In the Australian Common law the provisions dealing with negligence have been incorporated in the notable case Grant v Australian Knitting Mills. PC 21 OCT 1935. It is to be mentioned that the legal provisions related to negligence was first established in the remarkable case Donoghue vs Stevenson [1932] AC 562. In this case Mrs Donoghue had sustained damages after consuming beer from a bottle which contained the decomposed remais of a snail. Her claim was upheld and it was decided that to establish that the defendant was negligent in performing his actions it must be proved that:
The first essential element which has to be proved in order to establish negligence is the duty of care. It has to be proved a duty of care to the plaintiff was owed by the deendant. To assess the duty of care the court generally applies the Caparo test which was first applied in the case Caparo Industries pIc v Dickman [1990] 2 AC 605. The objective of the test is to assess if the actions of the defendant could foreseeably harm others. In this case it was held that defendant did not owe duty of care as the auditors were not aware of the existence of Caparo and that there was no proximity between the auditors and Caparo.
It is important to establish that there was a breach of duty of care on the part of the defendant. Breach of duty of care is thus the second essential element for proving negligence. It is to be mentioned that the objective test is applied by the courts to determine and assess whether the defendant had breached his duty to take care. Such objective test was applied first in the case Vaughan v Menlove (1837) 3 Bing. N.C. 467. In this case the haystack of the defendant had caught fire due to poor ventilation of the room in which the haystack was kept. The defendant had argued that he had taken that decision in his best judgment. However the court held that this was not enough and the actions of the defendant are to be judged by the standard of a man who is reasonable in nature. The aim of the objective test is to identify whether a reasonable person placed in the position of the defendant would have acted in the same way or would have taken any additional care. If it can be proved that such person, who is reasonable, would have taken additional care to prevent any damage to be caused to anyone due to his actions, it would be held that the defendant breached his duty of care.
The third important essential in establishing negligence is causation of the damage. It has to be proved that the damage caused to claimant was the due to the negligent action of the defendant. The courts generally apply the ‘but for’ test in determining whether the damage caused to the claimant was a direct result of the defendant’s negligent action. The ‘but for’ test was first applied in the case Barnett v Chelsea & Kensington Hospital [1969]. In this case it was held that the hospital authorities were no to be held responsible for the failure of the doctor to diagnose the patient as the cause of death of the plaintiff was not a direct result of such failure to diagnose. The ‘but for’ test assesses whether the result would have been the same but for the omission of the action of the defendant. If it is found to be the same, then the defendant cannot e held liable.
It is to be mentioned that the defendant can be held responsible for the damage sustained by the claimant only if such damage was reasonably foreseeable to the defendant as held in the case The Wagon Mound no 1 [1961] AC 388. In this case it was held that a test of remoteness can be applied to assess whether the damage sustained by the claimant is remotely foreseeable. If such damage caused was foreseeable, the defendant would be held responsible. In the case Murphy v Brentwood DC [1991] AC 398 the same test was applied.
It can be stated that damages claimed by the claimant would be significantly reduced if contributory negligence is established as held in the case Railways v Halley [1978] 20 ALR 409. One of the most favorable grounds of defense available to the defendants in negligence cases is contributory negligence. Contributory negligence is established in situations where the injury or damages sustained by the claimant is caused partially due to the negligence on the part of the defendant as well as on the part of the claimant. To establish contributory negligence, it has to be proved that the plaintiff failed to take reasonable care for their own safety. It is to be mentioned that the amount of damages claimed will be reduced based on the extent of the plaintiff’s contribution to the loss suffered. However, it can be mentioned that such failure to take care was a contributory cause of the damage suffered by the plaintiff as held in the case Capps v Miller [1989] 1 WLR 839 . However lack of proper care for own safety is subjective and differ from standard breach of duty of care as held in the case Davies v Swan Motor co [1949] 2 KB 291. The case Jackson v McDonald’s Australia Ltd [2014] NSWCA 162 deals with the provisions of contributory negligence in slip and fall case. In the aforementioned case the court found the plaintiff to be 70% contributory negligent as he did not hold any hand rails while walking on a wet floor in spite of reading a signpost about the wet floor.
In this chosen case study, first it is to be assessed whether Alice had a duty of care towards her clients, Xi and Marcos. Xi and Marcos had booked two adult tickets on the vessel of Alice which had taken them to the sea so that they could have wonderful whale watching experience. Therefore, Caparo test as discussed above can be applied in this case study. Alice, in this case could have foreseen that her actions could have adverse effects on her clients as they completely relied on her actions. Thus, it can be proved that Alice had duty of care towards the aforementioned parties.
The next step is to identify whether Alice had breached her duty of care. The objective test can be applied to this case study in order to assess whether any reasonable person would have taken addition care in order to prevent any damage caused to her clients or would have acted in the same way as Alice. In this case it can be said that any reasonable person would not have over loaded the boat or would have focused on the safety of the passengers instead of chasing the whales. It can further be mentioned that any reasonable person would have steered the boat in the direction of the harbor and would have rushed in an event of medical emergency. However, Alice chose to continue the tour neglecting the seriousness of the injury sustained by the clients. Any reasonable person would have incurred the costs for installing the mats on the floor of the boat to ensure that passengers would not slip and fall which Alice had not done. Therefore, it can be established that Alice had breached her duty of care to her clients. The actions of Alice cannot be justified.
