Is there an enforceable duty of care in familial relationships?
September 18, 2013
The New South Wales Court of Appeal has overturned a decision of the Supreme Court of New South Wales in which a grandmother had been held liable for injuries received by her grandchild whilst she was carrying the child downstairs. The Court was divided on whether the law should impose a duty of care on parents or those in the position of parents, but all agreed that in this case if such a duty existed, it had not been breached.
Molly Boland was a 5 ½ month old baby who sustained catastrophic injuries when she was being carried down stairs by her grandmother, Reverend Hoffman, in a holiday home inSmithsLake, NSW at about 5.30am on 25 January 2006. The home was owned by the baby’s great aunt and uncle. An extension had recently been added to the house which included a new staircase connecting some upstairs bedrooms to the downstairs living area. Reverend Hoffman awoke when she heard the infant crying, picked her up, took her to her daughter (the baby’s mother) who fed her. It was then agreed that the Reverend would take the baby downstairs to the living area to enable the baby’s mother to get some more sleep. The staircase was constructed of timber and contained two 90 degree winders (triangular shaped stairs) instead of a quarter landing. The winders were placed at the point of the newel post. The Reverend gave evidence that whilst the lighting was ‘poor’ she decided not to turn on the light as she felt there was sufficient light for her to descend safely, she could see the outline of the stairs, and she didn’t want to disturb other sleeping family members. She took the railing with her left hand but when she reached the newel post adjacent to the winders she had to let go of the handrail in order to place her hand on the next railing.
At this point her left foot tipped over the edge of the first winder and she stumbled down the stairs. As a result, the baby sustained a traumatic brain injury and is severely and permanently disabled.
The baby, by her tutor, commenced proceedings in the Supreme Court of NSW against her grandmother and also against the designer of the renovations, the manufacturer of the staircase, and the builder.
At first instance
There was a hearing on liability only and Justice Hulme found that the Reverend owed the baby a duty of care and breached this duty. His Honour held that the designer, the builder and the manufacturer had not breached their duties of care. His Honour found that the staircase could have been constructed without winders and the winders contributed to the fall. However, he noted that whilst most of the experts agreed that it was preferable to construct a quarter landing rather than winders at a turn in a staircase, he also noted the Building Code of Australia did not prohibit their use in domestic premises and they are not uncommon in homes. He therefore did not think that reasonable care on the part of the builder required avoidance of winders. He also noted the manufacturer had agreed that a continuous handrail (without a newel post) could have been constructed, at a small extra cost, but His Honour was satisfied that there was no failure on the part of the manufacturer of the stairs to design or build them as he did.
Reverend Hoffman and the Plaintiff baby sought leave to appeal.
The Court of Appeal comprising Justices Basten, Barrett and Sackville unanimously dismissed the baby’s appeal, and unanimously upheld the appeal by the Reverend that she had not breached any duty of care.
Their Honours noted that the Reverend appreciated there was a risk of a fall before starting to descend the stairs and took sensible and appropriate precautions against this risk. She gripped firmly on the handrail and as a result had to negotiate the turn in the staircase with her foot on the narrowest part of the winders and at the same time she needed to release her grip on the handrail at the newel post. Sackville AJA pointed out that the trial judge accepted her evidence that the lighting was good enough to see the outline of the stairs, and so her decision not to turn on the light was also reasonable.
However, the reasoning of their Honours regarding the existence of a legally enforceable duty of care differed.
Parental duty of care
Justice Basten reviewed the case law regarding the existence of a duty of care in familial relationships. His Honour noted that allowing a child to legally enforce parental obligations may on the one hand support the legal principles of coherence in the law. However, he observed that on the other hand, ‘it might be thought that to allow a child to bring proceedings in tort against a parent might be destructive of the underlying relationship which the law recognises, supports and seeks to maintain.’ He considered that the baby’s mother owed no duty enforceable by an action in tort in respect of her ordinary day-to-day care of her baby and as the grandmother was in a similar position, it follows that she was under no legally enforceable duty.
Justice Sackville said that ‘the better view’ is that the grandmother owed a duty of care to protect the baby from a foreseeable risk of injury while she was in her physical care and control, but he held it was not necessary to express a concluded opinion on the existence of the duty, because no duty was breached.
Justice Barrett said that it was not necessary for him to consider the existence of a duty of care but he observed that the courts should be slow to find a person is negligent while exercising a parental role in a family setting.
The question of whether in the particular circumstances of this case the law should impose a duty of care on the grandmother was one on which the Court could not agree, but it seems Justice Barrett, had he needed to decide the question, would have agreed with Justice Basten and concluded there was no such duty. There is, with respect, some force to Basten JA’s view that supportive family relationships (including grandparents trying to relieve exhausted parents from the demands of caring for infants) need to be supported and encouraged, rather than discouraged through fear of litigation.
*Hoffman v Boland  NSWCA 158
Authored by Annabelle Duffy, Partner, and Elizabeth Herbert, Senior Associate, Sydney.
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