Discuss about the Contributory Negligence and Historical and Comparative.
When the actions of one of the parties’ results in harm to the other party, it is considered as a tort, which is a civil wrong done. Negligence is one of the tort laws in Australia (Trindade, Cane and Lunney, 2007). Negligence is the failure to fulfill to the duty of care, which results in some kind of harm or damage to the party to which the duty was owed. Negligence fixes the liability on the breaching party, and allows the aggrieved party to recover damages for the harm caused (Turner, 2013). In the following parts, the various aspects of negligence, as are applicable in the case of Anna and Trevor, have been analyzed.
When an individual fails in fulfilling the required care, which they owe to the other person and which in a harm, injury or loss for the other person, then such an individual commits the tort of negligence (Kelly Hammer and Hendy, 2014). The rationale behind negligence is that the people are required to exercise the reasonable care while doing any task, so that their actions do not result in the foreseeable harm. When negligence is established, the aggrieved party has the option of claiming damages, which is in the form of monetary compensation. In order to establish that negligence is present, the essential elements of negligence have to be established. These include the duty of care, the breach of this duty of care and the resultant damages (Abbott, Pendlebury and Wardman, 2007).
In order to establish negligence, the first thing which needs to be established is the duty of care. The duty of care is the legal obligation, imposed over the individuals to adhere to the standards of reasonable care which could possibly result in harm, by performance of a certain task (Greene, 2013). This is the first element to establish that negligence took place. In Donoghue v Stevenson [1932] UKHL 100, it was established by the court the Stevenson owed a duty of care, by being the manufacturer of the bottle in which the snail was found, towards any such person who was buying the bottle. And accordingly, Donoghue was able to recover damages for the negligence of Stevenson (Harvey and Marston, 2009).
In the given case, Trevor was the operator of the tour and he was the one responsible for ensuring the safety of his clients. This meant that he owed a duty of care towards all those who took the tour. As was seen in the case of Donoghue v Stevenson, the manufacturer owed a duty to its users; in the same manner, the tour operator owed a duty of care to its clients. So, he had to ensure that
Once it is established that defendant owes a duty of care towards the plaintiff, the next step to be established is the breach of this duty of care. When the defendant is aware of the fact, that his actions can result in harm or loss, then such an individual breaches the duty of care. Also, when the defendant fails to consider the possible loss or harm, which a reasonable or prudent person, in similar circumstances would have considered, then such individual breaches the duty of care (Latimer, 2012).
In Vaughan v Menlove (1837) 3 Bing NC 467, the haystack of the defendant had caught fire as a result of poor ventilation. The defendant was given a warning on many occasions that there could be fire due to this reason. Later on, the defendant argued that he did not foresee any risk of the dire and that he had used his best judgment. In this case, the court held that this best judgment was not sufficient and he was judged by the standards of a reasonable person and a breach of duty was established (E-Law Resources, 2017a).
In the given case, it was the duty of Trevor to take care of the individuals who opted for his tour. And it was his duty to ensure that they do not receive any injury. In his search to find a new location, he left the tour members alone for a long duration. This resulted in the delay in returning, till which time, night had fallen. Near the end of the walk, Anna fell down as she could not see the tree root properly, on which she stumbled. Due to the fault of Trevor, in taking care of his crew members and delaying the tour, Anna was injured. So, there was a breach of duty of care.
As was held in case of Vaughan v Menlove, a reasonable person would have taken the necessary care to ensure that the tour members were safe and returned on time. Moreover, being a tour operator, Trevor was aware that such injury may occur, and so the risk was foreseeable. So, there was a clear breach of duty in this case.
The next essential is that the breach of duty of care must result in a damage, or loss, or injury. When a duty of care is breached, it has to result in a harm or loss for the party to whom the duty was owed. In case there is no loss or harm, or the loss or harm is negligible, then a negligence case cannot be established. So, not only a loss has to be established, but it has to be substantial (Harvey and Marston, 2009). The rationale behind this is that the loss or injury or the harm caused is the amount of damages which the individual can claim in case of negligence. Moreover, by establishing that a harm or loss has been caused, the individuals can also claim damages for the non-pecuniary injuries, for instance the emotional distress. The causation of the loss also has to be established. In other words, it has to be shown that the loss would not have been caused, if the defendant had not breached the duty of care (Gibson and Fraser, 2014).
