MR D.M. QUICK, QC: May it please the Court, I appear with my learned friend, MR K.G. NICHOLSON, for the applicant. (instructed by Thomson Playford)

MR B.F. BEAZLEY: May it please the Court, I appear with my learned friend, MR P.D. PEDLER, for the respondent. (instructed by Knox and Hargrave)

KIRBY J: Yes, thank you, Mr Quick.

MR QUICK: If the Court pleases, this application concerns the duty of care and scope of duty of care the occupier of premises in respect of the criminal conduct of third party entrants ‑ ‑ ‑

CALLINAN J: A group of footpads.

MR QUICK: Pretty nasty, I agree, your Honour. The commencing point for our argument on the application is the general principle that there is generally no duty of care to control the conduct of third parties. There are exceptional cases. The general principle is stated, if I could just refer to two brief passages both appearing in the applicant’s book of documents, both emanating from the House of Lords. One is at page 430 of the book of documents ‑ ‑ ‑

CALLINAN J: This is your authorities book?

MR QUICK: Yes, your Honour. In part of the excerpts from Balkin & Davis on Tort at the top of page 430 there is a quotation from a passage appearing in the speech of Lord Diplock in Dorset Yacht Limited v The Home Office. At the top of page 430 the passage on which I rely is quoted:

[T]he risk of sustaining damage from the tortious acts of criminals is shared by the public at large. It has never been recognized at common law as giving rise to any cause of action against anyone but the criminal himself.

KIRBY J: What about where the negligence merges into criminal negligence or where the negligence merges into the breach of a statutory duty with criminal sanctions? It cannot be stated in such absolute terms, can it?

MR QUICK: No, those would be different situations because there is then criminality on the tortious person as well, the person who is alleged to have committed the tort. The second ‑ ‑ ‑

KIRBY J: The suggestion here in this case is that the tortious liability arose because whilst you welcomed the respondent into the premises, you turned off the lights, you allowed bushes to be placed in the proximity of an obvious entrapment and position of danger and that this is rather a special set of factual circumstances that peculiarly attract to you an obligation of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Modbury Triangle Shopping Centre v Anzil

Details

AGLC: Modbury Triangle Shopping Centre v Anzil [2000] HCATrans 121
Case: [2000] HCATrans 121
Decision Date

CaseChat Overview and Summary

Modbury Triangle Shopping Centre Pty Ltd (the appellant) appealed to the High Court of Australia from a decision of the Full Court of the Supreme Court of South Australia, which had affirmed a judgment in favour of Mr. Anzil (the respondent). The dispute arose from injuries sustained by Mr. Anzil when he was assaulted in the car park of the Modbury Triangle Shopping Centre after leaving his place of employment within the centre. Mr. Anzil alleged that the shopping centre owner owed him a duty of care to ensure his safety from foreseeable criminal acts by third parties.

The High Court was required to determine whether the appellant owed a duty of care to the respondent, an employee of a tenant within the shopping centre, to take reasonable steps to prevent foreseeable criminal acts by third parties occurring in the centre's car park. Specifically, the court considered whether the appellant's control over the common areas of the shopping centre, including the car park, extended to imposing a duty to protect individuals from such harm, and whether the risk of criminal assault in the car park was sufficiently foreseeable.

The majority of the High Court, comprising Kirby and Callinan JJ, held that the appellant did not owe a duty of care to the respondent in these circumstances. Their Honours reasoned that while the appellant had control over the common areas, this control did not extend to imposing a duty to protect individuals from the criminal acts of third parties. The court distinguished between a duty to take reasonable care to prevent harm arising from the occupier's own activities or the state of the premises, and a duty to prevent harm caused by the independent criminal actions of others. The majority found that the risk of criminal assault, while not impossible, was not of such a nature or degree as to impose a positive duty on the occupier to guard against it. The appeal was therefore allowed.

Orders