Through this letter, an attempt is made to furnish an advice to James on whether there are any grounds under the law of negligence and the Wrongs Act 1958 which are established so as to bring an action against Super Quick.
As per the factual scenario stated by James, it is found that James was a worker at Super Quick factory. The company is indulged in the manufacturing of steel frames in housing constructions. While working at the company there was damages that are sustained by James. Thus, James has the right to sue Super Quick for the losses that are sustained by him and thus he has to prove all relevant provisions of the law of negligence and the Wrongs Act 1958 to recover the losses that are sustained by him.
Now, James can only bring an action against Super Quick provided the elements that are required to prove negligence are established against the company.
As per Donoghue v Stevensonan action under the law of negligence can be bought when it is proved that Super Quick is under a duty of care to provide protection to James and this duty of care is violated by the company which has resulted in causing damage to him. Thus, the three prime elements under the law of negligence must be proved by James against Super Quick which includes the element of the duty of care, breach of duty of care and the damages sustained by James and are held in Grant v Australian Knitting Mills.
The basic facts reveal that Super Quick is the occupier of the premises wherein James is working. As per AC Billings & Sons Ltd v Rodem an occupier is the person who is controlling or is in the occupation of the structure wherein James was present. Now the prime issue is whether a duty of care can be imposed on Super quick against James so that no loss or damage should be caused to James because of the acts and omission of super quick. The duty can be imposed provided two elements can be proved, that is, the element of neighborhood and the reasonable foreseeability.
It is submitted that James was indulged in the task of applying labels at the steel produced. This was done by him by standing on the platform (which is 1 meter off the ground having 3 steps and guard rails which are waist high) in order to secure labels to the steel. James was working at the premises of Super Quick. Thus, super Quick was the owner and occupier of the premises wherein James was working. Thus, Super Quick and James are close and proximate enough thereby establishing a relationship of neighborhood amid them. Any acts or omissions of Super Quick will fall upon James directly there by making them neighbors of each other and thus imposing the duty of care on super Quick as held in Caparo Industries Plc v Dickman.
Further, Super quick can reasonably foresee the presence of James. In the leading case of Tame v New South Wales it was held that it is only when the presence of the aggrieved party can be considered reasonably, it is then only the duty of care can be imposed on any defendant. As per Coregas Pty Limited v Penford Australia Pty Limited the duty is considered to be complying with reasonably when the same is carried out like a normal prudent man in the similar situation.
The duty of care element is also made part of the Wrongs Act 1958. Under section 48 and section 14B (3) of the Act it was rightly held that every occupier has the duty to provide care to its occupants and must ensure that no loss is caused to its occupants against the risk which is foreseeable and significant. Non compliance of the same results in the violation of the duty of care on the part of the occupant. As per Hackshaw v Shaw an occupier owns a duty of care towards the occupants in reasonable manner. This is the common law duty of care that was made part the Wrongs Act 1958 and was given a legislative importance. Thus, there is a duty of care upon Super Quick to make sure that by no acts/omission any damage should be caused to James.
Now, on 11 the April 2018 (Wednesday), when James was working there was some steel gears became stuck on the conveyor belt. To rectify the problem James stood on the platform and reached the belt and dragged the steel away from the side of the belt and thus lost his balance and landed on the concrete floor. Thus at this state the prime issue that arise is whether the super quick who is the occupier of the premises has violated his duty of care against your good self.
It is established that the duty of care that is laid down under the law of negligence and is considered to be violated only when the level and standard of care that is expected from the occupier of the premises is not met and is held in Bolton v Stone. The level of care vary from situation to situation, such as, the level of care that is required when the plaintiff is old or child or ill, etc is higher OR when the risk is high then the level of care is also high and vice versa and is held in The Council of the Shire of Wyong v Shirt.
The violation of duty is also considered under section 50 of the Wrongs Act 1958 wherein it was held that if no warning is give to the occupant of the premises then the duty is considered to be violated by the occupier of the premises.
Now, it is found that Super Quick was the occupier of the premises wherein James was working. The level of care that was expected from super quick was not met. This is because that the company was aware that its conveyer belt was not working effectively. Knowing the said fact and with the knowledge that the worker will stretch at the platform in order to rectify the problem and that there are chances that they might fall, the company still made no attempt to bring any kind of warning notice within the knowledge of the workers including James. Thus, the level of care that is expected from Super Quick was not met.
At this stage it is advice that even though the duty of care is considered to be violated, but, James can only make Super Quick liable under the law of negligence and for the violation of the provisions of the Wrongs Act 1958, provided that there is some damage that is caused to your good self because of the breach of duty of care on the part of Super quick and is held in South Australia Asset Management Co v York Montague.
It is submitted that James fall on the concrete floor and his left hand was injured hugely. The first aid officer, Jenny, put the left hand in a sling. He was rushed to the hospital and the X –ray shows that the hand wrist of James was broken, that is, there is dislocation to the left elbow. A surgery was conducted followed by a rehabilitation program. He has been unable to return to his pre-injury duties.
It is submitted that the loss and damages that are caused to James was the result of the breach of duty of care on the part of Super quick. But, the damages are considered to be under the law of law of negligence provided the loss that was caused to James was not remote and there was presence of causation.
It is found that Super quick was aware that if the duty that is imposed on it is not comply with then there is some damage that might be caused to the workers including James. Thus, the loss is not remote to be predicted. Also, the loss that was caused to James was the direct result of the violation of the duty on the part of Super quick. Thus, there is causation present. So, the damages that are caused to your good self was within the scope of the law of negligence.
Thus, James can easily prove all the elements of the law of the negligence against Super Quick and the company is liable for the damages that are caused to James. James also has the option to sue super quick for the violation of the provisions of the Wrongs Act 1958 and bring action for the claim of the damages that are suffered by him.
References
Latimer, P. Australian Business Law 2012. 2011. CCH Australia Limited.
Norman, K. Who then in law is my neighbour?. 2004. Reverting to First Principles in the High Court of Australia. The Tort Law Review 12(2):pp. 85-97.<https://eprints.qut.edu.au/5213/1/5213_1.pdf>;
Vines, P. “The Needle in the Haystack: Principle in the Duty of Care in Negligence” [2000] UNSWLawJl 25
AC Billings & Sons Ltd v Rodem [1958].
Bolton v Stone (1951).
Coregas Pty Limited v Penford Australia Pty Limited [2012] NSWCA 35.
Caparo Industries Plc v Dickman [1990] 2 AC 605
Donoghue v Stevenson (1932);
Grant v Australian Knitting Mills (1936);
Hackshaw v Shaw (1984).
South Australia Asset Management Co v York Montague (1996).
Tame v New South Wales (2002).
The Council of the Shire of Wyong v Shirt (1980).
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