The third step is to identify if the damage sustained by the parties is a direct cause of negligent actions of the defendant. In this case the ‘but for, test as discussed above can be applied to assess whether the parties in this case study would have sustained the injuries in the event of omission of Alice’s Actions. It can be said that the party, Marcos had sustained the injuries after slipping and falling in the vessel provided by Alice. It can be mentioned that had had slipped as the entire floor of the vessel was not matted properly. Moreover, the vessel was over crowded due to which he did not enough space to sit and had to stand for the entire trip. It can be mentioned that the injuries sustained by Marcos was primarily due to the negligent actions of Alice. In addition Alice did not take immediate action after Marcos sustained injuries. Therefore, it can be established the claimant would not have injured himself had it not been for the negligent action of the Alice
The fourth essential element in establishing negligence is foreseeability. It is to be stated that damages can be claimed by the plaintiff for the injuries sustained only if it is reasonably forseeable. In this case study, any reasonable person placed in the position of the Alice would have foreseen the injury sustained by Marcos. Any reasonable person would have foreseen that overloading the boat beyond its capacity and not matting the floor could result in an accident involving any of the clients. Further it can be said any reasonable person would have foreseen the seriousness of the injury sustained and would have immediately taken the boat to the harbor instead of carrying on with the trip. Therefore, it can be established that the injury sustained by Marcos was foreseeable to Alice and she completely ignored them.
However, there is one partial defense available to the defendants in claims of negligence. The defense of contributory negligence is the most popular defense ground as applied in the case Railway vs Halley. If contributory negligence is established, the amount of damages claimed can be significantly reduced. In this chosen case study, it can be noted that the clients had been instructed to wear closed in foot on the vessel. The same instruction was provided as a requirement in the booking confirmation email which was received by Marcos and Xi. However, the claimant Marcos was not wearing closed in footwear. He was wearing slippers. He neglected that requirement and boarded the vessel wearing slippers. Therefore if the judgment of the Mac Donald’s case is applied in this scenario it can be said that, Marcos is contributory negligent and he had slipped due to not wearing closed in shoes as instructed and was not holding the hand rails. Had he been wearing closed in footwear, he might not have slipped and fallen and therefore not injured himself. However, this possibility is a hypothetical one and therefore is debatable. It can be mentioned that defense of contributory negligence is partial and thus Alice cannot avoid the entire liability.
Thus after analyzing the facts of the case and applying the legal provisions to the facts it can be stated that Alice had a duty or care to the claimant, she breached her duty of care, the injury sustained by Marcos was caused by the negligent actions of Alice, the injury sustained by Marcos was clearly foreseeable. Therefore negligence on the part of Alice can be established.
However, there was negligence on the part of Marcos as well and therefore damages claimed would be significantly reduced.
Thus to conclude the following points can be addressed:
It is to be mentioned that Alice used the Utilitarian Approach while taking the decision to proceed with the trip in spite of being aware that Marcos had sustained severe injuries. Alice could have steered the vessel in the direction of the harbor however, she decided to carry on with the trip as the basic purpose of the trip was to view whales and every client on the vessel had paid to watch whales. It can be said that she had used the Utilitarian concept because she gave more importance to the whale watching experience which was supposed to create the greatest benefit for most of the clients and had neglected the seriousness of injury sustained by Marcos.
In this scenario the primary factor that had to be given importance was the seriousness of the injury sustained by Marcos. The secondary factor to be taken into consideration in this scenario is the demand of the other clients to view whales. However, this factor should be considered to be secondary as catching a glimpse of a whale or viewing is in no one’s control and such whale viewing experience is a recreational activity which should be given less priority than severe health issues of clients.
In my opinion, The Virtue Approach would have been utilized by me at the time of decision making in order to determine whether to steer the vessel in the direction of the harbor or carrying on with the trip. According to me it can be stated that this approach would be the most suitable one to be utilized in this scenario as it focuses on the values of humanity, compassion and prudence. It can be mentioned that although the Utilitarian approach focuses more on the overall benefit or good of the most number of people, the basic and primary needs of an individual is not to be neglected. According to me it is inhuman to carry on any recreational activity on the demands of the majority of the people, while one person is in tremendous pain and suffering. Exhibiting such behavior would highlight the uncompassionate nature of such person. It is to be mentioned that in the given scenario, I would have sternly taken the decision to rush to the harbor immediately after the injury sustained by Marcos and would have neglected the unreasonable demands of the clients to show whales. According to me making a decision in a crisis situation requires identifying and evaluating the seriousness of the ethical issues and acting in way which would comply to high moral standards is essential. In this case the quest to spot whales is far less significant and paying attention to the needs of an injured person, thus the former should be given far more priority.
Barnett v Chelsea & Kensington Hospital [1969]
Caparo Industries pIc v Dickman [1990] 2 AC 605
Capps v Miller [1989] 1 WLR 839
Davies v Swan Motor co [1949] 2 KB 291
Donoghue vs Stevenson [1932] AC 562
Grant v Australian Knitting Mills. PC 21 OCT 1935
Jackson v McDonald’s Australia Ltd [2014] NSWCA 162
Murphy v Brentwood DC [1991] AC 398
Railways v Halley [1978] 20 ALR 409
The Wagon Mound no 1 [1961] AC 388
Vaughan v Menlove (1837) 3 Bing. N.C. 467
Stickley, A.P., 2016. Australian torts law. LexisNexis Butterworths.
Fulbrook, J., 2017. Outdoor activities, negligence and the law. Routledge.
Richards, B., 2015. Negligence and tort law: the corruption myth. LexisNexis Butterworths.
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