Negligence case: Modbury Shopping vs Anzil.

Background of the Case

Discuss about the Australian case Modbury Triangle Shopping Centre Pty Ltd v Anzil.

This case was heard by the High Court of Australia. In this case, the respondent was successful during the trial. Similarly, the responder proved to be successful when the Full Court of Supreme Court of South Australia heard the appeal. Under these circumstances, Modbury Triangle Shopping Center made an appeal to the High Court of Australia. The facts of this case can be briefly described as follows. In this case, the appellant, Modbury owned a shopping center. On the other hand, Mr. Anzil, the respondent was hired by a video store that had leased premises in the center. In front of the weekly shop there was a large outdoor parking for the center. The car park was owned by the shopping center, Modbury. The video store remained open until 10 PM in the night and after that time the lights of the car park were automatically switched off. In this case, the respondent was leaving his workplace at 10:30 PM on a Sunday night and the lights of the car park were turned off. Subsequently, the respondent was attacked by three unidentified persons. One of the assailants had a baseball bat and the respondent suffered serious injuries. According to the lease agreement, the lighting in the common areas like the parking area was provided. According to the discretion of the appellant had a part of the cost was paid by the tenant. Earlier, almost 2 years ago, the practice was to let the lights on at the 11 PM. Later on, a request was made by the co-manager of the video store that the lights should be allowed in the 10:15 PM but just ended and nearly 12 months before the attack, the practice was adopted to switch off the lights at 10 PM. Under these circumstances, the proprietor of the shopping center was sued by the plaintiff in negligence for his failure to exercise reasonable care and switching off the lights in the car park.

In this way, the case was related with the liability of the occupier for the criminal conduct of a third party. Therefore the main issue in this case was to decide if and when a person can be held liable towards another person for a duty to take reasonable care for controlling the conduct of the third party.[1]

In this case, although it was argued by the appellant that the attack could have been prevented if better lighting was present in the car park, but the majority of the judges were quite skeptical of this claim. Therefore, it appears that mainly the case was conducted on the issue if the risk of injury was created or increased by the defendant due to poor lighting. It was pointed out by the court that in this case, the claim of the building was not based on the physical conditions in the car parking (for example that he had tripped over due to bad lighting). Instead, the claim in the present case was based on the third party's deliberate criminal actions. Therefore the issue in this case was related with the liability of the defendant for an omission, particularly the liability of the defendant regarding the criminal actions of third party. It was decided by the majority of these days that Modbury, as the occupier of the premises, had a duty which did not extend to take precautions for preventing the physical injury was to the plaintiff by criminals.

Main Issue and Decision

In order to decide if the occupiers had a did you get towards the persons who entered their land, the proximity test needs to be applied. In case of this test, physical proximity, circumstantial proximity and casual proximity is involved. Apart from it, under such circumstances, another test that can be used is the three stages test.[2] The three stages in this regard are if the damage suffered by the plaintiff can be described as reasonably foreseeable, if the relationship that existed between the plaintiff and defendant can be described as sufficiently proximate and if so, can it be described as fair, just and reasonable under the circumstances to impose the duty of care on the defendant.

The questions that need to be asked for the purpose of deciding if there has been a breach of the required standard of care include the question if it was foreseeable, if the risk was not insignificant and if any other reasonable person would have taken the precautions under similar circumstances in which the defendant was. There are other relevant factors that also need to be considered like if the cost involved in taking the precautions would have considerably increased the cost of energy.

It was also claimed by the apparent than an occupier of land is not how a duty of care, which requires the occupier to take reasonable care for preventing physical injury to the plaintiff that may be caused as a result of the criminal behavior of a third-party.[3] Therefore in the present case also, the occupier did not have any control over the actions of the attackers or on the circumstances under which the attack took place. The general rule that can be applied in the present situation is that the person does not have a duty to control the other person to prevent such person from causing damage to a third person. Generally for the purpose of occupier's liability, the duty of care in negligence regarding the physical condition of the premises arises as a result of the power that the occupier had to control the persons who enter or remain on the land and also the power of the occupiers to control the state of land. Moreover, the occupiers in a better position as compared to an entrant to know regarding the physical condition of the premises.[4]

