Discuss about the Commercial Law Defenses to Negligence.
A tort is a civil wrong done, where the act undertaken by an individual turn into a harm or loss for the other party (Emanuel and Emanuel, 2008). In Australia, negligence is considered as a tort. Negligence occurs when there is a failure on the part of an individual, to fulfill the duty of care which they owed to another individual, which translates into harm, injury or loss to such other party. By fixing a liability on the party which failed to fulfill its duty, the damages can be recovered by the party harmed (Latimer, 2012). The following parts cover the analysis of the case of Anna and Trevor to highlight the applicability of different aspects of negligence in their case.
When an individual undertakes any act, they owe a duty of care towards the other person, who may be harmed due to the actions taken by such individual. In case such a duty remains unfulfilled or is breached, a case of negligence can arise (Trindade, Cane and Lunney, 2007). This principle was established so as to fix a duty of undertaken reasonable care while carrying out any activity by the individuals, and to safeguard the other from any harm, which is easily foreseeable (Lambiris and Griffin, 2016). Upon a case of negligence been established, the party harmed can claim damages, as a compensation for the injury. To establish that negligence actually took place, the elements like duty of care, breach of duty, and damages have to be established (Abbott, Pendlebury and Wardman, 2007).
The first and foremost thing, to be established in the case of negligence is the duty of care, as this is the key thing upon which the entire case of negligence is based. A legal obligation is placed through the duty of care, upon the individual carrying on the particular task, which could result in an injury or loss. A case, which is quoted time and again in cases of negligence, is the case of Donoghue v Stevenson [1932] UKHL 100, also known as the Snail in the bottle case. In this case, Donoghue had consumed ginger beer from a bottle while sitting in a café in Paisley, Renfrewshire. A dead snail was found in the bottle which made Donoghue sick and she sued Stevenson, the manufacturer of the ginger beer bottle for negligence. The court established that Stevenson owed a duty of care to its customers and the deal snail was a breach of this duty. Hence, Donoghue was successful in recovering damages for Stevenson’s negligence (British and Irish Legal Information Institute, 2017).
In the given scenario, being the operator of the tour, Trevor had a responsibility and obligation of ensuring that his clients were safe. So, a duty of care was owed by Trevor to the members taking his tour. Applying Donoghue v Stevenson, in the manner as Stevenson owed a duty of care towards its customers, being the tour operator Trevor owed a duty of care to the people taking the tour.
After establishing that the duty of care was indeed owed by the individual, to show that negligence took place, it has to be proved that this duty of care was breached (Turner, 2013). When the actions of the individual are such that the duty which was owed is not fulfilled and more so, breached, negligence can be established. When the individual fails to consider the possibility of a harm, damage or loss, which a prudent individual, in similar circumstances would undertake, it also contributes towards the breach of duty (Gibson and Fraser, 2014).
In the established case of Vaughan v Menlove (1837) 132 ER 490 (CP), due to the poor ventilation, the haystack of the defendant caught fire. Before this incident, the defendant had been warned on several instances that due to the poor ventilation, a fire could set off. The defendant argued that the risk of fire was not foreseeable when the fire really took place, and even went on to state that his best judgment had been used in this case. The best judgment of the defendant was held insufficient by the judge. This was because the judge believed that a prudent individual would have paid heed to the numerous warnings and the best judgment would have been of such a prudent individual. So, the defendant was held to have breached the duty of care in the quoted case (Commonwealth Legal Information Institute, 2017).
In given scenario, it has been already established that Trevor owed a duty of care to all the individuals who participated in his tour. And so, he had to make certain that none of the parties were harmed or injured. He left the tour members unsupervised for a long time period when he went on to search a new location. This led to the delay in the schedule of the entire tour and hence, the return time was pushed to the night. Due to the darkness that had fallen with night, Anna failed in making out the root of the tree and stumbled upon it, which resulted in her injury. Trevor had failed in fulfilling the duty of care towards its tour members. This establishes that there has been a breach of duty of care.
Also, applying Vaughan v Menlove, any prudent person would have ensured that the schedule of tour was kept up. In case there was a delay in the timings of the tour, then proper care should have been taken to safeguard the individuals from such incidents. This risk was clearly foreseeable, and as a tour operator, Trevor should have been aware about it. This further affirms a breach of duty of care by Trevor.
