The Potential Legal Risks of the Clinic --- Common Law Risk

Introduction

Per your request, I have conducted the research about the potential legal liabilities. Basically, there are two main issues that we should focus on. They include: (1) what legal risks would be under common law? (2) what legal risks would be under statutory law? A minor issue will also be discussed in relation to the security company’s liability. These issues will be analyzed in the following paragraphs in detail.

The Potential Legal Risks of the Clinic --- Common Law Risk

In this case, Anne (the customer of the Clinic) was suffered miscarriage and one security guard was killed. In order to determine the potential liabilities of the Clinic in relation to these two victims, we must initiate the analysis by considering whether the Clinic owed duty of care to them. The existence of duty of care is the fundamental element that needs to be satisfied; otherwise the Clinic will not be liable.

1. Whether the Clinic owed duty of care to Anne Marie and the security guard?

As Lord Atkin explained in Donoghue v Stevenson (1932), in order to prove the existence of duty of care, reasonable foreseeability and neighboring test should be both taken into consideration (Sweeney B, O’Reilly J & Coleman A, 2014, p. 47).

Based on the fact in this case, Anne’s injury was foreseeable. The injury was not an accident that occasionally happens; instead, it was more like an unfortunate consequence as was expected after a prolonged conflict between the Clinic and the extremist groups. The reasons are: firstly, the Clinic was aware that it had been targeted by those groups as they had been protesting outside the Clinic for 12 months. And half year later, the nature of the previous ‘peaceful’ protest had deteriorated. Extremists like Z, turned original protest into violence.

Secondly, after the first assault, albeit restricted by the court’s order, Z’s subsequent behavior was barely changed. He showed up on media expressing anti-abortion. His threatening words in the blog, and even worse, his reckless assaults on medical staff of other clinics had clearly expressed strong indications of his increasingly extreme behavior and attitude. These were the signals showing that the Clinic was still under threat, in other words, there was a foreseeable risk that something might happen.  

Thirdly, Z violated the restraining order and tried to break into the Clinic on that Sunday around 3 pm. Moreover, after being thwarted by the guard, Z threatened that he will return and kill everyone in the Clinic. Therefore, the impending risk hiked and more foreseeable than before, which means that the Clinic had to at least enhance its security to minimize the risk. Otherwise, the vulnerable clients might become potential targets. As the similar scenario in Club Italia (Geelong) Inc v Ritchie, like the Club owner, the Clinic could foresee the probability of harm in the future that would happen if there was no preventive action.

Then, the focus should move on to the neighboring test, which requires us to determine whether Anne Marie is the Clinic’s neighbor; or whether the Clinic’s insufficient action could affect her. Even though there was a contractual relationship (clinic-client), the contractual relationship per se was not a strong indicator. However, there might be other relationships. Given the fact that the Clinic was the property owner, and the property owner owed the duty of care to its clients who entered the property: Australian Safeway Stores Pty Ltd v Zaluzna. This meant that the Clinic had an obligation to protect the client from any potential but controllable harm. Basically, if no reasonable care had been taken by the Clinic to avoid foreseeable threat, the client (Anne), could have been in a position where she could be easily attacked. For this reason, Anne was the Clinic’s neighbor.

In summary, both reasonable foreseeability and neighboring test are satisfied. The Clinic owed duty of care to Anne.

In relation to the security guard, it is unlikely that the Clinic owed duty of care to the security guard. The death of the guard was not foreseeable for the Clinic. Besides, as the security guard was hired by the Clinic, it was the service provider and the Clinic was the client. For this reason, it was the security company, who owed duty of care to the Clinic. As was the recipient, it was not reasonable for the Clinic to reverse the obligation.

2. Did the Clinic breach the duty?

Although the extremist group failed to break into the Clinic on Sunday afternoon (3 pm), an upcoming threat could be foreseen --- Z threatened to come back and kill people. Thus, the probability of the harm and seriousness of that harm were both considered high, which required the Clinic to take actions in response. If no or proper actions had been taken, the Clinic could have breached its duty. It should be noted that the actions must not put excessive burden on the Clinic. In this scenario, we could use balancing test to determine if actual breach took place (Sweeney B, O’Reilly J & Coleman A, 2014, p. 64).

After the serious attack in the afternoon, the reasonable actions for the Clinic should be seeking for help (calling the police), enhancing its security or temporary closing the business. These actions might seem quite simple, but they could effectively reduce the risk. More importantly, they imposed very low burden on the Clinic. Unlike the burden caused in Harris v Bulldogs Rugby League Club (it was not reasonable to expect security staff to conduct individual body search), actions such as making a phone call to the police and at least increasing one more security (or putting a male security) at the rear entrance were fairly reasonable since these did not require too much effort.

However, the Clinic has failed to take any reasonable precautions to prevent the injury simply as calling the police. Therefore, the Clinic had breached that duty.

3. Whether Anne’s injury was due to the Clinic’s negligence?

The last issue is whether Anne Marie’s injury was because of the Clinic’s negligence. There should be a causal relationship in between. For this reason, the ‘but for’ test should be applied first --- but for the Clinic’s negligence Anne would not have assaulted by him (Sweeney B, O’Reilly J & Coleman A, 2014, p.75). Similar in Strong v Woolworths Ltd, the injury should have been avoided if Woolworths had a proper system in place. Back to the case, if the Clinic took reasonable precautions in Sunday afternoon, for example, putting one more security at the back entrance, Z would not be easy to deal with two professional guards simultaneously, and therefore, he could probably be stopped outside the back door, or in other situation where the Clinic closed its business, Anne would not be there around 10:30 pm. Consequently, it was the Clinic’s negligence that gave Z an opportunity to break in and assault Anne.