authority owed such a duty, the sixth of which was whether there was "any supervening policy reason that denies the existence of a duty of care": at [84].
12Callinan J stated at [321]:
"True it may be, that vulnerability, power, control, generality or particularity of the class, the resources of, and demands upon the authority, may each be, in a given case, a relevant circumstance, but none should, I think, of itself be decisive. Nor do I think it convenient or satisfactory to pose a test whether a particular function of an authority involves a core, or a non-core function, or relates to a matter of policy or executive action."
13Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29; 217 CLR 469 was concerned with the scope of the liability of a club for serious injuries suffered by a drunken patron when struck by a vehicle on a public road after leaving the club. Gleeson CJ stated at [18]:
"The consequences of 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. The argument should be rejected."
14Cattanach v Melchior (above at [4]) involved a claim by parents against a medical practitioner who had carried out a tubal ligation of the mother's left fallopian tube only, accepting her advice that her right fallopian tube had been removed earlier, but without advising her to have that fact checked by investigation, or warning her that she could conceive if the assumption proved wrong. It was a case in which duty, breach and the award of some damages were all conceded, the issue being limited to the cost of raising and maintaining the child. The appeal was dismissed. In dissent, Gleeson CJ noted that the common law "does not allow a person to treat his or her own birth as actionable damage, just as it does not allow the death of a human being to be complained of as an injury": at [35]. In seeking to maintain coherence, in a passage of direct relevance in the present context, the Chief Justice continued:
"The legal incidents of the parent-child relationship can only lawfully be avoided by adoption. The various ways in which common law and statute protect the child, by imposing and reinforcing parental obligations, reflect international norms. Article 23 of the International Covenant on Civil and Political Rights 1966 declares that '[t]he family is the natural and fundamental group unit of society', and Art 24 provides that every child shall have the right to such measures of protection as are required by the child's status as a minor, on the part of the child's family, society and the State. Article 10 of the International Covenant on Economic, Social and Cultural Rights 1966 requires that '[t]he widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children'. Article 18 of the Convention on the Rights of the Child 1989 refers to 'the principle that both parents have common responsibilities for the upbringing and development of the child'."
15Gleeson CJ also noted at [26]:
"Mr and Mrs Melchior have the legal status of guardians and custodians of their son, subject to any order of a court, until he attains the age of 18 years [The Family Law Act 1975 (Cth), s 61C(1)]. Their responsibilities extend to the physical, mental, moral, educational and general welfare of the child [Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) (1992) 175 CLR 218 at 278, Brennan J]. The Family Law Act 1975 (Cth) recognises (s 60B) that children have the right to be cared for by both their parents, regardless of whether the parents are married, and (s 66C) that the parents of a child have the primary duty to maintain the child."
16Against this background of legal principle, it is clear that questions of coherence arise in respect of an action in tort by a child against either or both of his or her parents. However, it is not readily apparent how such issues are to be resolved. On the one hand, it may be thought to be supportive of such legal principles to allow a child to enforce parental obligations. On the other hand, it might be thought that to allow a child to bring proceedings in tort against a parent might be destructive of the underlying relationship which the law recognises, supports and seeks to maintain. A similar concern underlay the reasoning of McHugh and Gummow JJ, who were in the majority in Cattanach. In a joint judgment they stated at [56]:
"It can hardly be disputed that, in myriad ways, the law reflects a concern with the value of life and the welfare of infant children. But, against that general background, even in the exercise of the parens patriae jurisdiction, hard choices are to be made rather than broad statements repeated."
17Harriton v Stephens [2006] HCA 15; 226 CLR 52 involved a claim by a child with severe congenital disabilities resulting from her mother being infected with the rubella virus during the first trimester of her pregnancy. Her mother, having been wrongly reassured that her illness was not rubella, allowed the pregnancy to proceed. The plaintiff claimed damages on the basis that, if properly advised, her mother would have terminated the pregnancy. The Court held that the doctor did not owe a duty of care to the child and that, in any event, it was not possible to establish damage by comparing a life subject to severe disabilities with non-existence. Kirby J dissented. The plaintiff in the present case relied upon a passage in the dissenting judgment to the following effect:
"[128] The possibility of litigation of such a kind has occasioned expression of judicial revulsion. It has been condemned on the grounds that it would have the 'potential for the disturbance of family life [and] the fabric of society' and 'provide a basis for ... interfamilial [sic] warfare'.
