The Legal Liability Of Negligence And Contributory Negligence In Case Of Injury

Elements of Negligence

Question:

Discuss about the Illicit Trade in Art and Antiquities.

The main issue of the case whether Dora is Delight can claim damage against the Maleny Reception Pty Ltd or not. The present case is based on the parts of negligence. An act that has been stated as negligent act when a person had failed to do certain thing what an ordinary person with prudent mind could do at the same time. The principle of negligence is enlightened under the law of Torts. It is the responsibility of every person to act diligently. However, in certain circumstances, it can be observed that this act of diligences has not been maintained properly. One of the main criteria of negligence is the failure to foresee all the consequences. There are certain elements present under the provinces of negligence. When these elements are fulfilled, it can be stated that negligence has been done. The elements are as follows:

• It has to be proved that the defendant has a duty as against the plaintiff which has to be taken with great care;
• It has also to be proved that the duty is being breached by defendant;
• If the allegations have been proved against the defendant, plaintiff can claim damage;
• The injury to be foreseeable nature.

The legal liability of a defendant to a plaintiff is based on the defendant’s failure to fulfil a responsibility, recognised by law, of which the plaintiff is the intended beneficiary (Bigus 2015). The first step in determining the existence of a legally recognised responsibility is the concept of an obligation or duty. In the tort of negligence the term used is duty of care. The case of Donoghue v Stevenson [1932] has established the principle of negligence. It has been proved in this case that the manufacturer owed certain duties as against the plaintiff. Caparo Industries Plc v. Dickman [1990] introduced a ‘threefold test’ for a duty of care. Harm must be (1) reasonably foreseeable (2) there must be a relationship of proximity between the plaintiff and defendant and (3) it must be ‘fair, just and reasonable’ to impose liability (Burns 2013). However, these act as guidelines for the courts in establishing a duty of care; much of the principle is still at the discretion of judges.

Once it is established that the defendant owed a duty to the plaintiff/claimant, the matter of whether or not that duty was breached must be settled. The test is both subjective and objective. The defendant who knowingly (subjective) exposes the plaintiff/claimant to a substantial risk of loss, breaches that duty (Goold and Maslen 2014). The defendant who fails to realize the substantial risk of loss to the plaintiff/claimant, which any reasonable person [objective] in the same situation would clearly have realized, also breaches that duty management.  

Duty of Care and Breach of Duty

Even though there is breach of duty, and the cause of some injury to the defendant, a plaintiff may not recover unless he can prove that the defendant’s breach caused a pecuniary injury. This should not be mistaken with the requirements that a plaintiff prove harm to recover. As a general rule, a plaintiff can only rely on a legal remedy to the point that he proves that he suffered a loss; it was reasonably foreseeable (Jacob 2015). It means something more than pecuniary loss is a necessary element of the plaintiff’s case in negligence. When damages are not a necessary element, a plaintiff can win his case without showing that he suffered any loss; he would be entitled to nominal damages and any other damages according to proof.

The present case is based on the provision of Civil Liability Act 2003. The Civil Liability Act 2003 contains statutory protection for persons performing voluntary work for community organisations from incurring personal civil liability. It also contains fundamental changes to the common law of negligence. The Act was passed as part of the Queensland Parliament’s response to the civil liability and insurance ‘crisis’. Many of its initiatives are based on the recommendations of the Review of the Law of Negligence Report. The legislation dealing with the issue of volunteer protection has been passed in every State and Territory in Australia. Legislation has also been passed in the United States that deals with similar issues.

Certain provisions of the contributory negligence will also be applicable here. The contributory negligence defence can potentially eliminate the defendant’s responsibility to pay damages to an injured plaintiff. For example, a pedestrian crosses a road negligently and is hit by a driver who was driving negligently. Since the pedestrian has also contributed to the accident, they may be barred from complete and full recovery of damages from the driver (or their insurer) because the accident was less likely to occur if it hadn’t been for their failure to keep a proper lookout (Loss, Seligman and Paredes 2017). Another example of contributory negligence is where a plaintiff actively disregards warnings or fails to take reasonable steps for his or her safety, then assumes a certain level of risk in a given activity; such as diving in shallow water without checking the depth first. It denotes the liability of the plaintiff in the negligent act. It is a weapon of the defendant as against the plaintiff.

