This is a very sad case. A baby, aged just under six months, suffered serious and apparently permanent injuries when her grandmother fell down the staircase while carrying the baby. The accident happened at about 5.30 am on 25 January 2006, at a holiday home owned by the baby’s great uncle. I refer in this judgment to the baby, whose name is Molly, as “the Plaintiff” and to her grandmother as “Reverend Hoffmann”.
The issue in the present case involves the liability of the grandmother to her baby granddaughter; however, it is helpful to consider the situation first by reference to one hypothetical variation in the facts, that is to suppose it was the mother who was carrying her baby at the time of the slip and fall. The mother had both moral and legal obligations with respect to the custody and care of her child, borne jointly with her husband, until the child reached 18 years of age. The accident would have rendered those responsibilities significantly more burdensome and, as in many cases of permanent disability, a burden which is likely to continue for the life of the child, including through adulthood, unless and until the child acquires sufficient skills to care for herself or, possibly, is placed in an institution. At least for the period of her minority, it would be legally incoherent to say that the negligence of the parent gave rise to a legal obligation to care for the child. Perhaps ironically, at least in the absence of insurance, the occurrence of the accident may well diminish, rather than increase, the resources available to the parents to look after the plaintiff. Legal proceedings would diminish those resources further. So long as the parents remained together, such proceedings would never be brought. Yet, no legal principle has been identified why there should be a duty of care in such circumstances, enforceable by the law of tort. To so find would be nonsensical or, in the preferred language of legal principle, it would render the law incoherent.
If that conclusion is correct in respect of harm arising during the child’s minority, it is difficult to see how the duty should arise merely because a ‘breach’ causes injuries likely to require care and assistance extending into the child’s adulthood.
I have had the advantage of reading in draft the judgments prepared by Basten JA and Sackville AJA.
Their Honours have come to different conclusions on the question whether, in the circumstances pertaining at the time the plaintiff was injured, the grandmother owed her a duty of care in negligence. They are, however, agreed (and I too accept) that, for the reasons stated by Sackville AJA, there was no breach of any such duty to which the grandmother was subject.
There is accordingly no need for me to offer an answer to the question whether the grandmother owed a duty of care. I merely say that there is, in my opinion, much to be said for the view that courts should be slow to characterise as negligent gratuitous care bestowed on a child by a person exercising parental functions in a family or domestic setting, whether or not the person is a biological parent.
The Court should make orders as Sackville AJA proposes. Subject to the foregoing, I agree with his Honour’s reasons.
In Caltex Refineries (Qld) Pty Ltd v Stavar  NSWCA 258; 75 NSWLR 649, Allsop P reviewed the High Court authorities dealing with the circumstances in which a duty of care to prevent injury to another will arise. His Honour stated (at ) that where the posited duty of care is novel, the proper approach is to analyse closely the facts bearing on the relationship between the injured person and the putative tortfeasor by reference to the “salient features” affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury. He identified (at ) the following salient features to be considered:
(a) the foreseeability of harm;
(b) the nature of the harm alleged;
(c) the degree and nature of control able to be exercised by the defendant to avoid harm;
(d) the degree of vulnerability of the plaintiff to harm from the defendant’s conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect itself;
(e) the degree of reliance by the plaintiff upon the defendant;
(f) any assumption of responsibility by the defendant;
(g) the proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant;
(h) the existence or otherwise of a category of relationship between the defendant and the plaintiff or a person closely connected with the plaintiff;
(i) the nature of the activity undertaken by the defendant;
(j) the nature or the degree of the hazard or danger liable to be caused by the defendant’s conduct or the activity or substance controlled by the defendant;
(k) knowledge (either actual or constructive) by the defendant that the conduct will cause harm to the plaintiff;
(l) any potential indeterminacy of liability;
(m) the nature and consequences of any action that can be taken to avoid the harm to the plaintiff;
(n) the extent of imposition on the autonomy or freedom of individuals, including the right to pursue one’s own interests;
(o) the existence of conflicting duties arising from other principles of law or statute;
(p) consistency with the terms, scope and purpose of any statute relevant to the existence of a duty; and
(q) the desirability of, and in some circumstances, need for conformance and coherence in the structure and fabric of the common law.
Allsop P stated (at ) that the list was not intended to be exhaustive, but should be seen as:
a non-exhaustive universe of considerations of the kind relevant to the evaluative task of imputation of the duty and the identification of its scope and content.
Allsop P’s analysis has been treated in this way in subsequent cases: see, for example, Makawe Pty Ltd v Randwick City Council  NSWCA 412, at , per Hodgson JA; at -, per Simpson J.
