Does a plaintiff’s grandmother owe her grandchild a duty of care?

In the case of Hoffman v Boland (2013) NSWCA 158, the NSW Court of Appeal was split as to whether a duty of care arose in the circumstances of a domestic situation involving permanent injury to an infant - but the Court agreed after a lengthy opinion that there had been no breach and overturned the primary Judge's decision.

Reverend Hoffman was staying at her brother’s holiday home with family, including her daughter and infant granddaughter, Molly. On the morning of the incident in 2006, Molly awoke crying at around 5 am. Reverend Hoffman offered to assist her daughter, who agreed, by carrying Molly down the stairs. As Reverend Hoffman descended the stairs, she fell, causing serious and permanent injury to Molly. Molly, by her father as “tutor” in the proceedings, sued Reverend Hoffman for damages for personal injury - and the Reverend was found liable by the primary Judge.

On appeal, the Court considered the balance between legally enforceable parental obligations and support for domestic relationships. In Australia, there is no parental immunity and  also no general duty of care that arises because of blood relationships. 

Basten JA and Sackville AJA reached different conclusions on the question of duty of care.  Basten JA found that it is legally incoherent to impose a duty of care on parents or family members for the ordinary day-to-day care of a child.  Barrett JA did not offer an answer as to the question of duty of care, but he expressed the opinion that courts should be slow to characterise as negligent gratuitous care bestowed on a child by a person exercising parental functions in a family or domestic setting, whether or not the person is a biological parent.

Sackville AJA found that Reverend Hoffman owed a duty of care. The Reverend had taken physical custody and control of Molly, a distressed infant, and then proceeded down a staircase. She owed Molly a duty to take reasonable care to protect her from the foreseeable risk of injury, including taking reasonable care not to trip or fall on the staircase so as to create a risk of injury to her granddaughter. Yet, the Justices agreed that, even if a duty of care was established, the Reverend did not breach that duty because she appreciated that there was a risk of falling and took sensible and appropriate precautions to guard against it.

The Court of Appeal found that the primary Judge erred in failing to take into account, as required by the Civil Liability Act 2002 (NSW), the social utility of Reverend Hoffman providing domestic assistance.

This case does not resolve the issue of duty of care for parents or relatives but does follow the rules of custody, control, and foreseeability in creating a duty. The opinion gives great weight to policy considerations for family claims and balances it with a careful evaluation of the principles of tort law in determining negligence. Overall, the orders of the Court of Appeal are fair and reasonable and speak to common sense as well as established legal principles.