TORTS – negligence – duty of care – whether an operator of a supermarket in a shopping centre owes a duty of care to users of a common area near the entrance of its premises in circumstances where a hazard is created by use of a product purchased from the vendor – whether the primary judge’s finding that an admission was made by an employee of the occupier was supported by evidence – whether, assuming a duty of care to exist, the supermarket operator breached its duty
I refer you to the Headnote and then the discussion on foreseeability.
The respondent (Plaintiff) slipped on soapy residue while walking in the common area of a shopping centre, adjacent to the appellant’s supermarket. The residue was deposited by a child blowing bubbles from a bottle of soapy liquid sold by the supermarket to her parents. An employee of Woolworths was found to have opened the bottle when the parents were at the checkout counter.
The primary Judge found that the appellant owed a duty to the Plaintiff to take reasonable care to prevent a danger being created by reason of the use of products purchased at the supermarket. His Honour also found that the appellant breached its duty of care by failing to warn the parents against allowing the child to use the soapy liquid to blow bubbles in the common area.
The appellant challenged the primary Judge’s finding that one of its employees made an admission shortly after the respondent’s fall, and in the respondent’s hearing, that the bottle had been opened by the appellant’s staff at the checkout counter. The appellant also challenged the primary Judge’s findings that it was under a duty to take reasonable care for the safety of people walking along the common area adjacent to its premises, and that it had breached that duty.
The Court held:
1 The primary Judge’s finding that an admission was made by an employee of the appellant, but that it was made by a different employee to that identified by the respondent, was not supported by the evidence: -, -.
2 The failure of the appellant to call the employee that, according to the primary Judge, made the admission did not attract rule in Jones v Dunkel because that rule only applies where a party is required to explain or contradict something. The respondent’s evidence was that the admission was made by a different employee: .
Jones v Dunkel  HCA 8; 101 CLR 298; Schellenberg v Tunnel Holdings Pty Ltd  HCA 18; 200 CLR 121; Kuhl v Zurich Financial Services Australia Ltd  HCA 11; 243 CLR 361; applied.
3 The duty of care formulated by the primary Judge had no basis in principle or policy. The duty identified conflated the reasonable foreseeability of harm with the existence of a duty and would impose an intolerable burden of potential liability on owners and occupiers of retail premises: -.
Modbury Triangle Shopping Centre Pty Ltd v Anzil  HCA 61; 205 CLR 254; Sullivan v Moody  HCA 59; 207 CLR 562; Tame v New South Wales  HCA 35; 211 CLR 317; Caltex Refineries (Qld) Pty Ltd v Stavar  NSWCA 258; 75 NSWLR 649; Sydney Water Corporation v Turano  HCA 42; 239 CLR 51; Lesandu Blacktown Pty Ltd v Gonzalez  NSWCA 8; applied.
4 If a duty of care existed, the primary Judge erred in finding that the appellant breached its duty: -
(Sackville AJA, Basten and Ward JJA not deciding)
45 Four points should be made at the outset. The first is that, as Hayne J said in Modbury Triangle Shopping Centre Pty Ltd v Anzil  HCA 61; 205 CLR 254 at , “[f]oresight of harm is not sufficient to show that a duty of care exists”. Reasonable foreseeability of the class of injury sustained by the plaintiff is an essential condition of a legal obligation to take care for the benefit of another: Sydney Water Corporation v Turano  HCA 42; 239 CLR 51 at  (per curiam). But the fact that the risk of harm suffered by the plaintiff was foreseeable, in the sense that it was real and not far-fetched, is not sufficient to impose a duty on another person to take reasonable care to prevent the harm occurring: Modbury at  (Gleeson CJ).
46 Secondly, the requirement of reasonable foreseeability involves more than determining whether the risk of harm was a realistic possibility. As was said in Sydney Water Corporation v Turano at , the requirement must be understood and applied:
“with due regard to the consideration that, in the context of the issue as to duty of care, it is bound up with the question of whether it is reasonable to require a person to have in contemplation the risk of injury that has eventuated.”
If it were otherwise, the law would impose on persons “an intolerable burden of potential liability, and constrain their freedom of action in a gross manner”: Sullivan v Moody  HCA 59; 207 CLR 562 at  (per curiam).
47 Thirdly, as has often been pointed out, there is no difficulty in deciding that a duty of care exists in familiar relationships such as those between road users or between employee and employer. The difficulty arises in new situations or in circumstances which take the duty of care outside the usual characteristics of the particular relationship, as in Modbury and Lesandu Blacktown Pty Ltd v Gonzalez  NSWCA 8 (both cases involving occupiers). In novel situations or circumstances, there is no single touchstone that determines whether a duty of care should be imposed.
48In Caltex Refineries (Qld) Pty Ltd v Stavar  NSWCA 258; 75 NSWLR 649, Allsop P stated (at ) that if a posited duty is a novel one:
“the proper approach is to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by references to the ‘salient features’ or factors affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury.”
His Honour’s non-exhaustive list of “salient features” includes the degree and nature of control able to be exercised by the defendant to prevent harm; the nature or degree of the hazard or danger liable to be caused by the defendant’s conduct; any potential indeterminacy of liability; and the nature and consequence of any action that can be taken to avoid the harm to the plaintiff.
49 Fourthly, in Lesandu Blacktown v Gonzalez, Basten JA pointed out (at -) that there is a course to be steered between focussing too closely on the particular events which led to the plaintiff’s injury and analysing the question of a duty of care without regard to the harm suffered and the alleged breach of duty: see also Modbury at - (Hayne J). The question may not be whether a defendant, in this case the occupier of a supermarket, can ever owe a duty of care to prevent harm to a person who is not on the supermarket premises, but the extent of any duty that might be owed to such a person: Modbury at  (Hayne J).
David Cormack – Brisbane Barrister & Mediator