It will be seen that the first eight of the salient features identified by Allsop P strongly suggest that Reverend Hoffmann owed a duty of care to the Plaintiff. Indeed, there would be few cases where an injured person is more vulnerable and less capable of taking steps to protect herself than the present. Plainly Reverend Hoffmann was completely in control of the situation, in the sense that her actions determined whether the Plaintiff would be safeguarded against the foreseeable risk of injury. Reverend Hoffmann herself recognised that she had to take particular care when descending the staircase (and presumably whenever she was carrying the Plaintiff) in order to avoid the possibility of serious harm to the Plaintiff (features (j), (k)).
Allsop P recognised (at ) that:
assessment of the facts in order to decide whether the law will impute a duty, and if so its extent, involves an evaluative judgment which includes normative considerations as to the appropriateness of the imputation of legal responsibility and the extent of thereof.
One of those normative considerations is the undesirability of the law intruding into the relationship between a parent (or other family carer) and a child. The effect of imposing tortious liability on the parent or carer for negligence is to entitle a child to sue his or her own parent or family member. This may seem distasteful, particularly if the parent or carer has attempted in good faith to carry out his or her responsibilities.
But if Reverend Hoffmann owed a duty of care to the Plaintiff, as I think she did, it was not because she was the Plaintiff’s grandmother but because of the circumstances in which she undertook responsibility to protect the Plaintiff from the risk of foreseeable harm. That same duty may well be imposed on a non-relative who takes physical care and control of an infant in a domestic situation. And, as Hahn v Conley establishes, there is no parental immunity in tort.
Courts have from time to time invoked considerations of policy as a justification for negating the existence of a duty of care owed by a parent to a child. In Robertson v Swincer (1989) 52 SASR 356, King CJ suggested (at 361) that there would be “alarming personal implications for parents” if the moral duty of custodians of children to protect them from harm was converted into a legal duty. His Honour made these comments in a case in which contribution was sought from the parents of a small child who had failed to prevent the child wandering onto a road, where he was struck by a vehicle. Hahn v Conley was distinguished on the ground that the parents had not positively led the child into a situation of danger, but had simply been “engaged in the ordinary social activity of visiting friends with their family”. Whether or not the emphasis in Robertson v Swincer on the absence of a “positive act” is consistent with the current law, the facts in that case were different from those of the present case. King CJ expressly recognised (at 359-360), consistently with Hahn v Conley, that a parent or carer may owe a duty of care, depending on the particular circumstances of the case.
There is nothing particularly novel in holding that a parent or grandparent, in a situation similar to that of Reverend Hoffmann, owes a duty of care to the infant in his or her physical care and custody. Each case must of course depend on its own circumstances. But in St Mark’s v Abraham, the Court held that the father owed a duty of care to the son when leaving the boy unattended at school, but decided that the father had not breached his duty. Other cases in which a parent was held to be under a duty of care include Anderson v Smith (1990) 101 FLR 34 (S Ct NT) (a grandmother held liable for failing to shut a door securely and thus allowing a child to gain access to a swimming pool) and McCallion v Dodd  NZLR 710 (a father having the care and control of a child at night while walking along a road owed a duty of care to the child).
For these reasons I think the better view is that Reverend Hoffmann owed the Plaintiff a duty to take reasonable care to protect her from the foreseeable risk of injury arising while she was in Reverend Hoffmann’s physical care and control. That duty was not limited to taking reasonable care not to trip or fall on the staircase in a manner that might cause injury to the Plaintiff, but included a duty to take reasonable care not to trip or fall on the staircase so as to create a risk of injury to the Plaintiff. It is, however, not necessary to express a concluded opinion on the existence of the duty. As I shall explain, even if Reverend Hoffmann owed a duty of care to the Plaintiff, she did not breach that duty.
Breach of Duty
The existence of a duty of care is one thing. Breach of the duty is another. The materialisation of a risk against which Reverend Hoffmann was obliged to take reasonable precautions does not establish that she breached her duty to the Plaintiff. That question turns on whether Reverend Hoffmann failed to exercise reasonable care for the safety of the Plaintiff and whether the Plaintiff can show that the requirements of s 5B of the CL Act have been satisfied.
The primary judge made no reference to s 5B of the CL Act when finding that Reverend Hoffmann had breached her duty of care to the Plaintiff, although he did refer to the section when addressing the liability of Spicer and Mr Rowe for the Plaintiff’s injuries. The absence of any reference to s 5B in connection with the Plaintiff’s claim against Reverend Hoffmann does not necessarily constitute an error, provided that the primary Judge considered the matters that s 5B requires to be addressed and determined: Sibraa v Brown  NSWCA 328, at , , per Campbell JA, with whom Hoeben JA and Tobias AJA agreed, following Laresu Pty Ltd v Clark  NSWCA 180, at , per Macfarlan JA, with whom Tobias JA and Handley AJA agreed. The difficulty with the primary Judge’s reasoning is that there is nothing to indicate that his Honour did consider all the matters he was required to take into account. In substance, he simply recorded his conclusion that Reverend Hoffmann had failed to take reasonable care in the circumstances, having regard particularly to where she walked on the staircase and the absence of reasonable illumination.
