It is often erroneously cited as trite law that a party cannot be found liable for the criminal actions of a third party.  While it is true that this is the general rule, there are so many exceptions that the rule warrants revisiting regularly.

 

The most significant case on this point is the decision of the High Court in Modbury Triangle Pty Ltd v Anzil [2000] HCA 61.  In that case, the Plaintiff had sustained injuries when he was assaulted in the Defendant shopping centre’s car park as he was leaving work from one of the tenancies.  The tenant employer had requested the Appellant leave the lights on in the car park after 10pm.  The lights were not on at the time of the assault on the Respondent.

 

A majority of the Court found that there was no causal relationship between the failure of the Appellant to leave the lights on after 10pm and the assault occurring.  For various reasons, a majority also found that the Appellant’s duty to the Respondent did not, in the circumstances of the case, extend to taking reasonable care to prevent physical injury caused by the criminal behaviour of third parties on the land.

 

Her Honour, Justice Gaudron (as she then was), specifically pointed out:-

 

There are situations in which there is a duty of care to warn or take other positive steps to protect another against harm from third parties. Usually, a duty of care of that kind arises because of special vulnerability, on the one hand, and on the other, special knowledge, the assumption of a responsibility or a combination of both. Those situations aside, however, the law is, and in my view should be, slow to impose a duty of care on a person with respect to the actions of third parties over whom he or she has no control.

 

Situations in which a duty of care would arise had already been considered by various Australian courts by the time the decision in Modbury was handed down.  It is perhaps more helpful to consider those cases that have been decided post-Modbury.  These decisions confirm that, while a special relationship is necessary for the scope of the duty of care to extend to taking steps to protect another against harm from third parties, those relationships are not exceedingly rare.

 

Broadly speaking, special relationships can be considered in three main contexts – master/servant relationships, licensed premises and care giving facilities.

 

Master/Servant

 

The broad scope of the duty owed by an employer to an employee increases the prospect that there will be a special vulnerability, special knowledge and assumption of responsibility.  It does not immediately follow that an employer will be liable for the criminal actions of unrelated third parties but the prospect will need to be more closely investigated than in other relationships.

 

It appears that in industries where the risk of injury to workers from violent criminals is regular, employers are well aware of the “special relationship”.  The major banks, for example, have in place training and procedures to assist tellers in dealing with critical incidents including armed robbery.

 

Cases such as Karatjas v Deakin University [2012] VSCA 53 and TAB v Beaman [2006] NSWCA 345 confirm that an employer’s duty to provide a safe place of work can extend to taking reasonable care to protect workers from reasonably foreseeable criminal activity.

 

In Karatjas, the Victorian Court of Appeal also found that the University, as occupier of the premises upon which the employer conducted the workplace, owed a duty to the employees of its contractors (including the Plaintiff’s employer) to advise of planned construction work which would impact on the safety of employees travelling across its premises.

 

Places of employment in areas of high crime and where the workers are more likely to attract the attention of criminal offenders are the most likely situations in which the Court will find that the employer has breached its duty of care to the worker if reasonable care is not exercised.  Conversely, if the place of employment is not in an area of high crime and the nature of the worker’s employment does not expose them to a reasonably foreseeable risk of being attacked by criminal third parties, the fact that the worker was in fact the victim of crime in the course of his or her employment does not render the employer liable.

 

In Marshall v GJ & KM Church & Jomik Investments [2015] QDC 248, the court determined that a cleaner who was not required to leave locked premises for the purposes of carrying out his work duties could not claim damages against his employer when he did leave the premises and suffer injuries as a result of a criminal assault.  The worker left the premises to meet a friend and the court found that the worker would have left the premises whether or not he had been given any specific direction not to leave the premises.