Unless and until, the breach of duty of care does not result in an injury, harm or loss to some other person, a case of negligence cannot be established. So, when there is a case of breach of duty of care, the result of such a breach has to be a loss, injury or harm for the party to the individual to whom this duty of care was owed (Statsky, 2011). This injury has to be substantial and a negligible injury would not establish negligence. For claiming damages under negligence, the injury has to be substantial enough that damages can be claimed upon it and a negligible or a remote injury would not attract any amount of damages (Harvey and Marston, 2009). This can also assist in claiming damages which are in nature of non-pecuniary, and an example of such non-pecuniary damages is the damages awarded for emotional or mental distress (Holmes, 2017).
There has to be a direct causation between the injury and the actions undertaken by the individual to establish a case of negligence. In addition to the direct causation, the loss has to be foreseeable. Unless and until, a loss is foreseeable, a party cannot take steps to avoid the injury (Greene, 2013). For instance, an earthquake is not foreseeable and hence, a claim in such case cannot be made. In the Wagon Mount case, otherwise known as the Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd [1961] UKPC 2, the real cause of the fire was held to be remote and so, the damages for the fire were not ordered to be paid by the defendant (H2O, 2016).
In given scenario, the injury was foreseeable as any person, whether a professional or novice, could easily trip on a tree branch at night time, due to the acute darkness. Further, Trevor had clear knowledge that the chances of falling at the night time in a trek were significantly higher as compared to day time, and this is the reason why he avoided the tours at night time. In the past, this had already resulted in injury to Trevor’s clients. This affirmed the foreseeability of the loss.
There was also a direct causation between the injury that Anna received and the failure of duty of care by Trevor in keeping his tour members safe at night time. Due to the presence of foreseeability, direct causation, and a significant injury due to the breach of duty of care, a case of negligence can be easily established.
A common defense used in the case of negligence is the defense of contributory negligence (Find Law, 2017). When there is a failure on part of the injured party, in taking the due care, which could safeguard them due to an injury resulting from the breach of duty of another person, a case of contributory negligence is established. In case a contributory negligence of the plaintiff is established, then the damages which are to be paid to the plaintiff are reduced according to the contribution of the plaintiff in such an injury (Dongen, 2014). In the case of Davies v Swan Motor Co [1949] 2 KB 291, Davies was standing at the side of the lorry and this was taken as a contributing factor in the injuries which Davies received. Because of this contributory negligence of Davies, the damages awarded by the court, to him, were reduced in the appropriate proportions (Swarb, 2016).
In given scenario, Anna drank up wine from the bottle which she had brought with her to the tour. Trevor had never provided any alcohol to Anna; moreover, he only gave the tour members sandwiches, and water. In addition to this, upon being offered wine by Anna, the other tour members had refused it. The consumption of wine made tipsy, which contributed towards the injury she received, as she was not her best while trekking.
Trevor had clearly laid down a requirement of wearing sensible clothing, as well as, shoes for the trek, to all the members taking the tour. And yet, Anna changed her shoes for high heels, which increased her chances of falling or tripping while trekking. Trevor was unaware that Anna was intoxicated or that Anna had changed her footwear. So, Anna contributed towards her injury. And as was established in the case of Davies v Swan Motor Co, the acts of Anna contributed towards the injury, in the same manner as it did for Davies by standing at the side of lorry.
Not once, but Anna, through her acts, contributed towards her injury twice and that too in a grave manner. Intoxication plus improper gear were two major factors which contributed towards her injury and so she would be liable for contributory negligence.
As highlighted earlier, when a negligence of an individual is established, a claim for damages can be made by the party injured or harmed, and this is in form of monetary compensation (Turner, 2013). And both pecuniary and non pecuniary losses can be claimed for negligence of an individual. A momentous case with regard to damages awarded for mental distress is the case of Baltic Shipping v Dillon High Court of Australia (1993) 176 CLR 344, where even though the plaintiff was not awarded the cost of the cruise, but for the mental distress caused due to the sinking of ship and the loss of belongings of the passenger, the plaintiff was awarded damages (Holmes, 2017).
The Civil Liability Act (QLD) dictates that in case of a contributory negligence, the damages awarded in case of negligence to the plaintiff would be reduced by the amount of the contributory negligence of the plaintiff. The reduction percentage of the contributory negligence is decided upon the discretion of the court of law (Hayes Gabriel, 2017). Section 47 of the Civil Liability Act provides that when, at the time of the negligence incident resulting in an injury, the plaintiff is intoxicated, whether under the influence of alcohol or drugs, then the damages awarded to the plaintiff are liable to be reduced by a percentage of 25 and even higher in cases where the court deems fit (Lavercombe, 2012).