Section 5B(2)(d) of the CL Act required the primary Judge, when determining whether Reverend Hoffmann should have taken the relevant precautions, to consider among other things, the social utility of the activity that created the risk of harm. That consideration was of particular importance since the accident occurred while Reverend Hoffmann was rendering assistance in a domestic setting, both to the Plaintiff and to the Plaintiff’s mother, Ms Hoffmann.
The conduct that created the risk of harm to the Plaintiff was Reverend Hoffmann’s act in taking physical custody and control of the infant from Ms Hoffmann. Reverend Hoffmann acted as she did in order to provide temporary relief to Ms Hoffmann from the early morning burden of caring for an unsettled and perhaps distressed infant. Reverend Hoffmann’s decision to proceed down the staircase while carrying the Plaintiff was in furtherance of that purpose. Domestic assistance of this kind has a very high social utility: it goes to the very heart of what family members do for each other. Parliament has directed courts to consider this factor in making a normative judgment as to the precautions that a reasonable person in the position of Reverend Hoffmann should have taken against a foreseeable risk of harm.
The primary Judge did not undertake this task and thus did not take into account a factor to which he was bound by statute to give consideration. Since his Honour erred in this respect, it is necessary for this Court to reconsider the question of breach of duty by Reverend Hoffmann.
Reverend Hoffmann arrived at the holiday house about three days before the accident. Prior to the accident, she had descended the staircase on a number of occasions and had no difficulty in doing so. On those occasions she was apparently not carrying the infant and she walked towards the centre of the staircase.
When Reverend Hoffmann carried the Plaintiff downstairs, she was intent on descending the staircase safely, bearing in mind that she was carrying the Plaintiff. She did not have the option of descending on the closed side of the staircase while holding onto a handrail, since there was no handrail on that side. She proceeded slowly down the staircase close to the newel post so that she could hang “on tight” to the upper banister with her left hand. As she descended, she was holding the Plaintiff vertically in front of her chest, using her right arm to do so.
As Reverend Hoffmann reached the newel post, she was conscious that she had to take particular care. She was also conscious that the upper balustrade finished at the newel post. She released her (left hand) grip from the handrail as she approached the newel post and, as the primary Judge found, reached for the lower handrail. At that point she stumbled.
Reverend Hoffmann said that she had been surprised when she reached for the lower handrail because she was expecting it to continue “on the same level”. Her evidence was consistent with the positioning of the upper and lower portions of the balustrade: the top of the upper balustrade intersected with the newel post at a point about 30-50 mm from the top of the post, while the top of the lower portion of the balustrade intersected with the post at a point some 300 mm lower. Reverend Hoffmann accepted that she would have had to lean forward as she attempted to locate the lower handrail and that it was “possible” that the act of leaning forward had contributed to her fall. The primary Judge found (at ) that when Reverend Hoffmann began to stumble she reached for and grasped the lower balustrade, but this action did not prevent the fall.
A defendant may be found to be negligent even if he or she acts in good faith and takes precautions to guard against the relevant risk of harm (for example, if the defendant, exercising reasonable care, should have realised that the precautions would be ineffective). In this case, however, Reverend Hoffmann not only appreciated that there was a risk of a fall while she carried the Plaintiff, but she took sensible and appropriate precautions to guard against the risk of such a fall on the staircase. She decided that the best protection was to grip firmly the only available support: the balustrade. In order to take that safety precaution, she had to negotiate the turn in the staircase with her feet close to the newel post on the narrowest part of the winders.
In my view, it verges on the fanciful to suggest that Reverend Hoffmann breached any duty of care she owed to the Plaintiff because she elected to descend the staircase in this manner. She was assisting her family in a typically fraught domestic situation involving a restless infant. She was conscious of the need to proceed safely. Had she descended the staircase towards the centre she would either have had to forego the safety of the balustrade or have stretched in order to reach the balustrade. Either course would have involved its own dangers, although not the one that in fact materialised. She made a reasonable decision in the circumstances; it certainly cannot be characterised as a failure to take reasonable precautions for the protection of the Plaintiff.
