Hoffman v Boland [2013] NSWCA 158

The New South Wales Court of Appeal has overturned a finding of liability against a grandmother who fell down a staircase while carrying her grandchild, causing injuries to the child. The Court however left open the question of whether there was a legally enforceable duty of care owed by parents or close relatives in such circumstances.

Sackville AJA, Basten and Barrett JA unanimously concluded that in the circumstances of this case there was no breach of duty by the Defendant grandmother however the Court was split on whether any legally enforceable duty of care existed at all.

Sackville AJA was of the view that there may have been a legally enforceable duty of care however Basten JA concluded that there was not. Barrett JA noted the difference of opinion between his peers however declined to break the deadlock on the subject as the Court’s ultimate finding that there was no breach (if in fact there had been an enforceable duty owed) meant that it would be immaterial to the outcome to answer this question.

The Decision at First Instance

At first instance, the injured child succeeded in establishing liability against her grandmother however failed in concurrent claims against the builder and designer of the staircase in question.

The Plaintiff had criticised the design and construction of the staircase however Hulme J of the New South Wales Supreme Court found that there was no breach of duty by the builder or designer of the stairs that was causative of the accident. This finding was upheld on appeal.

With regard to the actions of the grandmother however, His Honour concluded that he was not persuaded by arguments that parents and close relatives have no legal duty to exercise reasonable care when undertaking physical actions involving children and that the Defendant grandmother had failed to take reasonable care, resulting in a finding against her.

The trial judge’s finding regarding the grandmother’s breach was largely due to the fact that she decided not to turn on the lights before attempting to descend the stairs despite there being very little illumination of the staircase.

Sackville AJA

His Honour Sackville AJA reasoned that a critical feature of this case is that the Defendant grandmother took physical custody and control of the Plaintiff when she carried the child from the room in which she had been sleeping. His Honour noted that:

“Whenever an adult carries an infant there is a foreseeable risk that the infant could be harmed through misadventure, for example, if the adult falls (whether on a staircase or elsewhere) or causes the child to come into contact forcefully with a hard object.”

His Honour also noted however the competing consideration of the undesirability of the law intruding into the relationship between a parent or other family carer and a child, noting:

“The effect of imposing tortuous 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.”

Having regard to the existing case law, His Honour noted that there is no express parental immunity from civil liability and that each case must depend on its own circumstances. In the circumstances of this case, Sackville AJA stated that:

“…the better view is that [the Defendant grandmother] owed the Plaintiff a duty to take reasonable care to protect her from the foreseeable risk of injury arising while she was in [her] care and control.”

His Honour qualified this however by stating that it is not necessary to express a concluded opinion on the existence of a duty as even if such a duty exists, the Defendant did not breach that duty.

Regarding breach, in the circumstances, His Honour found that the Defendant not only appreciated the risk of a fall but also took sensible and appropriate precautions in descending the stairs to guard against the risk of a fall.

His Honour also found that the absence of lighting was not a causative factor in the fall and the failure to turn the lights on was therefore not a relevant consideration.

Basten JA

His Honour Basten JA agreed with Sackville JA’s finding that there was no breach of duty by the Defendant grandmother in the circumstances.

On the question of whether there was a duty owed in the circumstances however, His Honour preferred the view that there was no duty of care enforceable in tort. He stated:

“… a grandmother assisting a child’s mother by looking after her in the home, whilst the mother rested, owed no greater duty of care to the child than did the mother. The mother owed no duty enforceable by an action in tort in respect of her day-to-day care of her baby; the grandmother was in a similar position and it follows that the child’s claim against her should have failed on the basis that she owed no duty of care enforceable in tort.”

Barrett JA

His Honour Barrett JA agreed with both Sackville AJA and Basten JA that in the circumstances of the case, there was no breach of duty by the Defendant grandmother.

In light of this finding, His Honour therefore stated:

“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.”

Comment

It is clear that the New South Wales Court of Appeal was very reluctant to impose a duty of care on parents or carers of children which, in the Court’s view, would enable a child to sue a parent or carer who has attempted in good faith to carry out his or her responsibilities.

It would seem however that the facts of this case distinguish it from the type of situation that the Court was trying to avoid, which would result in allegations against gratuitous carers such as ‘failure to adequately supervise’ or ‘failure to prevent harm’.

This case was not based on moral duties of parents or guardians or even an attempt to establish what is reasonable supervision of children, but a question of whether the physical actions of a carer which resulted in injury to the child gave rise to an actionable breach of duty by the carer.

If the grandmother had negligently crashed a car injuring her infant passenger the law would unquestionably make a finding against the grandmother. The familial relationship in such circumstances is irrelevant. On this basis, why should negligence (if established) in falling over when descending a staircase while carrying a child not give rise to an actionable breach of duty?

The Court of Appeal’s decision was handed down on 6 June 2013 and at the time of writing is therefore still within time for further appeal to the High Court.

A copy of the decision can be found here.