(This is a fictional negligence case)

’’Porter v The West Bloke Hotel’’

Advice to Elliot

1, Duty of Care Analysis

The occupier of premises must exercise the standard of care accordingly.[1] Therefore, the West Bloke Hotel, which has full control over the premises, must ensure the safety of the entrants.

Elliot is not an invitee of the hotel. Although the Hotel does not allow children in the gambling areas, Elliot is still on the hotel’s property in the car park, which does not restrict babies. “An occupier of land is under a general duty of care to a person entering on the land, whether as invitee, licensee or trespasser,…where there are circumstances giving rise to the general duty.’’ [2] Occupiers owe Elliot a duty under the established duty categories for that class of people – occupiers and entrants. “It is firmly established that an Occupier owes a duty of care to Entrants in respect of risks of physical injury arising out of the condition of the Occupier’s premise’’. [3]

More specifically, occupiers owe a duty of care to ensure the safety of their entrants in their car park. [4] Mullighan J stated, “the control and responsibility for the car park, as a common area, remained with the occupier at all times…it is not a matter of whether the defendant positively assumed responsibility.” [5] The hotel’s duty extends to ensuring the safety of the car park and preventing potential harm to entrants.

The principle of proximity, such as nearness, [6] would also require the hotel to exercise ‘’a duty of care that one owes to one’s legal neighbour.’’ [7]

2, Breach of Duty

To assess a breach of duty, the court can apply the objective test of what a reasonable person in the Hotel’s position would have known or should have known at the time the harm occurred. [8] In this case, we expect the Hotel to exercise only the ordinary standard of care as it operates as a general business precinct.

Objective Standard

The objective standard to adhere requires only that a “man of ordinary prudence would observe’’ it. [9] An ordinary person might recognize that advertising for ‘all their new friends’ in the wider community would attract parents and, without childcare facilities, might expose children as entrants to certain risks on the premises. Therefore, the Hotel should have taken precautions to provide a safe environment.

According to Glasgow v Muir, we do not expect a reasonable person to foresee a risky consequence triggered only by an accident if the normal operation is safe. [10] However, in our case, the risk is not an accidental factor. The hotel should have anticipated the potential risk, either direct or indirect, embedded in daily unsafe operations, such as inadequate facilities, poor condition of the car park, and the negative influence of immersive gambling room, etc.

The Foreseeability of Risk

The first element of breach of duty is the foreseeability of risk,[11] which must not be fanciful or far-fetched. [12] It is sufficient to foresee injuries to a class of persons to which the plaintiff belongs, but not necessarily the precise incidents – only that some harm may occur. [13] The risk must also be significant, [14] considering ‘’the probability of the occurrence of the risk, not the severity of the injury’’. [15]

The hotel could have foreseen that the temperature in the car, particularly in summer, would rise sharply and shortly harm children. Without childcare facilities, children of regular customers would likely face exposure to such risks. We will assess the precautions against the calculus of negligence as follows.[16]

The direct risk of harm is the temperature in the open car park.  The court determines the probability of the harm occurring by how quickly the temperature reaches a risky threshold, which is likely to be very high as the temperature could rise drastically and instantly.   

Magnitude of the Risk

The magnitude of the risk focuses on the severity of the harm, making the vulnerability of the plaintiff vital.[17] The harm would have been critical, as baby Elliot cannot appreciate the danger at all. The Hotel should provide a level of care proportionate to the magnitude of the risk, especially since Elliot relies on the Hotel’s care, but the inadequate facilities force customers like Brooke to make poor choices. [18]

At a minimum, the burden of taking precautions could be small by erecting the warning signs appropriately, such as at the entrance of the car park, gambling room, or lounge, etc. An inexpensive sign explicitly explaining the danger might have prevented the accident. [19] Alternatively, the Hotel could upgrade the car park or childcare facilities. The magnitude of the risk would offset the extra cost and difficulty.

Social Utility

The social utility associated with the risk of Brooke’s gambling addiction, partially caused Elliot’s injury. Such social utility of preventing Brooke’s gambling addiction, is significant. Regulations require gambling providers to take minimum precautions, such as ‘’displaying mandatory warning messages in advertising and for responsible gambling messages in gaming areas’’, and “prohibiting the serving of alcohol to players seated at a gaming machine’’. [20] Additionally, the Hotel must train the gaming employees to identify problem gambling and offer intervention, etc. [21]

Hotel employees, such as bartenders, may have observed that Brooke, always coming with her baby, is often under the dual influence of alcohol and gambling addiction. This situation, caused by Hotel’s deliberate business strategy, poses a risk to her child’s safety. The Hotel failed to comply with the minimum regulations to prevent Brooke’s negligence. 

3, Damage

To establish liability for negligence, “a temporal loss or damage” is essential for a negligence claim. [22] Considering the legal duty and breach of duty, Elliot has suffered “legally cognisable” personal injuries of a physical nature. [23] Elliot may seek compensation for pain and suffering, medical expenses, voluntary services, etc. [24]

4, Factual Causation

The court would use the necessary condition test to identify factual causation.[25] It’s likely that Brooke’s negligence and the hotel’s omission jointly caused and contributed to the damage. But for the hotel’s negligent failure to improve the condition of the open car park, Elliot would not have suffered severe harm due to heat stress.

Under the material contribution test, evidence shows that the sharply increased temperature in the car would almost immediately harm a child. The Hotel’s omission materially increased the risk of such harm.

