MEMORANDUM

TO: Jo Hintz

FROM: 13615374

DATE: 13 October 2020

RE: Advice on whether a grandparent owes a duty of care to her grandson

Brief Answer

It is likely that the grandmother owes a duty of care to her boisterous grandson and thus can be accused of negligence in case her grandson sustains injuries. Like in Hoffman v Boland case, the grandmother owed a duty of care to the child and had a duty to take reasonable care in protecting her from any foreseeable risk of injury that would arise while the child was under her care and control.[1]

Relevant Facts

The client, who is the grandmother, has been regularly taking care of her two-year-old grandson while the parents of the child are out working. Since the grandparent has personal proximity to her grandson, she takes care of him voluntarily.

The client wants advice on whether she owes any duty of care to her grandson. She wants to know if she can be held liable if her grandson sustains any injuries under her care.

Issue

Can the grandmother be accused of negligence when the grandson is injured under her care?

Does she owe the grandson duty of care?

Rule of law

Legislations:

  1. The Civil Liability Act 2003 (Qld)

Cases

  1. Hoffman v Boland
  2. Tweed Shire Council v Carly Eden Howard
  3. Anderson v Smith
  4. Hahn v Conley
  5. Smith v Leurs
  6. Donoghue v Stevenson

Analysis

The grandmother can owe a duty of care if she has not exercised reasonable care.[2]The general rule is that the parent does not owe a child a duty of care by merely being a parent. However, there are circumstances where such duty may arise. Those circumstances include but are not limited:  a parent/grandparent may owe of duty of care if the child is under their reasonable care and control.[3] The law does not impose a duty of care on the parents because of the sanctity of the parent-child relationship.  However, parents may be held liable for the actions of their child just like strangers.[4] The test for determining whether a party has duty is that of reasonability. What a reason person would have done in his/her circumstances.

It is reasonably foreseeable that harm can be suffered by the grandchild while under the care of the grandparent. In most cases, boisterous children are known to be noisy and often misbehave, in light of this, they are likely to engage in activities that could cause injury to them. The onus is on the grandparent to take care of the grandson. Therefore, any wrongdoing or carelessness of the grandmother, for instance leaving the grandson on his own, is likely to injure the grandson. In the Anderson v Smith case, the grandmother was negligent because she failed to close a door that could have prevented the child from having sustained injuries. The child was under the grandparents care.[5]  Also, the Tweed Shire Council v Carly Eden Howarth case denotes that a parent becomes liable when a child is led into harm by their actions.[6] In the grandmother’s case, if she exposes her grandson to harm and he encounters injury, then the grandmother will be held liable for negligence as she owes a duty of care.

The grandmother owes a duty of care to his grandchild not only because she is in locos parentis to the child but also because she acts as a temporary guardian as well as a carer. Hoffman v Boland case states that it is common to impose the duty of care on a person who acts as a carer of a child when the carer fully accepts the responsibility for the safety of that child. Thus, the grandmother owes the child a duty to take reasonable care to protect him from any foreseeable risk of injury that can arise while he is in her control and care. Since the grandparent assumes all responsibilities of the parents, then she had the duty (as a parent) to control the child. In Smith v Leurs case, the parent was held liable for failing to supervise their child using a slingshot outside of the home.[7] There existed a duty of parents ensuring there was control over the child. In the grandmother’s case, she has a duty of controlling her grandchild.

Just like in the case of Hahn v Conley a duty of care to a child is said to be an obligation that requires taking reasonable care in the situation at hand.[8] When the grandparent foresees harm that a child could suffer from and fails to act accordingly, this is regarded as culpable negligence in breach of her duty. Similarly, the grandmother breached her care of duty of taking reasonable care for her grandson. The grandson’s injuries were caused by the grandmother due to breach of duty of care.

Basically, the grandmother’s case shows an act of negligence since all elements of negligence are present; duty of care, breach of duty, cause in fact, the proximate cause, and harm. The grandmother owes a duty of care as she acted as the carer or assumed all responsibilities of a parent while the grandson’s parents were away. The breach of duty is seen if the grandmother fails to control the grandson. Causation is seen because the failure of the grandmother to exercise control of her grandchild or failing to take care of her grandson caused him injuries while under her care. Proximate cause is evident based on the actions of the grandmother (not taking care of the grandchild or failing to remove obstacles that can cause harm). The actions of the grandmother caused harm or injury to the grandchild. Since all the elements are evident, the grandmother is legally liable for negligence.

Contributory negligence, which is a partial defense, is the mechanism that could be used for reducing the eventual award of damages/injury caused by the grandmother to the grandchild. However, this will only apply if the child is more than five years old. This is because, in Australian courts, a child below five years cannot be accused of contributory negligence.[9]

Conclusion

The grandmother can owe a duty of care to the grandchild to protect him/ her from foreseeable risk and injury. When the grandchild is under the control and physical care of the grandparent, the grandmother should take reasonable steps to ensure the child’s safety. Further, the grandmother can owe a duty of care for the child’s actions to a third party because a two-year-old child is believed to be under the control and care of her parents/grandparents.

Bibliography

  1. Articles/Books/Reports

Ashley, McDonald, ‘Are We Family? And if so, Can I Still Sue You?’ (2000) 7(1) Murdoch University Electronic Journal of Law. 

David Owen, ‘The Five Elements of Negligence’ (2007) 35(4) Hofstra Law Review

Douglas R, Mullins Gr, and Grant S R, The Annotated Civil Liability Act 2003 (Qld) (LexisNexus Butterworths, 4th ed, 2016).

  • Cases

Anderson v Smith [1990] NTSC 43; 1990 101 FLR 34.

Hahn v Conley [1971] 126 CLR 276.

Hoffmann v Boland [2013] NSWCA 158.

Donoghue v Stevenson [1932] AC 562.

Smith v Leurs [1945] HCA 27; 70 CLR 256

Tweed Shire Council v Carly Eden Howarth (by her Tutor Trent Howarth [2009] NSWCA 103.

  • Legislation

Civil Liability Act 2003 (Qld).

Civil Liability Act (CLA) 2002.

  • Others

D Miller, G Creighton, D Kaminskas,’ A user’s guide to the Civil Liability Act 2002 (NSW)‘ (23 January 2013) <https://www.cbp.com.au/insights/insights/2013/january/a-user-s-guide-to-the-civil-liability-act-2002-(ns#:~:text=The%20Civil%20Liability%20Act%20was,is%20alleged%20against%20a%20defendant>

G Malouf, What is the Civil Liability Act? (G 1 November 2016)

< https://www.gerardmaloufpartners.com.au/publications/what-is-the-civil-liability-act/>

F Dahlstrom, ‘Contributory Negligence’ < https://www.gotocourt.com.au/civil-law/contributory-negligence/>


[1] Hoffmann v Boland [2013] NSWCA 158.

[2] Ibid

[3] Hoffman v Boland (2013) NSWCA 158

[4] Hahn v Conley (1971) HCA 56; 126; (1972) ALR 247

[5] Anderson v Smith [1990] NTSC 43; 1990 101 FLR 34.

[6] Tweed Shire Council v Carly Eden Howarth (by her Tutor Trent Howarth [2009] NSWCA 103.

[7] Smith v Leurs [1945] HCA 27; 70 CLR 256.

[8] Hahn v Conley (1971] 126 CLR 276.

[9] F Dahlstrom, ‘Contributory Negligence’ < https://www.gotocourt.com.au/civil-law/contributory-negligence/>

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