Due to the injury resulting out of negligence of Trevor, Anna would have to be compensated for both the pecuniary and non pecuniary damages. But as there is no direct causation between the willful closure of the café by Anna and her injury due to negligence of Trevor, she cannot claim damages in form of lost income of twelve months.
However, the amount of damages that would be awarded to Anna would have to be reduced by the percentage of contributory negligence. Due to Anna being intoxicated, this would be a minimum of 25%. In addition to this, the judge may award a higher percentage as Anna violated the guidelines given by Trevor to wear proper gear for trekking by wearing high heels. The final amount of damages awarded to Anna, would hence depend upon the verdict of the court of law.
Conclusion
The applicability of the rules and case laws, with the given scenario highlights that Trevor owed a duty of care towards the tour members and he failed in fulfilling this duty, which resulted in serious harm to Anna. And so, Trevor is liable for negligence and would have to pay damages to Anna. However, due to the contributory negligence of Anna, the damages awarded to her would be reduced by 25% or more.
References
Abbott, K., Pendlebury, N., and Wardman, K. (2007) Business law. 8th ed. London: Thompson Learning.
British and Irish Legal Information Institute. (2017) Donoghue v Stevenson [1932] UKHL 100 (26 May 1932). [Online] British and Irish Legal Information Institute. Available from: https://www.bailii.org/uk/cases/UKHL/1932/100.html [Accessed on 02/03/17]
Commonwealth Legal Information Institute. (2017) Vaughan v Menlove. [Online] Commonwealth Legal Information Institute. Available from: https://www.commonlii.org/uk/cases/EngR/1837/424.pdf [Accessed on 02/03/17]
Dongen, E.V. (2014) Contributory Negligence: A Historical and Comparative Study. Boston: Brill Nijhoff.
Emanuel, S., and Emanuel, L. (2008) Torts. New York: Aspen Publishers.
Find Law. (2017) Defenses to Negligence Claims. [Online] Find Law. Available from: https://injury.findlaw.com/accident-injury-law/defenses-to-negligence-claims.html [Accessed on 02/03/17]
Gibson, A., and Fraser, D. (2014) Business Law 2014. 8th ed. Melbourne: Pearson Education Australia.
Greene, B. (2013) Course Notes: Tort Law. Oxon: Routledge.
H2O. (2016) Wagon Mound (No. 1) — “The Oil in the Wharf Case”. [Online] H2O. Available from: https://h2o.law.harvard.edu/collages/4919 [Accessed on 02/03/17]
Harvey, B., and Marston, J. (2009) Cases and Commentary on Tort. 6th ed. New York: Oxford University Press.
Hayes Gabriel. (2017) What is Contributory Negligence?. [Online] Hayes Gabriel. Available from: https://hayesgabriel.com.au/compensation-law/contributory-negligence/ [Accessed on 02/03/17]
Holmes, R. (2017) Mental Distress Damages For Breach Of Contract. [Online] Victoria University of Wellington. Available from: https://www.victoria.ac.nz/law/research/publications/vuwlr/prev-issues/pdf/vol-35-2004/issue-3/holmes.pdf [Accessed on 02/03/17]
Kelly, D., Hammer, R., and Hendy, J. (2014) Business Law. 2nd ed. Oxon: Routledge.
Lambiris, M., and Griffin, L. (2016) First Principles of Business Law 2016. Sydney: CCH.
Latimer, P. (2012) Australian Business Law. 31st ed. Sydney, NSW: CCH Australia Limited.
Lavercombe, D. (2012) Intoxication and contributory negligence: common law vs the Civil Liability Act 2003 (QLD). [Online] Lexology. Available from: https://www.lexology.com/library/detail.aspx?g=895104f1-fc0c-47bc-b875-79470fa98eb9 [Accessed on 02/03/17]
Statsky, W.P. (2011) Essentials of Torts. 3rd ed. New York: Cengage Learning.
Swarb. (2016) Davies v Swan Motor Co (Swansea) Ltd: CA 1949. [Online] Swarb. Available from: https://swarb.co.uk/davies-v-swan-motor-co-swansea-ltd-ca-1949/ [Accessed on 02/03/17]
Trindade, F., Cane, P. and Lunney, M. (2007) The law of torts in Australia. 4th ed. South Melbourne: Oxford University Press.
Turner, C. (2013) Unlocking Torts. 3rd ed. Oxon: Routledge.
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