Equally important, but for Brooke had not negligently left the baby in the car for so long, Elliot would not have suffered such harm, although the Hotel might have exposed Elliot to other risks due to inadequate childcare facilities. However, it’s arguable that the Hotel’s omission in terms of social utility might influence Brooke’s negligence.

5, Remoteness

The negligence depends on whether the scope of liability can extend to the harm caused by the hotel. [26] The court would use the reasonably foreseeable test of remoteness as follows. [27]  

Only the kind of damage needs to be foreseeable. [28] In our case, the physical condition of the car park makes it foreseeable to an ordinary person that heat stress could cause damage, without necessarily predicting the critical condition of irreversible organ damage.

The reasonable possibility must be met to prove the likelihood of harm, not the probability. [29] The possibility is high, as the temperature in the open car park would have risen quickly.

The mechanism of harm is unrelated. [30] The focal point is what kind of harm is foreseeable, not how the ‘’chain of events’’ caused injuries. In our case, it is sufficient that heat-associated injury is foreseeable.

The extent of the injury is also irrelevant. By applying the eggshell skull rule, [31] the Hotel cannot argue that if Elliot had not been a vulnerable baby, he would have suffered less injury. In fact, this would only ‘’increase the damages the defendant must pay’. [32]

6, Defences

Under the established protective relationship between parents and children, [33] Brooke owes Elliot, an infant plaintiff, a duty of protection.  Contributory negligence is likely to be the partial defence, but Nathan’s claim won’t be defeated due to contributory negligence according to Statutory Reform. [34]

The Hotel can argue two defences: negligence and causation. Brooke could have taken reasonable precautions to prevent the harm because she was sober when she left the baby in the car. Evidence suggests the temperature would have harmed the child within a few minutes, making the harm foreseeable and not insignificant. [35]

By applying a similar calculus of negligence, the court could decide that Brooke failed to take reasonable and foreseeable care for Elliot’s safety.[36]

Similarly, the court might use the “but for” test to assess causation: Elliot’s injuries would not have occurred if Brooke hadn’t left Elliot in the car.

Conclusion

It is likely that Elliot has a valid negligence claim given the existing duty, breach of duty, and scope of liability extending to the harm. While damage will be awarded, Brooke’s contributory negligence will lead the court to calculate the compensation proportionately within the scope of liability for each defendant. [37]

[END]

Footnote 1

[1] Civil Liability Act 1936 (SA) ss 19 and 20.

[2] Papantonakis v. Australian Telecommunications Commission (1985) 156 CLR 7, pp27-28; Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR.

[3] Neindorf v Junkovic (2005) 222 ALR 631; Australian Safeway Stores Pty Ltd v Zaluzuna (1987) 162 CLR 479.

[4] Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR.

[5] Ibid, pp11.

[6] Jaensch v Coffey (1984) 155 CLR 549.

[7] Ibid, pp 61.

[8] Civil Liability Act 1936 (SA) s 31.

[9] Vaughan v Menlove (1837) 132 ER 490.

[10] Glasgow Corporation v Muir [1943] AC 448.

[11] Civil Liability Act 1936 (SA) s 32(1).

[12] Wyong Shire Council v Shirt (1980) 146 CLR 40.

[13] Chapman v Hearse (1961) 106 CLR 112.

[14] Civil Liability Act 1936 (SA) s 31.

[15] Vincent v Woolworths [2016] NSWCA 40.

[16] Civil Liability Act 1936 (SA) s 32(2); Wyong Shire Council v Shirt (1980) 146 CLR 40.

[17] Paris v Stepney Borough Council (1951) AC 367.

[18] Ibid.

[19] Roads and Traffic Authority of NSW v Dederer [2007] HCA 42.

Footnote 2

[20] South Australia Gambling Policy – Consumer Protection,      https://www.treasury.sa.gov.au/__data/assets/pdf_file/0008/515186/factsheet-consumer-protection.pdf

[21] Gaming Machines Act 1992; Casino Act 1997.

[22] Civil Liability Act 1936 (SA) p 8 s 51 (a)(ii)(A); Williams v Milotin (1957) 97 CLR 465; Tabet v Gett (2010) 240 CLR 537; Schwebel v Telekas [1967] 1 OR 541; Williams v Morland (1824) 2 B7C 910.

[23] Harriton v Stephens (2006) 226 CLR 52.

[24] Civil Liability Act 1936 (SA) p 8.

[25] Civil Liability Act 1936 (SA) s 34 (1) (a).

[26] Civil Liability Act 1936 (SA) s 34 (1) (b).

[27] Wagon Mound No1.

[28] Jolley v Sutton London Borough Council [2003] 3 All ER 409.

[29] Wagon Mound (No 2) [1967] 1 AC 617.

[30] Hughes v Lord Advocate [1963] AC 837.

[31] Dulieu v White & Sons [1901] 2 KB 669.

[32] Watts v Rake (1960) 108 CLR 158.

[33] https://treasury.gov.au/sites/default/files/2019-03/R2002-001_ContribNeg.pdf p11.

[34] Law Reform (Contributory Negligence and Apportionment of Liability) Act (SA) 2001, s7(1).

[35] Civil Liability Act 1936 (SA) s 32 (1) (a) & (b); Wyong Shire Council v Shirt (1980) 146 CLR 40.

[36] Joslyn v Berryman (2003) 214 CLR 552, [16].

[37] Civil Liability Act 1936 (SA) s 34 (2) (b).