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

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Besides, not all losses resulting from the Clinic’s failure were recoverable. The losses must not be too remote. The remoteness was necessary to be tested to eventually determine the Clinic’s liability. Reasonable foreseeability was again used. Basically, if the Clinic could not reasonably foresee that its negligence could lead to Anne suffering miscarriage, the result of miscarriage would be deemed too remote and the Clinic would not be liable at all. The fact was that the foreseeability did exist. Previous indicators showed that the Clinic was aware of the second attack by Z, and if no actions in place, the client would be in danger. More importantly, as a medical institution, the clinic must have relevant knowledge that pregnant women are liable to miscarriage when suffering physical harm.

As matters with regard to causation and remoteness of damage were both clearly addressed, the result was that Anne’s miscarriage directly relates to the Clinic’s negligence.

4. Defense

Either Anne’s own contribution to her own injury or her voluntary acceptance of the risk could be used as defense for the Clinic to reduce its liability. However, there was no evidence to support that Anne was contributed to her own injury when she was attacked by Z. This was because she did not do anything wrong that could be possibly assumed as a contribution to her own injury. Moreover, there also lacked evidence to support that Anne came to the clinic by voluntarily accepted the risk to be attacked by Z, as she came to the Clinic for its services and she did not have awareness of the risk that she would be attack on the Clinic’s premise.

5. Summary

The Clinic owed duty of care and had breached that duty, and because of the breach, Anne suffered injury. Therefore, it is more likely that the Clinic should compensate Anne for her loss. Anne could bring an action against the Clinic under tort law.

The Potential Legal Risks of the Clinic --- Statutory Law Risk (ACL s18)

There was also legal risk associated with the statement made by the Clinic after the first assault by Z. Considering the Clinic’s negligence in subsequent conduct, it could be viewed as a false statement.

The application of common law in establishing misrepresentation requires a higher proving standard. In comparison to the common law, the statutory law (ACL) takes a more broad scope in providing an alternative and easier way when considering false statement.

Two essential elements are required to satisfy when assessing the breach of s18: (1) the conduct must be made in trade or commerce; (2) the representation made was misleading or deceptive.

- Determine whether the statement was made in trade or commerce

This element is easy to be satisfied in this case. First, the statement was made by a medical service provider. Second, the commercial purpose was obvious as the statement made was to entice clients.

- Determine whether the statement was misleading or deceptive

A breach of s 18 ACL must involve conduct that is misleading or deceptive or is likely to mislead or deceptive. Any conduct that is capable of conveying a false representation is capable of being misleading or deceptive.

In the statement, the Clinic assured that it had been well prepared in order to protect clients’ safety. However, the fact was that neither the restraining order nor the Clinic’s action was effective. And it was held that the Clinic was negligent. Therefore, the statement made with regard to the security issue was likely to be false.

3. Summary

The statement made had breach ACL s18. The Clinic could be liable to pay the damages under s18. Besides, as ACL makes certain misinterpretation in commerce liable to civil or criminal penalties, the Clinic could be ordered to pay a fine.

However, it should be noted that if Anne wants to bring an action under ACL s18, she has to prove the causation due to her reliance on the statement. If she cannot prove the causation, even the Clinic has breach s18, she may not be awarded for damage. Similar in Sweetman v Bradfield Management Services Pty Ltd, if evidences showed that there was no difference on whether she relied on the statement, she would still choose the Clinic and for that reason, reliance is not satisfied.

The Potential Liability of the Security Company (Briefly Discussed)

1. Did the company owe duty of care to the Clinic and Anne?

Pro-Guard, a security service provider, had a contractual relationship with the Clinic. The major obligation of the security company was to protect the safety of the Clinic and its clients (special relationship existed).

As a security company equipped with professional experience and knowledge, after the attack at 3 pm on Sunday, Pro-Guard should sense the urgency of the increasing risk and realize the vulnerability of the Clinic and their clients. Because, without its proper protection, both of them could be exposed to the threat (foreseeability proved).

Thus, as a service provider, it owed duty of care to the Clinic and Anne.

2. Whether the security company failed to exercise the required standard of care?

Balancing test is again to be adopted to determine whether Pro-Guard Pty exercised standard of care. It was known that the probability of harm and the seriousness of harm were high after 3pm on Sunday.

Normal precautions could be: contacting police, security reallocation to the rear entrance, female security replacement, timely reporting the incident. These methods were viewed low cost and easy to implement. However, none was used. Rear entrance was a critical area but loosely guarded, the Clinic could have been advised to beef up security forces especially at the rear entrance or suspend business outright. Particularly, from a reasonable perspective, the replacement of the female guard to a male guard was highly recommended, a female’s physical strength is not as strong as a male colleague.

Referring to the decision mentioned in Modbury Triangle Shopping Centre Pyt Ltd v Anzil, defendant can be liable if there is a “high degree of certainty” that harm will follow from a lack of action. Pro-Guard did not understand the property’s weakness and failed to identify any probable risks. Thus, it was lacked of control and failed to meet its obligation.