Legal Method and Reasoning Assignment

Part One: Case Summary

Part Two: Critique

I believe the court came to the correct decision. The judges do not discount the employer’s general duty of care, but qualify that risks must be reasonably foreseeable for liability in tort negligence to apply. Stating that provision of security does not make a risk objectively foreseeable ensures that this case does not act as a deterrent for risk averse employers, by not imposing a higher duty of care simply because more security is present. Generally, additional security is seen as beneficial and employers should not be punished for going beyond the most basic duty to keep employees safe.

I agree that it is illogical for provision of security to be essential to ensure a safe workplace for Father Christmas employees. To decide otherwise would have far reaching consequences, potentially to the unreasonable requirement of personal security for all employees. This case implies that if violence or injury to employees was foreseeable then employers would be required to provide appropriate security to fulfill their duty of care. This is an important distinction for maintaining safe workplaces, specifying that security provision must be appropriate considering the level of foreseeable risk.

Part Three

(i)  Advice for Pez: Does the Daisy Bay Detour owe Pez a duty of care?

Precedent

In Australia, previous binding judgments do not support Pez in this issue, as generally, a licensee does not owe a duty of care to patrons for injuries sustained following voluntary consumption of alcohol[1]. Daisy Bay Detour would argue that imposition of such a duty, if they needed to detain Pez until she was no longer intoxicated, would create conflicting directives, requiring them to act against statutory orders, such as by false imprisonment[2], and potentially tort law, through assault[3]. Previous cases emphasise the importance of maintaining individual free will[4] and autonomy[5]. Subsequently, it is unlikely the bar would be found to have a duty of care in this instance. 

Dissenting judgments

Pez could support her argument using the dissenting judgments in Cole, as they may be considered persuasive obiter of the High Court[6]. The dissenters propose a licensee’s duty of care includes protecting from injury, including injury resulting from voluntary consumption of alcohol,[7] and extending to taking ‘affirmative action’[8] to prevent such an injury. In opposition, the bar could reference Gleeson’s opposing statement, that there is no ‘legal duty to rescue’[9] nor prevent injury resulting from intoxication.[10]  This line of reasoning would likely resolve in the bar’s favour, as they would present the additional binding judgment in CAL, that there is no general duty of care.[11] However, Pez may point out that it is possible to have ‘exceptional cases’.[12]

Exceptional circumstance

Pez’s strongest argument would be qualifying this instance as an exceptional circumstance; that she was vulnerable as a result of her agoraphobia (potential for panic) and underage status, which impaired her ability to care for herself. This situation could require a licensee to have a duty of care which is beyond that of a regular adult patron[13], yet it would be difficult to prove the bar was aware of her vulnerability.

Conclusion

On balance, Pez is unlikely to succeed in establishing the Daisy Bay Detour owed her a duty of care. Even if she proposes that she was vulnerable and an ‘exceptional case’[14], it would be almost impossible to show the bar was aware of her vulnerable status, to prove they should have acted to mitigate additional foreseeable risk. The bar would state she was acting freely and autonomously, and could not restrain her to prevent injury without violating other tort laws and statutory duties.

(ii)  Advice for Priyanka: Does Dia owe Priyanka a duty of care?

It would be challenging for Priyanka to succeed in proving Dia owed her a duty of care. While it is established that a child may bring action against their mother in the tort of negligence for injuries that occur antenatally,[15] it has been stated that if there is no relevant compulsory insurance fund to mitigate the social and policy implications of the case, it is unlikely be successful.[16]

Dia not negligently driving

Priyanka would present Lynch[17]and Bowditch[18] as supporting binding precedent that a child injured in utero, once born, can be successful in a tort negligence claim against their mother. However, the duty of care in these cases was specific to the act of negligent driving, not the general behaviours of the mother[19]. Dia would distinguish the current case, stating that as she was not negligently handling her motor vehicle, no duty of care would be established. This would likely succeed as her actions did not lead directly to the injury.

No general duty of care

Priyanka could argue that Dia owed her a general duty of care, focusing on Dia’s other behaviours that could be considered negligent, such as smoking marijuana (read more in this medical marijuana essay) or parking outside the bar, but this line of reasoning is unlikely to be successful. It has been established in Dobson,[20]apersuasive international case, and affirmed in binding local precedent[21] that a mother does not owe a general duty of care to the foetus they carry. Dia would rely on public policy[22] and social implications,[23] as well as the notion that there can be no ‘reasonable pregnant woman’,[24] to confirm she does not owe a general duty of care to Priyanka.  For Priyanka to succeed in this line, the judge would have to determine the precedent as ‘plainly wrong’,[25] which improbable in this instance.

Legal Method and Reasoning

While unlikely Priyanka will succeed proving Dia owed her a duty of care in this instance, she may have a case suing Pez as liable in tort negligence. Priyanka’s injuries are more attributable to Pez’s actions, and precedent supports that a third party can be liable in tort negligence to a child for injuries inflicted on them antenatally, once the child is born.[26]

[1] Cole v South Tweed Heads Rugby League Football Club (2004) 217 CLR 469, [17], [121]; CAL No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390, [64].

[2] Cole v South Tweed Heads Rugby League Football Club (2004) 217 CLR 469, [130].

[3] CAL No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390, [39].

[4] Cole v South Tweed Heads Rugby League Football Club (2004) 217 CLR 469, [14], [115].

[5] CAL No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390, [38], [54].

[6] Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, [135].

[7] Cole v South Tweed Heads Rugby League Football Club (2004) 217 CLR 469, [31], [39].

[8] Ibid, [37] (McHugh).

[9] Cole v South Tweed Heads Rugby League Football Club (2004) 217 CLR 469, [15].

[10] Ibid, [17].

[11] CAL No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390, [52].

[12] Cole v South Tweed Heads Rugby League Football Club (2004) 217 CLR 469, [14], [131].

[13] Ibid [14]; CAL No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390, [55].

[14] Cole v South Tweed Heads Rugby League Football Club (2004) 217 CLR 469, [131] (Callinan J).

[15] Lynch v Lynch (1991) 14 MVR 512, [35].

[16] Bowditch (by his next friend Bowditch) v McEwan [2001] QSC 448, [24].

[17] Lynch v Lynch (by Her Tutor Lynch) (1991) 25 NSWLR 411, 421.

[18]Bowditch v McEwan [2003] 2 Qd R 615, [16] .

[19]Lynch v Lynch (by Her Tutor Lynch) (1991) 25 NSWLR 411, 415; Bowditch v McEwan [2003] 2 Qd R 615, [13].

[20] Dobson v Dobson [1999] 2 SCR 753, [80], [84].

[21]Bowditch v McEwan [2003] 2 Qd R 615, [13].

[22] Dobson v Dobson [1999] 2 SCR 753, [76].

[23] Bowditch v McEwan [2003] 2 Qd R 615, [13].

[24] Dobson v Dobson [1999] 2 SCR 753, [79] (Cory J).

[25] Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, [135].

[26] Bowditch (by his next friend Bowditch) v McEwan [2001] QSC 448, [11]; Bowditch v McEwan [2003] 2 Qd R 615, [5].