For the same reason, the criticism that she placed her feet on the narrowest section of the winders lacks substance. She did so in order to obtain support from the balustrade. Her own mode of descent was very similar to Ms Hoffmann’s description of her practice when carrying the Plaintiff. There was no want of reasonable care in Reverend Hoffmann’s placing her feet on the narrow part of the winders.
The Plaintiff’s alternative contention was that Reverend Hoffmann was negligent because she did not attempt to grasp the newel post as she made the transition from grasping the upper balustrade to grasping the lower balustrade. The Plaintiff does not suggest that Reverend Hoffmann was negligent because she assumed that the lower balustrade would be placed in a higher position than it was. She was proceeding carefully, moving to the next level at which she could secure support from the lower balustrade for her descent. While this involved a period of “grip release”, his Honour found (at ) that grasping the newel post while descending would also have involved a period of grip release. This was so because Reverend Hoffmann would have had to move her hand from the newel post in order to transfer her grip to the lower balustrade. Moreover, if she had grasped the newel post, she would have had to grip a rectangular post configured differently to the balustrade, a manoeuvre that may have created its own difficulties bearing in mind that she was carrying an infant.
Reverend Hoffmann did not act unreasonably by transferring her grip from the upper to the lower balustrade as she did. It was unfortunate that her expectation as to the height of the lower balustrade was not met, but that was a product of the design of the balustrade. Her failure to grasp the newel post in the course of the manoeuvre was, at the very highest, a small error of judgment. Having regard to the care Reverend Hoffmann was exercising to minimise the risk of harm to the Plaintiff, the failure to grasp the newel post was not negligent.
The primary Judge identified (at ) the absence of reasonable illumination as an element in Reverend Hoffmann’s breach of duty. His Honour must have meant that Reverend Hoffmann had been negligent because she had failed to turn on the lights before descending the staircase. In my view, this finding did not adequately take account of the circumstances in which Reverend Hoffmann found herself.
As the primary Judge acknowledged (at ), it is not uncommon for carers of infants not to turn on lights in order to avoid disturbing other people who are sleeping. Reverend Hoffmann did not recall having previously turned on the staircase light and said that she was not conscious of the location of the switches. In any event, she took the precaution before descending the staircase of asking Ms Hoffmann to leave the bedside light on in the office. Reverend Hoffmann agreed that the light on the staircase was very poor, but said that the illumination was sufficient for her to see the outline of the steps and that she adjudged the light to be sufficient. His Honour cast no doubt on this evidence.
The evidence rises no higher than suggesting that, in retrospect, it may have been better had Reverend Hoffmann ascertained where the switch was and turned on the light. But she appreciated that illumination was needed and, to that end, asked for the bedside light to remain on. The light was sufficient to enable her to see the outline of the steps even if she could not see them clearly. This was not an unreasonable response to Reverend Hoffmann’s situation, which required her to take a crying infant down the staircase.
In my opinion, the attempt to attribute a want of reasonable care to Reverend Hoffmann essentially reflects a search for measures that, in retrospect, might have avoided the particular accident that occurred. I do not think that the Plaintiff has shown that Reverend Hoffmann failed to exercise reasonable care for the Plaintiff’s safety. Nor has the Plaintiff shown, for the purposes of s 5B of the CL Act, that a reasonable person in Reverend Hoffmann’s position would have taken the precautions identified by the primary Judge and the Plaintiff. The finding of negligence cannot stand.
One of the criticisms made by Reverend Hoffmann of the primary judge’s reasoning is that he did not address the question of causation, on which the Plaintiff bore the onus of proof: CL Act, s 5E. Since I have concluded that Reverend Hoffmann did not breach any duty of care she owed to the Plaintiff, it is not necessary to consider the question in this judgment. However, one point should be made.
Had the primary Judge addressed the issue of causation, he would have had to determine, among other matters, whether Reverend Hoffmann’s failure to turn on the lights was “a necessary condition of the occurrence of the harm” (s 5D(1)(a)). It is difficult to see how a finding to that effect could be made. The “proximate cause” of the fall was the positioning of Reverend Hoffmann’s foot (at ) on the top winder close to the newel post where the step was too narrow to provide substantial support, coupled with the forward movement of her body. At the time of the fall, Reverend Hoffmann was concentrating on the balustrade, not on the steps. On the findings of the primary Judge, the fall does not appear to have been the result of the poor illumination. It was not put to Reverend Hoffmann, for example, that the poor lighting caused her to fail in her initial efforts to grasp the lower balustrade. Thus, to the extent that any finding of negligence were to rest on Reverend Hoffmann’s failure to turn on the staircase light, I do not think that the Plaintiff could establish that any such failure was a necessary condition of the occurrence of the harm.
It is not necessary to pursue the question of causation any further.
David Cormack – Brisbane Barrister