[129] The flaws in this reasoning are so obvious that they scarcely require expression. First, it is not unknown in Australia for children to sue their parents in tort. Australian law does not recognise any principle of parental immunity in tort. Thus, actions against parents by their children are not uncommon in the context of motor vehicle accidents. It has been held that children even enjoy a right of action against their mothers in respect of pre-natal injuries sustained as a result of the mother's negligent driving. There is no evidence that such proceedings have resulted in any disintegration of the family."
18There are cases in which children have sued their parents in negligence. It has been said that the existence of a parent/child relationship confers no immunity from suit: see Hahn v Conley [1971] HCA 56; 126 CLR 276 at 283 (Barwick CJ). However, the Chief Justice further held that "the moral duties of conscientious parenthood do not as such provide the child with any cause of action when they are not, or badly, performed or neglected". He accepted that in particular situations there will be a duty on a carer to take reasonable care to protect the child against foreseeable danger but "there is no general duty of care in that respect imposed by the law upon a parent simply because of the blood relationship": at 283-284. It followed that "parents like strangers may become liable to the child if the child is led into danger by their actions".
19In Robertson v Swincer (1989) 52 SASR 356 at 361-362, a case concerned with the responsibility of a father to a child who ran onto the road and was injured by a passing car, King CJ stated:
"The social consequences of a legal rule imposing a duty of care upon the custodians of children to protect them from harm, requires consideration. The moral duty which rests upon parents and those acting in their place continues during every moment of the time during which the child is in their care. If that is to be converted into a legal duty it must be recognised that departure at some time from the standard of reasonable care even by the most alert and prudent of parents is almost inevitable. There are moreover no readily recognisable standards for parental supervision as there are for specific activities such as driving a motor car. ...
The threat to the financial security of parents and families is by no means the only adverse social consequence to be feared. Parents and children in our society are very dependent upon the support and assistance of benefactors. Children are cared for frequently by supportive relatives and friends and by kindly neighbours. What would be the effect upon such supportive arrangements of the knowledge that a failure of care in supervision might expose the benefactor to being stripped of his assets in consequence of an action for damages?"
20Robertson was followed in Towart v Adler (1989) 52 SASR 373 at 375. The case involved a six year old girl, who climbed onto the top bunk of a double bunk bed, which was next to an open window and fell out. The premises were a holiday rental. She sued the landlord, who sought contribution from her father for negligence in leaving the window open. The landlord's claim was dismissed on the basis that the father owed his child no legally enforceable duty of care. (He was also found, in the alternative, not to have been negligent: at 376.)
21Many of the cases concerning the liability of parents or carers have involved motor vehicle accidents. It has often not been the child who has brought proceedings, but the driver of the vehicle who has sought contribution from the parent: Hahn v Conley and Robertson v Swincer both fell into that category. However, not all cases involve road accidents: some actions have been brought for failure to take reasonable care within the home. In one English example, a child sued her foster mother for allowing her to place her foot in a container of scalding water, which caused third degree burns: Surtees v Royal Borough of Kingston Upon Thames [1992] 2 FLR 559. In a passage approved by Lord Hutton in Barrett v Enfield London Borough Council [2001] 2 AC 550 at 588, Browne-Wilkinson V-C stated:
"I further agree with Stocker LJ that the court should be wary in its approach to holding parents in breach of a duty of care owed to their children. It is accepted that the duty owed by Mr and Mrs H, as foster parents, to the plaintiff was exactly the same as that owed by the ordinary parent to his or her own children. There are very real public policy considerations to be taken into account if the conflicts inherent in legal proceedings are to be brought into family relationships."
22In this State, a seven year old child on a sleepover, who went outside, before adult members of the household were awake, and injured herself on a trampoline, sued her friend's parents in negligence: Doubleday v Kelly [2005] NSWCA 151. There was no discussion of whether or not there was a duty of care enforceable in tort law.
23In two other cases in this Court the question of parental duties enforceable in tort was expressly addressed. St Mark's Orthodox Coptic College v Abraham [2007] NSWCA 185 was again a third party contribution claim against a parent. The plaintiff, a nine year old boy, had been injured whilst playing at the school, prior to the time at which teachers became available to supervise the children. Ipp JA held at [35]:
"Taking a nine-year old child from his home environment and leaving him at school is conduct that will usually involve a potential risk of harm to the child (which will vary in degree depending on the circumstances). In my view, any parent who performs such an act may owe a duty to the child to take reasonable care in not exposing the child to foreseeable harm in doing so. This duty, if it arises, will spring out of the particular situation: not the mere fact of the parent/child relationship. The duty may arise from the control that the parent (as guardian of the child) exercises over the child, the dependence of the child on the parent, the vulnerability of the child, the foreseeability of harm, and other factors that, according to the modern law of negligence, are relevant."
