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CASE NOTE

Modbury Triangle Shopping Centre Pty Ltd v Anzil and Another

(2001) 176 ALR 411
Chapter 4

Relevant facts

Modbury Triangle Shopping Centre Pty Ltd (‘Modbury’) owned the Modbury Triangle
Shopping Centre in Adelaide. Anzil was a manager of a video rental shop in the
shopping centre. At about 10.30pm on 18 July 1993, after closing the video shop, Anzil
was walking to his car in the car park of the shopping centre when he was attacked by 3
assailants. He sustained serious injuries. The car park was not lit at the time of the
incident as the car park lights were turned off at about 10pm.

Anzil sued Modbury for damages alleging negligence on the part of Modbury as the
occupier of the land. The trial judge found in Anzil’s favour on the basis that:
(1) Modbury owed a duty of care to tenants and customers to take reasonable
care for their safety;
(2) Modbury breached the duty by not keeping the car park lit at the time Anzil
was leaving the video store; and
(3) causation was established because of the clear connection between the
breach of duty of care in failing to keep the car park lit and the attack. An appeal to the
Full Court of the Supreme Court of South Australia was dismissed. Modbury was
granted special leave to appeal to the High Court on both the issue of whether a duty of
care existed and causation.

Legal issue

Did Modbury owe a duty of care to those lawfully on its land to protect them against
criminal acts by third parties? Did Modbury’s action or inaction cause the injuries to
Anzil?

Decision

A majority of the High Court (Gleeson CJ, Gaudron, Hayne and Callinan JJ, with Kirby J
dissenting) allowed Modbury’s appeal on both issues, and decided that Modbury was
not liable for Anzil’s injuries. It held:

1. As an occupier Modbury owed Anzil a duty of care, but the duty did not extend to
taking reasonable steps to prevent criminal conduct by third parties which
would cause physical injury to Anzil in circumstances where Modbury was unable
to control the conduct of the assailants.
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2. Modbury’s failure to leave the car park lit facilitated the crime, in a similar way to its
provision of the car park and Anzil’s decision to park there, but it was not the cause
of Anzil’s injuries. The direct and immediate cause of the injuries was the
conduct of the 3 attackers who were acting independently of Modbury.

According to Chief Justice Gleeson (at 415):

This is not a case, for example, where inadequate lighting resulted in the concealment of some
dangerous object or condition in the car park, with consequent damage to person or property.

Further (at 418):

The unpredictability of criminal behaviour is one of the reasons why, as a general rule, and in
the absence of some special relationship, the law does not impose a duty to prevent harm to
another from the criminal conduct of a third party, even if the risk of such harm is foreseeable.

And (at 419):

The most that can be said of the present case is that the risk of harm of the kind suffered by the
first respondent was foreseeable in the sense that it was real and not far-fetched. The existence
of such a risk is not sufficient to impose upon an occupier of land a duty to take reasonable care
to prevent harm, to somebody lawfully upon the land, from the criminal behaviour of a third party
who comes onto the land. To impose such a burden upon occupiers of land, in the absence of
contract or some special relationship of the kind earlier mentioned, would be contrary to
principle; a principle which is based upon considerations of practicality and fairness.

Significance

This decision is authority for the view that the duty of care owed by an occupier of land
to entrants to that land does not extend to taking steps to prevent criminal conduct by
third parties which would cause physical injury to a lawful entrant in circumstances
where the occupier is unable to control the conduct of the assailants.