SA Australian Law - Duty of Care to Person on Premises?

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Paolo 777

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17 February 2020
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Dear forum,

I would like an opinion on an incident that occurred at my workplace recently.

On the day in question, the temperature was about 37 deg C with high humidity of 70% to 80%. It is my understanding that under Australian law, occupiers of a premises automatically owe a duty of care to any person on their premises.

Context: My workplace is a rented building within a much larger campus that houses people with disability. My workplace is not connected to the larger organisation that owns the campus or the building that we rent. All names have been changed.

Alice is an elderly resident (about 75 years old) with a physical and learning disability. Alice uses a walking frame and is not very mobile. Alice came outside of our workplace with John (another young man with a learning disability) and two other people. Alice and John were with two musicians (without a disability) who were singing songs (unsolicited) outside of our building, under our verandah for the New Year.

After the two singers and John left, Alice was somehow left on her own under our verandah in the oppressive heat and humidity. It was about 37 degrees C and very high humidity (about 80%).

I was outside our building and Alice asked me, "Could you take me across the campus to xxxxx building?"


I went back into the building and let my supervisor know what Alice had asked me to do.

Supervisor called Alice’s house staff to come and pick her up rather than our staff take her to the other building.

30 mins later Alice is still sitting outside in the heat. It was oppressively hot and humid. I go outside and ask Alice, "Are you OK?" As a First Aid officer at work, I was concerned as Alice looked unwell and her appearance showed many of the symptoms of heat stress: Her face was flushed red and she looked clammy and sweaty.

Alice asked me, "Can I have some water?" I brought her a glass of water. Alice also asked me, Can I come inside your building until my staff come? It’s too hot for me out here.” (our building is air-conditioned)

We would not normally allow campus residents to come into our building, but as Alice didn’t look well and appeared to be suffering from heat stress I say, "Yes" and I bring her into our building with her walking frame. I call Alice’s staff again to come and collect her.

Later in the day my supervisor questioned me and was critical of my decision to bring Alice into the building. I replied that any reasonable person is not going to make Alice (an elderly person with a disability) sit outside in that kind of heat and humidity. I reiterated that Alice appeared to be in heat stress, she was red-faced, sweating and looked clammy.


My question is: If help was refused to Alice and she was left sitting outside in the heat and she afterwards suffered injury or death, would my workplace / or I face a legal inquiry, charges of negligence for refusing her assistance?

In a court of law would that refusal of help to Alice pass the "reasonable person test" or pass the test of "reasonable foreseeability of harm"?

Thank you and best regards,
 

Rod

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Hmm, looks very much like homework, discussing negligence.. and should be in the homework section.
 
Last edited:

Tim W

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We don't write your assigments for you here.

Perhaps show us a draft of something you've already done.
 

Paolo 777

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17 February 2020
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Hi thanks for your replies.

This is not an assignment. I am not a Law student. This is an actual real-life incident that occurred at my place of work recently (though I have changed the names of the people involved).

I was genuinely hoping to hear the perspective of someone who knows more about the law than I do for some guidance, a point of view.

Regards,
 

Tim W

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Ok then... Allow me to take a guess at what's happened, based on previous experience.
I'll try and make the langauge a bit more generic, so you don't mistakenly take it personally.
And I'll use male pronouns for lingusitic sheer convenience.

So, try this....

A worker personally felt sorry for an old lady sitting out in the heat,
and he invited her into their air conditioned office space, to wait for her carers to arrive.

His boss had a problem with that.
And, the boss went on to say something like

"You shouldn't have done that. If she gets sick from the heat while she's here, then she could sue us."

--> Unspoken subtext: Boss does not have proper public liability insurance.

The worker's position is that he/ the boss/ the business had some sort of "duty of care" towards the old lady,
which makes what the boss said above, wrong.
And now, the worker's trying to figure out to what extent, if at all,
doing a simple humane thing could be(come) the problem the boss is afraid of.


... let me know if I've got a sense of it.
 

Paolo 777

Member
17 February 2020
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Thank you for your reply.

A worker personally felt sorry for an old lady sitting out in the heat,
and he invited her into their air conditioned office space, to wait for her carers to arrive.