24In the event, the father was held not to be negligent. However, in reaching the conclusion that the father owed him a duty (for which he could no doubt have been sued for breach by his son) Ipp JA stated (in a judgment with which Young CJ in Eq and I agreed) at [34]:
"The following example, albeit extreme, illustrates that in such circumstances a duty of care must arise. Assume that parents, for reasons solely of convenience to themselves, leave their nine-year old son at school, alone, at, say, 3.00 am in mid-winter, to fend for himself until the students and teachers arrive at about 8.00 am. Assume that in the darkness, in an attempt to find shelter, he injures himself. It could not be suggested that, in these circumstances, the parents did not owe a duty of care to their child."
25On reflection, I do not think that the example is persuasive in the way that was intended. First, extreme examples, invoking perhaps deliberate breach of duty, or reckless indifference as to foreseeable harm, or at least gross negligence, do not necessarily support the existence of a duty in less extreme circumstances. Further, the example distracts attention from the real issue, which is whether in the far more benign circumstances revealed by the case itself, the law would contemplate a suit brought by the son against his father.
26The second case was Tweed Shire Council v Howarth [2009] NSWCA 103. In this case a girl, aged two years and four months, was exposed to the dangers associated with an unprotected storm water drain running into a pond. The drain and pond were under the control of the Council. Bordering the drainage reserve was a property with a duplex owned by the young girl's father. He, and his father, went to the duplex to lay turf in the front yard, taking the girl with them. The girl wandered off and was found in the pond. She was resuscitated but suffered brain damage. The girl sued the Council, which claimed contribution from the father. Giles JA, in a judgment with which Ipp JA and I agreed, stated at [19], after having noted that there was no principle of parental immunity in tort:
"There was much more here than a relationship of parent and child. Mr Howarth took Carly close to a source of danger to a small child if not well supervised, on the allegations in the proposed cross-claim a source of danger of which he knew or ought to have known. In my view, there is an arguable case that he thereby came under a duty to take reasonable care not to expose her to foreseeable harm. Reasonable care would include adequate supervision to guard against her wandering off while the turf was being laid and falling into the nearby pond."
27Howarth was concerned only with the availability of the cross-claim, not with its merit, the cross-claim having been struck out prior to trial. Reference was made to the comment in Abraham that "bringing up children cannot be made risk-free, and that exposure from time to time to risks of harm is 'inherent in the process of growing up, new experiences and maturing in an appropriate way'". While noting that such matters were not relevant to the circumstances then before the Court, they were nevertheless accepted as relevant to the determination of the claim.
28Sappideen and Vines, Fleming's the Law of Torts (10th ed, 2011) stated at p 766 that "[t]here is consensus that the parents' duty to feed, clothe, maintain, educate and generally care for their child is not enforceable in tort, whatever its moral, or other legal (for example, criminal) sanctions". They also found in the cases denial of "any general custodial duty of care towards the child", referring to Barrett v Enfield LBC, Robertson v Swincer and Towart v Adler, but noting two exceptions, Anderson v Smith (1990) 101 FLR 34 and Curmi v McLellan [1994] 1 VR 513. The authors accepted that a duty might arise where the parent was present and led the child along or across the road.
29Of the apparent exceptions, Curmi may be put to one side. It involved a father allowing his son and six of his son's friends, aged between 16 and 17, to spend a weekend on his houseboat, on which there was an unlocked cupboard containing an air gun and ammunition. One of the friends shot another in the eye. The victim successfully sued the father in negligence. The facts are remote from the present case.
30Anderson v Smith was a decision of Nader J sitting in the Supreme Court of the Northern Territory. A grandmother, who agreed to mind her 14 month old granddaughter whilst the child's mother went out with friends, failed to shut the backdoor securely, so that the child fell in a swimming pool, suffering severe injuries from which she ultimately died. The mother sued the grandmother for damages for nervous shock. The reason for considering whether the grandmother owed the child a duty of care arose from the submission by the defendant that she could not be liable for nervous shock suffered by the mother unless she herself owed a duty of care to the victim. Nader J referred to Hahn v Conley, stating that he did not think that the reasoning of Barwick CJ excluded liability in the case before him. Nader J also stated that he had "read" a number of South Australian cases, referring to Posthuma v Campbell [1984] 34 SASR 321, Robertson v Swincer and Towart v Adler. Although those decisions might be thought to be squarely against the conclusion to which he came, there was no further reference to them or attempt to distinguish them. Little weight can be given to the conclusion in Anderson.