If the loss is too remote and not substantial, then the damages are not awarded, even when negligence has been established. Also, the damages are to be such, as are foreseeable. In Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd [1961] UKPC 2, also known as the Wagon Mound case, it was held that the actual cause of fire was too remote. Hence, the defendant was not held liable for the fire damages (Emanuel and Emanuel, 2008).
In the given case, the loss was foreseeable. This was because Trevor was aware that at night time, the chances of falling during the trek were higher and this is the reason he avoided taking treks at night time. And in the past, this has resulted in injury to his clients. So, the loss was clearly foreseeable. Also, due to his failure in exercising the duty of care, Anna was injured.
Hence, in this case, there was both foreseeability of loss, and loss due to the breach of duty of care, which was significant.
The defense which is often cited by the defendants in cases of negligence is contributory negligence (Legal Services Commission, 2016). When an individual fails to apply the necessary duty of care which they owe to themselves, and contribute towards the harm or the loss which resulted as a result of breach of duty of care, and caused negligence, it is the case of contributory negligence (Dongen, 2014). In such cases, the damages which are awarded to the plaintiff are reduced according to their contribution in the losses. In Davies v Swan Motor Co [1949] 2 KB 291, the plaintiff was held liable for damages which resulted as he negligently stood on the lorry’s side, and so the amount of damages, which were awarded to him, were accordingly reduced (E-Law Resources, 2017b).
In the given case, Anna consumed wine from the bottle of wine which she had brought along with her. Trevor had only given the members of tour, water and sandwiches, and no alcohol was provided by him. Moreover, the other members had refused to consume the wine, when it was offered to them by Anna. Anna’s intoxication contributed in her injuries, as she was not at her best during the trek and was a bit tipsy.
Another thing in Anna’s case is that Trevor had specifically asked the members to wear sensible shoes and clothing during the trek. But Anna had changed into high heel shoes, which she had brought as backup. In both the cases, Trevor was not aware of the acts of Anna, regarding her alcohol consumption and her change of shoes. Again, Anna contributed towards her injuries. Applying the case of Davies v Swan Motor Co, by drinking on trek, and wearing high heel shoes, which were opposite of what was insisted upon by Trevor, Anna contributed towards her stumbling incident, which resulted in injuries for her.
So, at two instances, Anna had contributed to her injuries, in a major way. Being drunk on the trek and not wearing the proper gear, contributed in losing her balance. And so, Anna is guilty of contributory negligence.
When a case of negligence is established, the individual can claim for damages, which is in form of monetary compensation (Statsky, 2011). The amount of compensation usually consists of damages for pecuniary injuries, but as highlighted earlier, if the loss is established properly, an individual can claim losses for the non-pecuniary injuries as well.
In the case of Baltic Shipping v Dillon High Court of Australia (1993) 176 CLR 344, a cruise ship sank and the passenger sued for the loss of his belongings, along with the mental distress which resulted due to such loss. Even though the cost of the cruise was not awarded to the plaintiff by the judge, but the defendant was ordered to compensate the plaintiff for the mental distress (Australian Contract Law, 2013).
When contributory negligence is established, then as per the Civil Liability Act 2003 (Qld), the damages which are awarded to the plaintiff are reduced to the amount of the contribution of the plaintiff towards the injury, and this amount is decided by the court. Moreover, section 47 of this act states that at the time of the incident which resulted in injury, if the plaintiff was under the influence of alcohol or was intoxicated then the damages awarded to the plaintiff would be reduced by 25% or more, as per the discretion of the court (Australasian Legal Information Institute, 2017).
