Date: Sat, 29 Apr 2006 21:09:45 +1000

From: Harold Luntz

Subject: Liability for acts of others

My answers to Benjamin Zipursky's questions are as follows.

There has been speculation in Australia as to whether a psychiatrist might owe a duty to warn third parties threatened by a patient (a somewhat dated article is D Mendelson and G Mendelson, 'Tarasoff Down Under' (1991) J of Psychiatry & Law 33), but I know of no case that has so held. There have been some cases where medical practitioners have in particular circumstances been held to owe limited duties to sexual partners of patients infected with AIDS: BT v Oei [1999] NSWSC 1082 (5 November 1999) (duty did not extend to giving direct warning); Harvey v PD [2004] NSWCA 97; (2004) 59 NSWLR 639 (CA) (joint patients). The issue might have arisen, but did not, in Hunter Area Health Service v Presland [2005] NSWCA 33; (2005) 63 NSWLR 22 (CA) (claimant was person who was acquitted of murder on ground of insanity).

The leading case in Australia on (non-)liability of occupiers for criminal acts committed on their premises is Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254, criticised by J Dietrich, 'Liability in Negligence for Harm Resulting from Third Parties' Criminal Acts: Modbury Triangle Shopping Centre Pty Ltd v Anzil' (2001) 9 TLJ 152, which refers to many exceptions (see also my comment in 'Torts Turnaround Downunder' (2001) 1 OUCLJ 95). Cases that have followed Modbury include Ashrafi Persian Trading Co Pty Ltd v Ashrafinia [2001] NSWCA 243 (27 July 2001); [2002] Aust Torts Reps 81-636; and Proprietors of Strata Plan 17226 v Drakulic [2002] NSWCA 381; (2002) 55 NSWLR 659 (CA). Cases that have distinguished it include Club Italia (Geelong) Inc v Ritchie [2001] VSCA 180; (2001) 3 VR 447 (CA).

The (non-)liability of a prison authority for the criminal acts of an escaped prisoner is fully discussed in State of New South Wales v Godfrey [2004] NSWCA 113 (7 April 2004); (2004) Aust Torts Reports 81-741.

The issue of dram shop liability for persons injured after leaving the premises was left somewhat up in the air by Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29; (2004) 217 CLR 469 (two judges said no duty; two said no breach in circumstances, while doubting a duty; and two would have imposed liability): see G Orr and G Dale, 'Impaired Judgements? Alcohol Server Liability and "Personal Responsibility" after Cole v South Tweed Heads Rugby League Football Club Ltd' (2005) 13 TLJ 103. Publicans are frequently held liable for injuries caused by one patron to another on the premises; a recent illustration is Livermore v Crombie [2005] QSC 367 (8 December 2005).

There have been no cases of social host liability and it was doubted in Parissis v Bourke [2004] NSWCA 373 (23 November 2004) (parents not liable for not supervising party of 18-year-old son). It must be remembered that in Australia, there is little incentive for people injured by drunken drivers to seek others who may be liable because there are no limits on the liability of the driver under compulsory third party motor vehicle insurance and subrogation actions by these insurers are relatively rare.

Harold Luntz
Professorial Fellow
Law School
The University of Melbourne
Vic 3010

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