Regarding the issue of a duty of control over third parties, it was the opinion of the majority in this case that the scope of the duties of an occupier does not extend to third parties. Apart from the exceptional circumstances or in case of the presence of the special relationship between the parties, liability is not imposed by the common law regarding the ommission to take positive steps for the purpose of protecting the other person from the criminal actions of the other party. It was also stated in this case that if a special relationship is not present, it is not the duty of a person to take steps to prevent causing harm to another person as a result of the interactions of a third party even if such a risk can be described as foreseeable. It will also recognize by the court that under some exceptional cases, a duty can be imposed on a party to take positive steps that are required in order to prevent a reasonably foreseeable risk. That has been created independent from the conduct of the defendant. Such a situation arises in cases where there is a special or protective relationship present between the parties, and an obligation has been assumed by the defendant to protect the plaintiff.[5] It can be said that such a protective relationship is present where the defendant has the capability to control the risk of harm that may be caused to the plaintiff and in cases where the plaintiff can be described as vulnerable and depending on the plaintiff for the prevention of such harm.[6]

Applying the Proximity Test and Three Stages Test

But in the present case, it was noted by the court that the occupier was not in a position to control the actions of the assailants. Similarly, the occupier did not have any knowledge regarding the impending attack. The court stated that the middle attacks cannot be predicted and it was not possible for the occupier to control such an attack.[7] Under these circumstances, it was stated that the occupier cannot be held liable in the present case, because the immediate and direct cause of the injuries suffered by the plaintiff was the attack by the offenders and these injuries were not suffered as an absence of lighting. Similarly, this fact was also noted that responsibility was not assumed by the occupier regarding the safety of the respondent. It was reasonable for the occupier to believe that the employer of the respondent would protect him. Concerning the occupier, the respondent can be placed in similar position in which any other member of the public can be placed. Similarly in the present case, the contribution of the occupier in the injuries suffered by the respondent was negligible. If liability is imposed on the occupier, it would mean that the financial responsibility has been shifted regarding the consequences of a crime, from the wrongdoer to another person. Even if such person did not have the capability to impact the behavior due to which the injuries were caused.

Moreover the court stated that there is no doubt that an occupier of land has the duty of care towards the persons who unlawfully present on the land. In the present case also, it can be said that the appellant had a duty towards the first to respond and regarding the physical condition of the car park. However, the issue in this case was related with the fact if the appellant also had a duty of the kind that is relevant for the harm that was offered by the first respondent. This issue was discussed in this case in the form of the argument related with the nature or scope of the duty. In the present case, the nature of farm caused to the respondent was in the form of physical injuries that have been caused by a third party and the respondent did not have any control over the actions of the third-party.[8] Therefore, it can be said in the present case that any relevant duty in such circumstances can be described as the duty related with the security of the respondent. It can be a duty of a person, in his position as the occupier of land, which requires him to take reasonable care for protecting the persons who were in the position of the respondent against conduct, which includes the criminal actions of the third parties.

Under these circumstances, the majority decision given by the High Court was that the appeal of Modbry should be allowed on both the issues. Consequently, it was decided by the High Court that Modbury cannot be held liable for injuries suffered by Mr. Anzil. In support of the decision, it was stated by the court. That being an occupier of land, Modbury has a duty of care towards Mr. Anzil but this duty cannot be considered to be extending to take reasonable steps for the purpose of preventing the criminal actions of third parties, as a result of which, physical injuries were suffered by Mr. Anzil. Under the circumstances where Modbury did not have any control over the conduct of the attackers. The court pointed out that even if it can be said that the failure of Modbury to provide proper lighting in the car park could have facilitated the time in the same way as it had made provision for the car park and descent and decided to park his car there but it cannot be treated as the. Main cause behind the injuries suffered by Mr. Anzil. In this case, the direct cause due to which Mr. Anzil had suffered the injuries was the conduct of the three assailants over which Modbury had no control. It was also noted by the court that in this case, the inadequate lighting had not caused the concealment of a dangerous object or condition in the carpark as a result of which, damage may have been suffered by person or property. Due to the unpredictability of criminal behavior, as a general rule, and when a special relationship is not present, a duty is not imposed by the law to prevent harm to another person caused by the criminal conduct of third parties even if such harm can be described as reasonably foreseeable.[9]

Therefore the court stated that the occupier, Modbury was not liable for the injuries suffered by the respondent.

Chomentowski v Red Garter Restaurant Ltd (1970) 92 WN (NSW) 1070

Commissioner for Railways v McDermott [1967] 1 AC 169 at 186

Dorset Yacht Co v Home Office [1970] AC 1004

Fraser v State Transport Authority (1985) 39 SASR 57

Hill v Van Erp (1997) 188 CLR 159 at 229

Kondis v State Transport Authority (1984) 154 CLR 672 at 687

Pitt Son & Badgery Ltd v Proulefco (1984) 153 CLR 644

Public Transport Corporation v Sartori [1997] 1 VR 168

Smith v Leurs (1945) 70 CLR 256 at 262

Commissioner for Railways v McDermott [1967] 1 AC 169 at 186.

Smith v Leurs (1945) 70 CLR 256 at 262