In the given case, the negligence of Trevor was established due to the presence of the essential elements of negligence. In other words, Trevor owed a duty of care towards Anna as he took her to the trek and he had to ensure that no harm was caused to her. But, since Anna was injured, there was a breach of duty of care. So, Trevor would have to compensate Anna for the pecuniary losses caused to her. Along with this, Anna could also claim for the mental distress that resulted from the injuries. So, Anna could sue Trevor for the loss that resulted from the injuries, which would be the punitive damages. Since, Anna willfully decided to close her café, she cannot claim for the loss of 12 months’ income, as it has no direct linkage with the negligence of Trevor.
As established earlier, Anna had contributed towards the injuries and so, the amount of damages awarded to Anna would be reduced accordingly. Since Anna was intoxicated, the amount of damages would be reduced by a minimum of 25%. Moreover, due to her contributory negligence due to wearing high heels, the damages would be further reduced. The amount of damages which would be reduced would depend upon the discretion of the court.
Conclusion
From the above analysis, it can be concluded that by wandering off to find a new spot, Trevor had breached his duty of care, which he owed towards Anna, being the member of his trekking tour. Moreover, this resulted in the delay of tour to night time, which made it hard to see the tree root, on which Anna stumbled and fell and this injured her knee. So, Anna could claim pecuniary damages for this loss, as well as, for the mental distress. Since Anna had willfully closed the café to recover damages from Trevor, she cannot claim damages for the loss of income.
But, Anna contributed towards her injury and hence, the damages which would be awarded to Anna would be reduced to a certain amount, as decided upon by the court. So, it is advised to Anna to refrain from initiating a case against Trevor as she would not be able to claim damages for the loss of income, and the pecuniary damages would be reduced by the amount of contributory negligence.
References
Abbott, K., Pendlebury, N., and Wardman, K. (2007) Business law. 8th ed. London: Thompson Learning.
Australasian Legal Information Institute. (2017) Civil Liability Act 2003 – Sect 47. [Online] Australasian Legal Information Institute. Available from: https://www.austlii.edu.au/au/legis/qld/consol_act/cla2003161/s47.html [Accessed on: 25/01/17]
Australian Contract Law. (2013) Baltic Shipping v Dillon High Court of Australia (1993) 176 CLR 344. [Online] Australian Contract Law. Available from: https://www.australiancontractlaw.com/cases/baltic.html [Accessed on: 25/01/17]
Dongen, E.V. (2014) Contributory Negligence: A Historical and Comparative Study. Boston: Brill Nijhoff.
E-Law Resources. (2017a) Vaughan v Menlove (1837) 3 Bing NC 467. [Online] E-Law Resources. Available from: https://www.e-lawresources.co.uk/Vaughan-v-Menlove.php [Accessed on: 25/01/17]
E-Law Resources. (2017b) Davies v Swan Motor Co [1949] 2 KB 291 Court of Appeal. [Online] E-Law Resources. Available from: https://www.e-lawresources.co.uk/Davies-v-Swan-Motor-Co.php [Accessed on: 25/01/17]
Emanuel, S., and Emanuel, L. (2008) Torts. New York: Aspen Publishers.
Gibson, A., and Fraser, D. (2014) Business Law 2014. 8th ed. Melbourne: Pearson Education Australia.
Greene, B. (2013) Course Notes: Tort Law. Oxon: Routledge.
Harvey, B., and Marston, J. (2009) Cases and Commentary on Tort. 6th ed. New York: Oxford University Press.
Kelly, D., Hammer, R., and Hendy, J. (2014) Business Law. 2nd ed. Oxon: Routledge.
Latimer, P. (2012) Australian Business Law 2012. 31st ed. Sydney, NSW: CCH Australia Limited.
Legal Services Commission. (2016) Negligence. [Online] Legal Services Commission. Available from: https://www.lawhandbook.sa.gov.au/ch01s05.php [Accessed on: 25/01/17]
Statsky, W.P. (2011) Essentials of Torts. 3rd ed. New York: Cengage Learning.
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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