Homework Question - Duty of Care, Liability and Compensation

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3 June 2015
Ok so here is the question (below) from a past Torts exam paper.

My answer would be this-

I am pretty sure that at Marge is not entitled to any compensation even though expert evidence proved her psychiatric illness (more than mere grief) as a result of fear for her young son's safety. The reason being everything was due to her negligence. I don't think Selma (who was off-duty (means she at the time had no duty to rescue)) was responsible at all and Bart escaped the child care centre due to Marge's negligence. I don't think the child care centre was negligent or liable since they were busy tending with another child who was hurt under their responsibility and they had taken precautionary measures to install a spring device on the gate through which no child could reach or escape. It was entirely Marge's negligence. So it was not reasonably foreseeable for the centre that Bart would escape. He escaped due to his mother's negligence

Is my opinion correct? Is the child care centre free of blame here? Were they negligent? Only if XYZ was negligent, would Marge be entitled to compensation for her psychiatric condition.


New South Wales has had a very long period of very wet weather. The commercial centre of a medium size country town is located close to the river. After an extended period of heavy rain and without warning there is a sudden surge of water 2 metres high down the river. The flash flood swept down the river taking vehicles and anyone and everything in its path.

XYZ Ltd is a registered child care centre located in the town. The front gate to the centre is opened by a pull up catch at the top of the gate; it is out of the reach of small children. The gate when opened has a spring which automatically closes the gate. Marge takes her 4 year old son Bart to the centre for day care. As Marge left, she unknowingly drops a small cardboard box at the gate which prevents it from closing properly. The centre staff are not aware that the gate is not closed. Bart escapes out of the gate whilst a child care centre employee is attending to another child who had fallen and injured his knee. This is shortly before the flash flood.

Bart is seen outside the kindergarten by Selma, an employee of the child care centre. Selma at the time is on her day off. Selma assumes that Marge must be nearby and does nothing to ensure that Bart returns to day care.

Bart's mother Marge is informed that Bart escaped just before the flash flood. Marge goes searching for him. In her distress Marge runs along the edge of the water where she trips and falls on debris that has been washed downstream by the flood. She suffers a broken leg.

When Bart could not be found, it was assumed that he had been swept away by the flood. Marge, who has been described as a very nervy person at the best of times, suffers extreme distress. Some 3 hours later Bart is found up a tree just outside the child care centre some distance away from the flood zone. Marge describes him as a natural climber. Although Bart is safe and unharmed, Marge has not recovered from the fear that he may have been swept away by the flood and suffers severe depression. She is under the continuing care of a psychiatrist. The psychiatrist will give evidence that Marge may never recover from her depressive illness.

You are asked to advise XYZ Ltd as to its liability and Marge as to her rights (if any) to compensation. In your answer refer to relevant case and statutory law.

[In this question you are not required to refer to how damages will be assessed. This is required in question 2 below.]


Hi Markaz,

Yes I would tend to agree with your answer it was simply a cascade of events that resulted in Marge suffering this injury and no one could be said to have breached their duty of care toward Bart.

For extra points you could also mention that:
  1. it is unlikely marge could recover compensation from the occupier of the land where she was running and broke her leg, as there was likely no opportunity for them to clean up the slippery debris that gave rise to a risk of slipping, and she knowingly undertook the risk - running in a dangerously slippery area.
  2. Egg shell skull principle may apply as Marge was predisposed to being a nervy person - so had she been able to recover how would this affect her diagnosis with psychiatric condition.
Remember, pretty much every statement in an exam question is there for a reason, so analyse each sentence to determine what issues they are trying to get you to identify. And of course don't forget to back up everything you say with authorities!