‘’Porter v The West Bloke Hotel’’
(This is a fictional case)
Advice to Elliot
1, Duty of Care Analysis
The occupier of premises must exercise the standard of care accordingly.[1] The West Bloke Hotel has full control over the premises, therefore has the duty to ensure the safety of the entrants.
Elliot is not the invitee of the hotel as children are not allowed in the gambling areas, but the entire hotel doesn’t ban any babies, the hotel car park is still the Hotel’s property. “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] Elliot is owed a duty under the established duty categories owed to 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 said, “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 scope of the hotel’s duty extends to the point to ensure the safety of the car park and prevent potential harm to entrants.
The principle of proximity, such as nearness, [6] would have also required the hotel to exercise ‘’a duty of care that is owed to one’s legal neighbour.’’ [7]
2, Breach of Duty
The legal principle to assess the breach is the objective test of what relevant knowledge a reasonable person in the Hotel’s position has had, or ought to have had, at the time of harm arose. [8] In this case, only the ordinary standard of care is to be expected as the Hotel is a general business precinct.
The rule to adhere requires only the objective standard that ‘’a man of ordinary prudence would observe’’. [9] An ordinary person may observe that the advertisement for ‘all their new friends’ in the wider community would have attracted the parents, and without childcare facilities, children as entrants might be exposed to certain risks on the premises. Some precautions should have been taken to provide a safe environment.
The rationale behind Glasgow v Muir is the reasonable man is not expected to contemplate the risky consequence triggered only by an accident while the normal operation is safe. [10] In our case, the risk is not an accidental factor. The hotel would have contemplated the potential risk, either direct or indirect, which is embedded in daily unsafe operations, such as inadequate facilities, poor condition of car park, negative influence of immersive gambling room, etc.
The first element of breach of duty is the foreseeability of risk,[11] being neither fanciful nor far-fetched. [12] It is sufficient that injuries to a class of persons the plaintiff belongs to are foreseen, but not the precise incidents, only some harm may occur. [13] The risk must also not be insignificant, [14] this only considers ‘’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 have risen sharply and shortly and been harmful to children. Without childcare facilities, children of regular customers would be very likely exposed to such unsafety. The precautions will be assessed against the calculus of negligence as follows.[16]
The direct risk of harm is the temperature in the open car park. The probability of the occurrence of harm is determined by the speed of temperature reaching a risky threshold, the probability would have been very high as the temperature could have risen drastically and instantly.
The magnitude of the risk would focus on the severity of the harm therefore the vulnerability of the plaintiff is vital.[17] The harm would have been critical given the baby Elliot cannot appreciate the danger at all. Hotel shall give the amount of care proportionately to the magnitude of the risk due to the vulnerable Elliot relies on the hotel’s care but the inadequate facilities force the customer like Brooke to make a poor choice. [18]
At a minimum, the burden of taking precautions could be small by erecting the warning signs appropriately, i.e. at the entrance of the car park, gambling room or the lounge, etc. An inexpensive sign explicitly explained the danger may have prevented the accident. [19] Alternatively, the hotel may upgrade the car park or childcare facilities, the extra cost and difficulty to do so will be neutralized by the magnitude of the risk.
The social utility is associated with the risk of Brooke’s gambling addiction, partially causing Elliot’s injury. As per the regulation, gambling providers must take minimum precautions by ‘’displaying mandatory warning messages in advertising and for responsible gambling messages in gaming areas’’, also ‘’prohibiting the serving of alcohol to players seated a gaming machine’’; [20] besides, gaming employees must be trained to identify problem gambling and offer intervention, etc. [21]
The bartenders or other hotel employees may have observed that Brooke, always coming with her baby, is often under the dual influence of both alcohol and gambling addiction. The latter, caused by hotel’s deliberate business strategy, may lead to the risk associated with her child’s safety. The hotel failed to comply with the minimum regulations to prevent Brooke’s negligence.
3, Damage
To establish the liability of 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 physical nature. [23] Elliot may seek compensation regarding pain and suffering, medical expenses, voluntary services, etc. [24]
4, Factual Causation
The court would adopt the necessary condition test to identify factual causation.[25] It’s likely that Brooke’s negligence and hotel’s omission are joint causations that contributed to the damage. But for the hotel negligently failing to improve the condition of the open car park, Elliot would not have suffered severe harm due to heat stress.
In the material contribution test, evidence showed that the sharply increased temperature in the car would almost immediately hurt a child. Hotel’s omission materially increased the risk of such harm.
Equally important, but for Brooke didn’t negligently leave the baby in the car for so long, Elliot would not have suffered such harm, although Elliot might be exposed to other risks due to inadequate childcare facilities. However, it’s arguable that Brooke’s negligence might be caused by hotel’s omission under social utility.
5, Remoteness
The negligence depends on if 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 is sufficient for the ordinary person to foresee the kind of damage associated with heat stress, 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 shortly.
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 the 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 such as that of parents and children, [33] Elliot, being an infant plaintiff, is owed a duty of protection by Brooke. 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]
There are two arguments in the Hotel’s defence: negligence and causation. Brooke could have taken reasonable precautions to prevent the harm because when she left the baby in the car she was sober, the evidence suggests the child would have been harmed by the temperature in a few minutes, the harm was 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, but for test will be used to assess the causation, that Elliot’s injuries would not have occurred if Brooke didn’t leave Elliot in the car.
Conclusion
It is likely that Elliot would have a valid negligence claim given the existing duty, the breach of duty, and the scope of liability would extend to the harm. Damage will be awarded but due to Brooke’s contributory negligence, the court will calculate the compensation proportionately within the scope of liability of each defendant. [37]
[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.
[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).