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Business Law : Negligence Of Modbury

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Business Law : Negligence Of Modbury

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Modbury Triangle Shopping Centre Pty Ltd (‘Modbury’) was the landlord of the shopping centre. Anzil was hired in a video shop which was rented in the shopping centre. The video shop faces the car parking area of the shopping centre. After closing of video shop on 18 July 1993, at 10.30 pm Anzil was attacked by unknown persons while going towards car which was parked in the parking area of the shopping centre. Anzil was severely injured.
Anzil filed a case against Modbury for the damages caused due to the negligence of Modbury. The trial judge states- a) Modbury carry a reasonable duty of care and safety for its customer and tenants because of being landlord. b) Modbury infringes the duty of not putting on the lights of the parking area at the time Anzil left the store. c) Case was framed against Modbury because of direct connection between rescind of duty of due care of keeping the lights on and the incidence [1](Scott, 2010). Modbury made an appeal in High court against the trial judge statement about the existence of reasonable duty of care.
The plaintiff claimed against Modbury in court for the harm caused to him. But, the court stated that the case was not about any harm cause due to the physical location of the car parking of shopping mall like banging of car because of absence of light. But the harm caused to plaintiff is because of the actions of the unknown person i.e. third party. The case is about the liability of the third party i.e. criminals who severely injured the plaintiff [2](Weinrib, 2012).  The majority in court states that the duty of landlord of shopping centre as an occupier do not include taking preventive measures for plaintiff to stop the criminal actions.
In order to find out the reasonable duty of care by defendant Proximity test is used. This test indicates the bodily proximity, situational proximity and casual proximity. Bodily proximity indicates the closeness in time and space in relation to plaintiff’s property or himself. Situational proximity shows the relationship between both plaintiff and defendant. Casual proximity shows the nearness between the relationships [3](Cane, 2010). It is also argued by defendant that the proximity test indicates that the damage caused to the plaintiff was reasonably predictable or not, the relationship between both the parties i.e. plaintiff and defendant was close or not and whether to imply reasonable duty of care will be right or not.
It is identified that the occupier of property does not carry a reasonable duty of care against the physical damage caused to plaintiff because of the unlawful activities conducted by the third party on the same property. It is also analysed that the occupier i.e. Modbury has no authority to restrict the activities of the criminals. The simple law is that one individual is not obliged to control the action of the other individual and neither can he be held liable for the action of the other individual. The reasonable duty of care of defendant does not include sensible steps so that the action of third party can be stopped [4](Hayward, 2013). The majority justified that the defendant cannot be held liable for the behaviour of third party on which the defendant had no authority.
The court stated that that the actions of third party on the occupier’s property are not covered under reasonable duty of care of defendant. But, in case of any relationship existence between the parties the liability of defendant extends to stop the unlawful actions of the third party. The court states that this case will be considered exceptional if the parties share a close bonding then the duty of reasonable care will be implied upon defendant in order to take preventive measures to stop the predictable risk of damage [5](Barnett and Harder, 2014). The duty of reasonable care implies if the defendant can control the harm caused to the plaintiff and if the plaintiff is reliant on the defendant.
But, in this case the defendant argued that he cannot restrain the third party from unlawful activity as he was unaware of this activity. The unlawful activity carried out by the third party was not identifiable and hence the defendant cannot be held liable for the harm cause to the plaintiff in parking area of the shopping centre. The defendant cannot be held liable because the damage caused to the plaintiff is not directly related to the defendant but it directly related with the unlawful actions of the third party [6](Witting, 2015). The defendant has no liability against plaintiff and also defendant has no contribution towards plaintiff for the damage cause to him.
The defendant held the exact position held by any other member of the society and shares no contribution towards the damages caused to the plaintiff in the parking area of the shopping centre. Imposing the liability on defendant would lead to move the crime of the third party in favour of defendant which is not justice [7](Latimer, 2012). It will also lead to shift of financial aid as a result of unlawful activity carried out by third party to the defendant who does not have any role behind the damage caused to the plaintiff.
Modbury as an defendant carry a reasonable duty of care towards the plaintiff, Anzil  but the reasonable duty of care cannot be extended for carrying out corrective steps in order to stop the unlawful activity carried out by the unidentified individuals due to which plaintiff got harmed. In addition to this Modbury fails to keep the light on of the parking area of the shopping centre helps the third party in carrying out the unlawful activity. But, it is same as the decision taken by Anzil to park car over there. The direct relation of cause of injury is the criminal activity carried out by three unidentified individuals [8](Dyson et al., 2015). So, the court held that the Modbury cannot be held liable for the actions of the third party and do not carry any financial liability against plaintiff.
Barnett, K., & Harder, S. (2014). Remedies in Australian Private Law. UK: Cambridge University Press.
Cane, P. (2010). Searching for United States Tort Law in the Antipodes.Pepp. L. Rev., 38, 257.
Dyson, A., Goudkamp, J., & Wilmot-Smith, F. (2015). Defences in Tort. UK: Bloomsbury Publishing.
Hayward, B. (2013). Tort, cinema and violent crime: An Australian perspective. Alternative LJ, 38, 255.
Latimer, P. (2012). Australian Business Law. Sydney: CCH Australia Limited.                              
Pentony, B., Graw, S., Lennard, J., & Parker, D. (2011). Understanding business law. UK: LexisNexis Butterworths.
Scott, R. (2010). The Duty of Care Owed by Police to a Person at Risk of Suicide: Stuart v Kirkland-Veenstra [2009] HCA 15 (22 April 2009)(2009) 254 ALR 432; 83 ALJR 623, French CJ, Gummow, Hayne, Heydon, Crennan and Kiefel JJ. Psychiatry, Psychology and Law, 17(1), 1-24.
Weinrib, E. J. (2012). Corrective justice. USA: Oxford University Press.
Witting, C. (2015). Street on Torts. , USA: Oxford University Press.

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