 

Although there are few cases on point, it appears that the employer’s duty to take action to prevent injury to a worker through the criminal acts of third parties is governed entirely by the normal principles of negligence.  The risk of injury needs to be reasonably foreseeable.  The employer needs to take reasonable care in all the circumstances.  There needs to be a causal relationship between any want of reasonable care and the reasonably foreseeable risk.  In my view, the only practical difference between cases involving the illegal actions of independent parties and any other risk of a work injury is that the lack of control that the employer has over the criminal actions of third parties will inform the Court’s decision as to reasonable foreseeability and reasonable care.  Causation will also be more difficult for the Plaintiff to establish in light of that lack of control and the frequently unpredictable nature of criminal behaviour.

 

Licensed Premises

 

Under Part 6 of the Liquor Act 1992, operators of licensed premises have a duty to exercise reasonable care to provide and maintain a safe environment in and around the premises and to take reasonable steps to stop or prevent an offence which threatens the safety of people in and around the premises.

 

Comparable New South Wales legislation was considered by the High Court in the case of Adeels Palace Pty Ltd v Moubarek [2009] HCA 48.  In a unanimous and joint judgment, the High Court noted that there was a level of uniformity between the liquor licensing regulations in all States and Territories.  In finding there was a duty of care on the operators of licensed premises to take reasonable care to avoid and manage the reasonably foreseeable risk of injury caused by criminal activities on its premises, the High Court said:-

 

Several considerations set the present case apart from Modbury and point to the conclusion that Adeels Palace owed each plaintiff a relevant duty of care. First, the complaint that was made in these cases was that the occupier of premises failed to control access to, or continued presence on, its premises. Secondly, the premises concerned were licensed premises where liquor was sold. They were, therefore, premises where it is and was well recognised that care must be taken lest, through misuse and abuse of liquor, “harm [arise] from violence and other anti-social behaviour”. And thirdly, the particular duty said to have rested on the occupier of the premises (who was the operator of the business that was conducted on the premises) is a duty to take reasonable care to prevent or hinder the occurrence of events which, under the Liquor Act, the licensee was bound to prevent occurring – violent, quarrelsome or disorderly conduct. (And although variously expressed in the legislation of other Australian jurisdictions, the evident scheme of all liquor licensing laws in Australia is to minimise anti-social conduct both on and off licensed premises associated with consumption of alcohol.)

 

Occupiers of licensed premises clearly need to anticipate the risk of criminal conduct which is more likely to occur in the context of service of alcohol.  Adequate and properly trained security staff need to be provided taking into account the number of patrons and any event, such as major sporting events, which may effect crowd disorder.  Security guards need to act reasonably and respond to threats of or actual violence.

 

Care Giving Facilities

 

Recent media attention on alleged abuse and assault of the elderly in nursing homes makes the issue of liability for care giving institutions particularly pertinent.  Regrettably, the possibility of elder abuse in institutions has not yet garnered the kind of scrutiny that children’s institutions have been subjected to through the Royal Commission.

 

Nonetheless, the principles governing the potential liability for facilities offering care of vulnerable persons are arguably analogous.

 

The well-established duty of care owed by a school to its students has been extended to cover the independent criminal actions of third parties in certain circumstances.  In The Trustees of the Roman Catholic Church v Koffman [1996] NSWSC 346, the Court determined that the school was liable for injuries sustained by a student waiting for a bus outside school grounds and school hours given circumstances where it was aware of unruly behaviour from students of a nearby High School.

 

In addressing the Defendant’s submission that a school’s duty to its students should not extend beyond the school gates, the Court determined that the issue was knowledge.  In Obiter, His Honour Justice Sheller indicated that the school may be liable for the actions of a dangerous bus driver if it were aware of the propensity of the bus driver to drive dangerously but took no action.

 

By extension, it is arguable that operators of any care giving facilities have taken on an assumption of responsibility for vulnerable people within their care.  The prospect of injury by abuse or other forms of criminal activity is reasonably foreseeable.  Potentially the limitation of liability rests with the actual or constructive knowledge of the risk.

 

Summary

 

There is no question that there are limitations upon the extent to which any party can be liable for the independent criminal activities of unrelated third parties.  However, the relationship between the parties, the degree of knowledge of potential criminal activity and the steps taken all need to be considered carefully.  Modbury is not universally applicable.