Correct. Worker was also concerned 'Alice' may faint from the heat and suffer injury.

His boss had a problem with that.
And, the boss went on to say something like

"You shouldn't have done that. If she gets sick from the heat while she's here, then she could sue us."

Not quite correct.
It was the supervisor’s concern (not the boss’ concern as boss was not at work that day) that this elderly lady with a learning disability may cause trouble in our office with our people, as ‘Alice’ had been known to be cantankerous.

--> Unspoken subtext: Boss does not have proper public liability insurance.

I don't think insurance came into the thinking of the supervisor. It was more about 'Alice can be a pain in the neck to deal with and might cause trouble for us if we let her in the building'.

The worker's position is that he/ the boss/ the business had some sort of "duty of care" towards the old lady, which makes what the boss said above, wrong.

I didn't think about 'duty of care' aspect at the time, it just seemed to be the morally correct thing to do with someone who looked like they may faint at any minute and the fact that 'Alice' asked for shelter from the heat. Only later did I consider the question, 'Does a business have a duty of care to people on its premises'?

The main question for me was if something did happen to 'Alice', could there be legal consequences for the business (or the person from the business) that left her out in the heat?

I acknowledge this is not legal advice. Just your perspective/opinion.

Thanks again for taking the time to respond. I appreciate it.

 

Tim W

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28 April 2014
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Ok then... Allow me to take a guess at what's happened, based on previous experience.
I'll try and make the langauge a bit more generic, so you don't mistakenly take it personally.

A worker personally felt sorry for the old lady sitting in the heat,
and that worker invited her into their air conditioned office space to wait for her carers to arrive?

That worker's boss had a problem with that. And, the boss went on to say something like
You shouldn't have done that. if she faints or something, then she could sues us."

The worker's positon is that they/ the business had some sort of "duty of care" towards the old lady


By contrast your boss (even if he doesn't quite it say in these words),
is afraid that if she got (or later, gets) sick (etc) that he/ his business would somehow be liable
(even if he doesn't quite understand how)
and he/ the business doesn't have proper public liability insurance.

And you're now trying to work out to what extent, if at all,
doing a simple humane thing could be(come) the problem he's afraid of.

Thank you for your reply.

A worker personally felt sorry for an old lady sitting out in the heat,
and he invited her into their air conditioned office space, to wait for her carers to arrive.

Correct. Worker was also concerned 'Alice' may faint from the heat and suffer injury.

His boss had a problem with that.
And, the boss went on to say something like
"You shouldn't have done that. If she gets sick from the heat while she's here, then she could sue us."

Not quite correct.
It was the supervisor’s concern (not the boss’ concern as boss was not at work that day) that this elderly lady with a learning disability may cause trouble in our office with our people, as ‘Alice’ had been known to be cantankerous.
--> Unspoken subtext: Boss does not have proper public liability insurance.
I don't think insurance came into the thinking of the supervisor. It was more about 'Alice can be a pain in the neck to deal with and might cause trouble for us if we let her in the building'.

The worker's position is that he/ the boss/ the business had some sort of "duty of care" towards the old lady, which makes what the boss said above, wrong.
I didn't think about 'duty of care' aspect at the time, it just seemed to be the morally correct thing to do with someone who looked like they may faint at any minute and the fact that 'Alice' asked for shelter from the heat. Only later did I consider the question, 'Does a business have a duty of care to people on its premises'?

The main question for me was if something did happen to 'Alice', could there be legal consequences for the business (or the person from the business) that left her out in the heat?

I acknowledge this is not legal advice. Just your perspective/opinion.

Thanks again for taking the time to respond. I appreciate it.
Going only by what you've said above, missing facts missing,
and with any unstated ifs, buts, maybes, exceptions and unlesses not allowed for,
I don't see that any of you had any obligation to her personally, beyond the moral,
and no personal obligation beyond that of any other private individual whose gaze happened to fall upon her.
 

Rod

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ie. No legal duty of care applies, therefore no negligence.
 

Tim W

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I agree with Rod.
Bottom line - you're fine.