Contributory Negligence and Assumption of Risk

There is another thing that can be used as defence for the defendant and that is voluntary assumption of risk. It is a defence in proceedings in negligence for the defendant to prove that the plaintiff fully comprehended the risk of injury that materialised and freely chose to accept it (Lyons 2015). The defence of “voluntary assumption of risk”, which is a defence to a claim in negligence, corresponds to the plea of “consent” in actions for intended harm. Both are expressions of the same philosophy of individualism: no wrong is done to one who consents: volenti non fit injuria – “to a willing person, injury is not done.”

It has been clear from the elements of the negligence that a person can claim damages against any person or authority if it has been proved that the respective person or authority owes certain duty against him. It can be stated that in the present case, the authority of the reception has failed to take care of the tiles and the roof and the rainy weather makes the floor slippery and when Dora went on the floor, she slipped and sustained severe back injury. It is the duty of the reception authority to take care of the event house and they should have to remain liable for anything involves the event house. It has also been observed that the reception authority knows about the fact that the roof has been in a dilapidated condition and it is required to be maintained, but they did not pay any heed to it.

It has been witnessed by many employees of the reception authority who had confessed that the floor tiles of the event house were old and the very nature of the tiles makes them slippery. Further, the roof of the veranda was poor and water had swiped away from it and that also responsible to make the floor slippery. It is the duty of the authority to take reasonable care for all this, but they had failed to do it (Price 2013). According to the provisions of Donoghue v Stevenson, the authority is responsible here and can be charged under the breach of duty.

In this case, it has also been observed that Dora was drunk that day and it was confessed by her. Another important thing is that prior to the accident, she got slipped slightly and she knew that the floor is slippery. Therefore, she knew that the floor can make injury to her. However, after the party when she was went through the floor, she slipped and got injured. It has been held in Smith v Charles Baker (1891) that when the plaintiff invited the risk to be applied on him, and sustain injury regarding the same, such an act of the plaintiff can become a good defence for the defendants.

Under the provision of the contributory negligence, if the plaintiff knows that there is certain risks regarding certain acts and still then he try the same and got injured, law will bar him to claim total damage from the defendant for the injury (Sime 2015 ). This is a well known principle of the contributory negligence. In this case, Dora was drunk at the time of the accident. Moreover, she knew that the floor was slippery. Thus, she needed to be more careful when walking on the floor. However, she did not take much care and fell.

Conclusion:

Therefore, it can be stated that Dora Delight can claim damage against the reception authority under the act of negligence but she could not claim full damage as she was partly responsible for the injury.

Reference:

Bigus, J., 2015. Auditor Reputation Under Different Negligence Regimes. Abacus, 51(3), pp.356-378.

Burns, K., 2013. It’s not just policy: The role of social facts in judicial reasoning in negligence cases. Torts Law Journal, 21, p.73.

Goold, I. and Maslen, H., 2014. Must the surgeon take the pill? Negligence duty in the context of cognitive enhancement. The Modern Law Review, 77(1), pp.60-86.

Jacob, J., 2015. Innovation in risky industries under liability law: the case of double-impact innovations. Journal of Institutional and Theoretical Economics JITE, 171(3), pp.385-404.

Loss, L., Seligman, J. and Paredes, T., 2017. Fundamentals of securities regulation management. Wolters Kluwer.

Lyons, A., 2015. Duty of care. Good Practice, (12), p.24.

Price, W.N., 2013. Legal implications of an ethical duty to search for genetic incidental findings. The American Journal of Bioethics, 13(2), pp.48-49.

Shan, W., 2014, April. On the Civil Liability for Acts of Violating Personal Information. In 2014 International Conference on Economic Management and Trade Cooperation (EMTC 2014). Atlantis Press.

Sime, S., 2015. A practical approach to civil procedure. Oxford University Press, USA.

Stickley, A.P., 2016. Australian Torts Law. LexisNexis Butterworths.

Stuhmcke, A. and Stewart, P., 2014. Lacunae and Litigants: A Study of Negligence Cases in the High Court of Australia in the First Decade of the 21st Century and Beyond.

Ulph, J. and Smith, I., 2015. The illicit trade in art and antiquities: international recovery and criminal and civil liability. Bloomsbury Publishing.