31Returning to the present case, the appellant submitted that the trial judge had erred by failing to take into account the extensive list of factors relevant to considering whether a duty of care exists, as set out by Allsop P in Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649 at [103]. These "salient features" provide a valuable checklist of the kinds of factors which can be of assistance. They do not constitute mandatory considerations, failure to address which will constitute error of law; nor do they lead to a formula which will provide a result in a particular case. Each involves considerations of varying weight; some will be entirely irrelevant. What is necessary is to focus upon the considerations which are relevant in the circumstances of the particular case.
32Just as the concept of a "proximate cause" proved unhelpful in identifying the relationship between the impugned conduct and the harm in Wagon Mound (No 1) at 397, so the related concept of "proximity" between the person responsible for causing the harm and the injured party has also proved unhelpful and has been rejected. It is perhaps an irony that in terms of proximity, it is hard to imagine a closer relationship between two persons than that of parent and babe in arms. However, it is the very closeness of that relationship which may render a legally enforceable duty inapt. As noted by McCurdy in "Torts Between Persons in Domestic Relation", 43 Harvard L Rev 1030 at 1077 (1929-1930), though in terms redolent of an earlier era:
"If a cause of action is ever to be recognised between parent and minor child for a personal injury, the relation must necessitate to some extent a treatment different from that applicable to ordinary persons. Three basic factors can not be ignored.
The fact that the parties are in such close relationship must render innocuous many acts and omissions that would usually be tortious. Every touching even against the will would not constitute a battery. Moreover, the amount of care required to meet the standard of due care is necessarily affected by the relation. Conduct in the family differs from ordinary conduct. The parties are in a common establishment and are engaged for a common benefit in a common domestic enterprise. The child can hardly be said to assume the risk of family management, as may be said of husband and wife, since he finds himself in the relation through no choice. But since the parent likewise finds himself in the relation through no legal choice, he should at most be held to no higher standard of care than his own abilities, and should ordinarily owe, in the affirmative conduct of the domestic establishment, no greater duty to the members thereof than he exercises in respect to himself.
Since the law imposes the duty to rear and discipline the child, and confers the right to chastise it and prescribe a course of conduct designed for its development, there must be a wide sphere of discretion, conduct in the exercise of which must be privileged."
33Thus, the fact that a baby will be entirely vulnerable and dependent upon a carer is obvious and must, no doubt, not be ignored; but, like the underlying policy of maintaining and supporting family relationships, that fact provides little guidance in a particular case.
34An additional consideration, identified by King CJ in Robertson v Swincer, is that the law has no "readily recognisable standards for parental supervision". According to McCurdy any standard might have to take account of the actual capabilities of the individual parent - not an approach favoured by the law of negligence generally: see Imbree v McNeilly [2008] HCA 40; 236 CLR 510 at [10] (Gleeson CJ, Crennan J agreeing), [69] and [72] (Gummow, Hayne and Kiefel JJ, Crennan J agreeing), [179] (Kirby J). The closest analogy is to be found in care and protection legislation, pursuant to which a government authority, or a court, may determine that a child is at risk of harm in the care of its natural parents and will be better off if removed to foster care or to an institution. The present test in New South Wales is identified in the Children and Young Persons (Care and Protection) Act 1998 (NSW), s 23:
23 Child or young person at risk of significant harm
(1) For the purposes of this Part and Part 3, a child or young person is at risk of significant harm if current concerns exist for the safety, welfare or well-being of the child or young person because of the presence, to a significant extent, of any one or more of the following circumstances:
(a) the child's or young person's basic physical or psychological needs are not being met or are at risk of not being met,
(b) the parents or other caregivers have not arranged and are unable or unwilling to arrange for the child or young person to receive necessary medical care,
(b1) in the case of a child or young person who is required to attend school in accordance with the Education Act 1990-the parents or other caregivers have not arranged and are unable or unwilling to arrange for the child or young person to receive an education in accordance with that Act,
(c) the child or young person has been, or is at risk of being, physically or sexually abused or ill-treated,
(d) the child or young person is living in a household where there have been incidents of domestic violence and, as a consequence, the child or young person is at risk of serious physical or psychological harm,
(e) a parent or other caregiver has behaved in such a way towards the child or young person that the child or young person has suffered or is at risk of suffering serious psychological harm,
(f) the child was the subject of a pre-natal report under section 25 and the birth mother of the child did not engage successfully with support services to eliminate, or minimise to the lowest level reasonably practical, the risk factors that gave rise to the report.
(2) Any such circumstances may relate to a single act or omission or to a series of acts or omissions.
