To be or not to be a good Samaritan?
The recent decision in Capar v SPG Investments Pty Ltd t/a Lidcombe Power Centre & Ors. (No. 5) [2019] NSWSC 507 reaffirmed that an occupier does not have a duty to prevent injury to a plaintiff from the unforeseeable and unpredictable criminal behaviour of a third party.
Mr Capar was working as a security guard at Lidcombe Power Centre when he observed an intruder enter the premises on CCTV. Despite his training to the contrary, Capar decided to investigate. He approached the intruder who was armed with an axe. The intruder threatened Capar and said to him “I’m going to kill you.” Capar alleged that SPG Investments, as occupier, owed him a duty of care. Such duty requiring SPG Investments to take reasonable steps to prevent Capar from suffering injury caused by the criminal conduct of the intruder. Capar further alleged that such duty was breached causing injuries including chronic PTSD and depression resulting in loss and damage.
This issue was also dealt with in Modbury Triangle Shopping Centre Pty Limited v Anzil Anor (2000) 176 ALR 411, where the plaintiff, the store owner in a shopping centre, sued the shopping centre (as the occupier) following an assault that occurred in car park when the lighting was turned off. The plaintiff argued that had the lighting been turned on, it could have prevented the criminal act of the third party. The court held that the occupier had a duty of care in relation to the physical state and condition of the car park, but the occupier did not have control over the behaviour of the third party whose actions were responsible for the assault. While the risk may have been foreseeable, it was not sufficient to impose a duty of care to prevent harm from the criminal behaviour of a third party on the occupier of the land. While the duty to take reasonable care to protect another from criminal behaviour may exist in some special relationships, such as employee and employer, school and pupil and bailor and bailee, this goes against the fundamental principle that the common law does not impose liability for omissions.
However, even if a special relationship had existed between the parties, no extent of foreseeability or predictability of the criminal acts of a third party could override the general rule that one person has no legal duty to rescue another, other than in very restricted circumstances. Modbury held that being an occupier of land is not a circumstance that gives rise to this duty. In Capar, the occupier argued that occupiers do not owe a duty of care in relation to the criminal conduct of a third party. The court held that the occupier did not owe the plaintiff a duty of care because it would be contrary to longstanding authority that in such relationships, the duty of care does not extend to the criminal conduct of third parties. This principle dates back to Lord Goff of Chieveley in Smith v Littlewoods Ltd [1987] AC 241, 270, who stated that it is “well recognised that there is no general duty of care to prevent third parties from causing such damage.”
This issue was also considered in Ashrafi Persian Trading Co Pty Ltd t/as Roslyn Gardens Motor Inn v Ashrafinia [2001] NSWCA 243. The respondent was assaulted by an unknown third party while staying in a motel occupied by the appellant. The court upheld the decision in Modbury that “it would be contrary to authority and principle to find the defendant’s duty of care extended to criminal behaviour of a third party.”
The court also dealt with the duty of the plaintiff’s employer. Unlike the occupier, the court found that the employer did have a duty to prevent the plaintiff from being injured by the conduct of an intruder who came onto the premises. However, the employer provided the plaintiff with adequate training and instructions, thus discharging the employers duty.
The court did not waiver from these well-established principles in the decision of Capar, where the intruder’s entry was unauthorised and unexpected and the occupier did not have control over the criminal acts of the intruder. Whether or not an intruder entering the premises was foreseeable, as the plaintiff acted contrary to his training, the occupier could not have been liable for the plaintiff’s injuries and no special relationship should be found to exist to override the general rule.
This decision has confirmed that occupiers will only be liable in situations where they have knowledge of and control over the criminal activity.
This article was written by Rebecca Hosking, Partner and Claudia Chaffey, Graduate-at-Law.