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Law Question





Law Question

Part Two: Critique of Bainbridge v James

Case summary

The case was brought forward by the appellant, an employee at a shopping center, while playing the role of Father Christmas, was attacked by a teenager on one occasion while going back to the changing room after one of his shifts. The appellant sued his employers and the shopping center owners because they owed him a duty of care to protect him from criminal acts by third parties. The trial judge awarded damages to the employee against the employers but not against the owners of the shopping center. The appellant appealed, claiming that the dismissal is overturned and that the damages awarded by the trial court were inadequate. The appellate court dismissed the appeal with the appellant ordered to pay the first and second respondent costs.


The broader implications that arise from the decision, in this case, are based on the claim against the second respondent, the shopping center owner. The court implied that when the owner of the premises and the employer are two different people, the owner cannot be liable for the employee because the employment agreement was between the employer and the employee. The employer is the one who owes the duty of care to the employee to protect him of any foreseeable danger that could arise in their employment. The onus of proof lies on the appellant to establish that there was a foreseeable risk that required his employers and end owners of the shopping center to owe him a duty of care. The fact that the employee had worked there on several nights and had not been attacked in any of them indicated that there was no foreseeable danger to warrant the respondents to owe him a duty of care.

Responsibility and safety, according to the case.

From the outcome of the case, it is evident that the responsibility to ensure the employee’s safety while in the course of employment lies on the employer. The employer has to inform the employee of all the aspects of their security upon signing the employment agreement. The employer is under a legal obligation to inform the employee of any security concerns, the availability of security guards, and any foreseeable risks. The risk to the safety of the appellant, in this case, was established to be farfetched. As much as the employer was responsible for ensuring that he is safe at the workplace, there was no foreseeable risk as the previous days in which he had worked in the shopping center, and he had not been attacked in any way. No one could have anticipated the risk to his safety in this case. The court established that the employee had no evidence to show that the risk was not reasonably foreseeable for the employer to owe him a duty of care.1

The expectations of the community in such a case are that the employers ensure the safety of the employees even when the risk is not foreseeable. The court’s decision implies that without foreseeable risk, the employer cannot be held liable for the employee’s security. However, the law provides that the employee should exercise reasonable care in the course of performing their duties in employment. This is because it is impossible for the employer to guarantee their employees’ safety at all times, especially when the risk to their safety cannot be foreseen.

Part 3: Advice using Judicial Decisions

Pez v. Daisy Bay Detour (Dexter)

Relying on the decision in Cole v South Tweed Heads Rugby League Football Club, the appellant would argue that the court should hold the defendant to have owed the duty of care to Pez from the moment Dexter noticed her stumbling to the exit.2 In her state in which she was intoxicated, the court would argue that it was reasonably foreseeable that something bad could happen if she walked out of the bar in that state. Daisy Bay Detour (Dexter) acted in breach of the duty of care to Pez by failing to take reasonable care for the purpose of protecting her from harm. The reasonable care could have been exercised by offering her advice, like not to leave the pub alone. Also, since her sister Bella was preoccupied with the events that were taking place that night, and Dexter obviously noticed, he owed a duty of care to inform Bella of her sister’s intoxicated nature and advice her not to let her walk out alone. Bella was not aware of the intoxication level of her sister. Thus, the pub owed Pez a duty of care to protect her by informing her sister and advising her not to wait outside in her state. Pez can seek to recover damages from the negligence on the part of the pub. However, the pub may contend that the courts should not find a duty of care on the part of Dexter because relying on the causation doctrine, Pez voluntarily engaged in an activity that contributed to their injury destroys the causal link that exists between the injury and breach of duty even though the breach of duty by the pub contributed to the injury.

Priyanka v. Dia

Concerning the disabilities sustained by Priyanka as a result of the accident, the argument by Priyanka would be that Dia owed her a duty of care because, being pregnant, she was not supposed to be smoking. Also, she was not supposed to put herself in a position where there was a reasonably foreseeable risk to her safety by riding a scooter and smoking in from of a pub where she was likely to encounter reckless people who are intoxicated. Dia intentionally put herself in the line of danger, causing harm to Priyanka. With a pregnancy of 7 months, Dia was expected to exercise reasonable care by avoiding situations that could put her child’s welfare in danger. Smoking marijuana and riding a scooter was clearly not a way of protecting the baby from harm. The court could rely on the decision in Lynch v Lynch (1991) by establishing that the fact that Dia was smoking marijuana and riding the scooter is equated to driving recklessly because she was under the influence of marijuana.3 Her actions contributed to the injury that Priyanka suffered. As such, she is liable for the damage that was suffered by Priyanka as a result of the accident. The actions of Dia on that evening were negligent, contributing to the disabilities that Priyanka was born with.

  1. Jones v. Dunkel(1959), 101 C.L.R. 298↩︎

  2. Cole v South Tweed Heads Rugby League Football Club (2004) 217 CLR469↩︎

  3. Lynch v Lynch (1991) 14 MVR 512 and Lynch v Lynch (by Her Tutor Lynch) (1991) 25

    NSWLR 411↩︎

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