Duty - 'special relationship'
7The trial judge held that the applicant owed the respondent a duty of care, because the respondent stood in a "special relationship" to the applicant. This concept was not derived from the Civil Liability Act 2002 (NSW), which governed the claim, but from the general law. To appreciate the significance of the concept it is necessary to refer to the cases in which it has been articulated.
8Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254, a case having common elements with the present facts, involved a criminal assault on Mr Anzil in the shopping centre car park. Mr Anzil was employed by a tenant in one of the stores and was going home after work; it was dark and the car park was unlit. Mr Anzil sued the occupier, Modbury Triangle, saying that it was obliged to take reasonable steps to protect him from criminal attack, which it breached by failing to keep the lights on. The Court held that no relevant duty arose in those circumstances. As explained by Gleeson CJ at [17]:
"That an occupier of land owes a duty of care to a person lawfully upon the land is not in doubt. It is clear that the appellant owed the first respondent a duty in relation to the physical state and condition of the car park. The point of debate concerns whether the appellant owed a duty of a kind relevant to the harm which befell the first respondent. That was variously described in argument as a question concerning the nature, or scope, or measure of the duty. The nature of the harm suffered was physical injury inflicted by a third party over whose actions the appellant had no control. Thus, any relevant duty must have been a duty related to the security of the first respondent. It must have been a duty, as occupier of land, to take reasonable care to protect people in the position of the first respondent from conduct, including criminal conduct, of third parties."
9Gleeson CJ noted that it was "unnecessary to express a concluded opinion as to whether foreseeability and predictability of criminal behaviour could ever exist in such a degree that, even in the absence of some special relationship, Australian law would impose a duty to take reasonable care to prevent harm to another from such behaviour": at [34]. He continued at [35]:
"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 ..., 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."
10The act of the third party in Modbury Triangle was deliberate and directed at the plaintiff. The occupier had no relationship with the assailant, but it had a relationship with the plaintiff who was on its land in pursuit of a common commercial interest, being the business of its tenant and the plaintiff's employer. Further, the occupier controlled the lighting in the car park. Unlit areas to which the public has access may be dangerous late at night. People avoid them if they can. However, those factors were held insufficient to give rise to a duty owed by the occupier to the plaintiff.
11The limits of a potential duty in respect of safety of persons on premises open to the public were not explored, but Gleeson CJ stated at [26]:
"Leaving aside contractual obligations, there are circumstances where the relationship between two parties may mean that one has a duty to take reasonable care to protect the other from the criminal behaviour of third parties, random and unpredictable as such behaviour may be. Such relationships may include those between employer and employee, school and pupil, or bailor and bailee."
12These were, it may be accepted, examples of the kind of "special relationship" referred to at [34] and noted above.
13The respondent sought to distinguish Modbury Triangle on its facts: however, a precise factual comparison is not necessarily decisive. It is the principle which is to be derived from the reasoning that is critical for present purposes. With respect to the facts of the present case, the respondent identified as a key consideration the act of the applicant (through the manager of the electrical store) in locking the external door at a time when the suspects were leaving in an orderly manner. That, it was submitted, was an active exercise of control which created a novel danger. Although the suspected fraudsters had, at that stage, revealed no propensity to violent action, there was no doubt a foreseeable risk that they would react, albeit unpredictably, on discovering that the front door was locked. However, the particulars of negligence all related in various ways, not to the locking of the door, but to the release of the locking device in circumstances which placed the respondent at risk. In broad terms, the two omissions relied upon were, first, any means of communicating the reason for locking the doors to the salesman in the furniture department who, without knowing how the doors came to be locked, released the mechanism. The second omission was said to be a failure to have security officers in the store to deal with suspected fraudsters.
14Where the harm feared is a consequence of the actions of third parties, the critical question may well be, as the respondent's submissions implied, the extent to which the defendant should reasonably be expected to control the activities of those third parties. The question of a special relationship is usually discussed in that context. Thus, in the seminal case of Smith v Leurs [1945] HCA 27; 70 CLR 256, to which reference was made in Modbury Triangle, the issue in dispute was the extent of the liability of parents for the harm caused by their young son using a shanghai to project a piece of gravel into the eye of the plaintiff. The argument, not accepted by the Court, that community expectations required parents to remove such toys from their children (especially boys), assumed a degree of control over the miscreant.
15In other cases, the relevant considerations are less well defined. It is arguable that the evaluative exercise miscarried in the present case for three reasons. First, by asking a question as to the existence of a duty owed to the plaintiff, the trial judge focused too precisely on the facts of the case as demonstrated by the events which occurred. That was the error exposed by Gleeson CJ in Modbury Triangle. If the duty to protect were owed to those seeking to enter the store, would the class not extend to members of the public already in the store and staff within the store? Might not the conduct against which protection was to be provided include the act of a suspected fraudster making a dash, causing risk to persons inside and outside the store, upon realising that "the game was up"? Would the duty extend to those trying to steal goods, rather than obtain them by fraud? As further noted in Modbury Triangle, the general proposition that an occupier does not owe a duty to protect persons on its land from criminal behaviour of strangers "cannot be ignored by pointing to the facts of the particular case and saying (or speculating) that the simple expedient of" taking whatever step the plaintiff can identify as sufficient to prevent the injury, would have prevented the attack: at [29]. It might be added that, the more narrowly the circumstances giving rise to the duty are confined, the less the risk of the actual circumstances materialising and hence the greater the likelihood that a reasonable person would conclude that the risk was too slight to warrant taking any action at all. There was no evidence in this case that the circumstances which gave rise to the injury had occurred before in this store, in any other store owned by the applicant, or as to its incidence in other stores around the country, nor as to what were considered in the industry to be reasonable steps to minimise the risk.
16Secondly, although it is true that the duty cannot be assessed adequately at the level of particularity revealed by the facts of one case, it is true that the inquiry as to the existence of a duty may be close to meaningless without determining its scope (or content or extent); and scope may only be usefully assessed bearing in mind the harm suffered and the alleged breach. This may be illustrated by three passages in the judgment of Hayne J in Modbury Triangle.
"[104] In Sutherland Shire Council v Heyman [[1985] HCA 41; 157 CLR 424 at 487], Brennan J pointed out that 'a postulated duty of care must be stated in reference to the kind of damage that a plaintiff has suffered and in reference to the plaintiff or a class of which the plaintiff is a member'. ... Even that, however, may not suffice in some cases.
[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.
...
[109] ... The duty which the respondents alleged that the appellant owed must be understood to have been a duty to take reasonable steps to hinder or prevent criminal conduct of third persons which would injure persons lawfully on the appellant's premises."
17Thirdly, the language of "special relationship" does not give rise to an abstract exercise in characterisation. Rather, as recognised by all members of the majority in Modbury Triangle, it is a reflection of the legal principle expressed by Gleeson CJ in the passage set out above: at [42]-[43] (Gaudron J); [98] and [117] (Hayne J), and [147] (Callinan J, although focusing on the relationship between the plaintiff and the defendant). In the present case, no criteria were identified which would have warranted the conclusion that there was a special relationship between Mr Gonzalez and the applicant. All that the trial judge found in this respect was a conclusory statement that "there was a special relationship between the [applicant] and the members of the public, including customers inside and outside the store": Judgment, p 24. It would seem to follow that the occupiers of all retail premises in the country, even if they themselves did not conduct the retail businesses but had tenants or franchisees, had a duty to take reasonable steps to protect anyone in or near their stores from criminal attacks or, possibly, other forms of misbehaviour. Such a conclusion would contradict the underlying assumption of the common law referred to in Modbury Triangle.