35It is clear that this provision would not usually be satisfied by isolated acts of negligent behaviour. However, there is nothing in this statutory scheme, or any other operating in this State, which would suggest that a baby would have a right of action against its parent or indeed a close relative, for physical injury resulting from some isolated inadequacy in the level of domestic care provided in the home. Nor, as analysed above, do the cases to which reference has been made reveal such a cause of action having been accepted, except in relation to claims for contribution.
36The case law reveals a range of different circumstances, which may give rise to differing results. First, where a child is injured in a road accident, where the nature and standard of the duty depend on what is required generally of the driver of a motor vehicle, and in circumstances where liability will usually be met by a third party insurance policy, the courts have had no hesitation in imposing a legally enforceable duty of care to a child. Secondly, where a young child is removed from the safety of the home and exposed to potential dangers, an enforceable duty of care has been accepted. Thirdly, the law has not imposed an enforceable duty in respect of decisions by parents as to the future upbringing of a child: Barrett v Enfield LBC at 588 (Lord Hutton). Fourthly, in the case of a very young child in the care of his or her parents (or foster carers) within the home, the weight of authority is against the existence of any enforceable duty of care.
37The issue in the present case involves the liability of the grandmother to her baby granddaughter; however, it is helpful to consider the situation first by reference to one hypothetical variation in the facts, that is to suppose it was the mother who was carrying her baby at the time of the slip and fall. The mother had both moral and legal obligations with respect to the custody and care of her child, borne jointly with her husband, until the child reached 18 years of age. The accident would have rendered those responsibilities significantly more burdensome and, as in many cases of permanent disability, a burden which is likely to continue for the life of the child, including through adulthood, unless and until the child acquires sufficient skills to care for herself or, possibly, is placed in an institution. At least for the period of her minority, it would be legally incoherent to say that the negligence of the parent gave rise to a legal obligation to care for the child. Perhaps ironically, at least in the absence of insurance, the occurrence of the accident may well diminish, rather than increase, the resources available to the parents to look after the plaintiff. Legal proceedings would diminish those resources further. So long as the parents remained together, such proceedings would never be brought. Yet, no legal principle has been identified why there should be a duty of care in such circumstances, enforceable by the law of tort. To so find would be nonsensical or, in the preferred language of legal principle, it would render the law incoherent.
38If that conclusion is correct in respect of harm arising during the child's minority, it is difficult to see how the duty should arise merely because a 'breach' causes injuries likely to require care and assistance extending into the child's adulthood.
39Further, if those conclusions are correct, it is necessary to ask what aspect of legal principle would give rise to a different conclusion with respect to a member of the family, such as the grandmother in the present case, who voluntarily takes over the care of the child for a period to allow the mother to rest. The answer is that no legally enforceable duty exists.
40A conclusion that no duty of care was owed in the present circumstances says nothing about the circumstances where a child is subjected to domestic violence or even gross and continuing negligence of the kind which might put the child "at risk of significant harm". Nor does it say anything about the position of professional carers providing services for reward. It is not necessary to consider whether that would be so in respect of an older child with some capacity to look after him or her self. The conclusion is limited to the proposition that a grandmother assisting a child's mother by looking after her in the home, whilst the mother rested, owed no greater duty of care to the child than did the mother. The mother owed no duty enforceable by an action in tort in respect of her ordinary day-to-day care of her baby; the grandmother was in a similar position and it follows that the child's claim against her should have failed on the basis that she owed no duty of care enforceable in tort.
41BARRETT JA: I have had the advantage of reading in draft the judgments prepared by Basten JA and Sackville AJA.
42Their Honours have come to different conclusions on the question whether, in the circumstances pertaining at the time the plaintiff was injured, the grandmother owed her a duty of care in negligence. They are, however, agreed (and I too accept) that, for the reasons stated by Sackville AJA, there was no breach of any such duty to which the grandmother was subject.
43There is accordingly no need for me to offer an answer to the question whether the grandmother owed a duty of care. I merely say that there is, in my opinion, much to be said for the view that courts should be slow to characterise as negligent gratuitous care bestowed on a child by a person exercising parental functions in a family or domestic setting, whether or not the person is a biological parent.
44The Court should make orders as Sackville AJA proposes. Subject to the foregoing, I agree with his Honour's reasons.
45SACKVILLE AJA: This is a very sad case. A baby, aged just under six months, suffered serious and apparently permanent injuries when her grandmother fell down the staircase while carrying the baby. The accident happened at about 5.30 am on 25 January 2006, at a holiday home owned by the baby's great uncle. I refer in this judgment to the baby, whose name is Molly, as "the Plaintiff" and to her grandmother as "Reverend Hoffmann".