Issue:
The issues which can be observed in the case study are-
Rule:
According to the principles of Australian Common law the provisions dealing with the concept of negligence has been depicted in Smoldon v Whitworth & Nolan [1997] PIQR P133, CA. However the legal provisions of negligence in the beginning were established in Donoghue vs Stevenson [1932] AC 562. In the case the claimant has ordered Ginger beer in a café. The beer contained remains of a decomposed snail which was discovered by the claimant after consuming half of the contents. Mrs Donoghue claimed damages from the manufacturer however such claim was upheld as it was required to establish that whether the defendant was negligent in his action. It was required to prove that:
Duty to take care:
In order to establish negligence it is necessary to prove that there was a duty to take care. It is essential to prove that the defended had a duty to take of the plaintiff. However, in order to examine the duty of care Caparo test is applied by the Court. The Caparo test was first applied in Caparo Industries pIc v Dickman [1990] 2 AC 605. The test was conducted with an objective to assess the actions of the defendant which he could foresee as harm caused to others. In this case it was observed that defendant did not owe duty of care as the existence of Caparo was not known to the auditors. Proximity did not exist between the auditors and Caparo.
Breach of duty:
It is essential to establish that breach of duty was caused on the part of the defendant. In order to prove negligence breach of duty is an essential element. The test was applied by the Courts with an objective to determine that whether the defendant has caused breach of the duty owed to him by the plaintiff. This kind of test was first enforced in Anns v Merton London Borough Council (1978) AC 728. In this case due to poor ventilation the haystack of the defendant caught fire. However, the defendant stated that the decision was taken by him in his best judgment. I was held by the Court that the evidences were not enough to support the statements made by the defendant and his actions can be judged by a reasonable person. The objective test was conducted in order to identify that whether the defendant acted negligently or have taken additional care. In this regard, if it is proved that such reasonable person instead of taking additional care of the duty owed to him by preventing any damage then in such cases it will be held that the defendant has caused breach of his duty.
Causation:
Causation is the third essential element in establishing negligence. It is necessary to prove that the damage caused to the plaintiff was as a result of the negligent act of the defendant. In such cases the courts generally apply the “but for” test in order to determine that damage was caused as a result of the negligent act of the defendant. In Mc Williams (Cummings) V Arrol & Co [1962] 1 Wlr 295 it was observed that the plaintiff in this case was the widow of the victim however the victim died while he was working as an employee of the defendant. The victim in this case was working at a sufficient height and in such case the defendant did not provide any safety measures. In this case it was held that there was a statutory duty on the part of the defendant to provide safety measures.
Seriousness of the damage:
The defendant can also be held responsible for the damage caused to the plaintiff if the nature of such damage could be foreseeable by the defendant as a reasonable person could foresee. This essential element was held in Further the test of remoteness can be applied in order to examine the seriousness of the damage and whether such damage could be foreseeable by the defendant. In Smith v Eric s bush 1990 1 ac 831 (hl) such test was applied.
If the principle of contributory negligence is proved then the damages claimed by the plaintiff shall reduce significantly which was held in Jones vs. Livox Quarries Ltd [1952] 2 QB 608. In order to establish grounds of favorable defense the only option available to the defendant is contributory negligence. The element of contributory negligence can be established in situations where the damages caused by the plaintiff are partial and there has been negligence on the part of the defendant as well. In order to establish the element of contributory negligence it is necessary to prove that the plaintiff failed to provide reasonable care in his part. In this regard the amount of damages that has been claimed by the plaintiff shall reduce considerably. However, it is noteworthy to mention here that failure on the part of the plaintiff to take care was established in Gough V Thorne [1966] 1 Wlr 1387. Lack of proper care on the part of the claimant is subjective and is different from the standard of breach of duty was held in Morales V Eccleston [1991] Rtr 151. The case Caswell V Powell Duffryn Associated Collieries Ltd [1939] 3 All Er 722 laid emphasis on the provisions of contributory negligence.
In the given case study it has be assessed that whether Josh Marsh has negligent in his action. In the given case study it can be observed that Josh owns a business of ATV Adventures and attracts lots of customers to make profit out of it. In this regard |Josh had a duty to take care of the vehicle that he used for the purpose of his business. However, it was observed by the customers Johnno and Wahija that almost every part of the vehicle was covered with dirt except the seats. It has been observed that Wahija found the knee guards to be uncomfortable and she was not able to adjust her size. In this regard, it is noteworthy to mention that it was the duty of Josh Marsh to take care of the condition of the vehicle as well as the knee guards.
In the next step it has to be evaluated that whether Josh has caused breach of his duty. In this regard, it can be seen that in the given case study josh was at the duty to take care of the condition of the vehicle which he failed to do. However in the later part it can be seen that each day Josh runs 90 minutes trips per day that is 9AM, 11AM, 1PM and 3PM. This process is quite tiresome and it requires an assistant however Josh in order to make profit has not hired anybody on his behalf. It has been observed that after the adventure John stops at the top of the hill where he shares his experiences with the customers. He lost track of his time and suddenly realized that he had to return at 3 pm. Josh increases the speed of the convoy in order to reach in time which caused serious accident to Wahija and she suffered serious damages. In this regard, it can be stated that Josh has caused breach of his duty.
The third essential element that has to be proved is that whether the damages were caused as the result of the action of the plaintiff. In the present case study it can be seen that Josh has increased the speed of the convoy and it was well known to him that such step could cause serious accident. The nature of the action of Josh was such that it would likely to cause damage. It can be seen that in this case the negligent was wholly on the part of Josh. In order to run this tiresome business he at least needs assistance however he has not hired any employee in order to gain profit. In order to reach the cabin on time he increased the speed of the vehicle and the passengers met with an accident by causing serious injury especially to Wahija.
The fourth essential element is to prove that whether the nature of the negligent act was such as it could reasonable be foreseeable by the defendant. In the present case study it can be observed that john increased the speed of the vehicle to a great extent and opted for a shortcut which was reserved only for experienced drivers. It can be observed that though Josh was a experienced driver, he knew that if the speed of the vehicle is increased considerably it could cause accident and the lives of the customers will be at danger. It can be observed that in spite of having knowledge about the consequences of such step Josh increased the speed of the vehicle because he had to reach the cabin on time. Therefore in the present case study it can be established that Josh was negligent on his part because he could foresee the consequences of his actions as it could be foreseeable by a reasonable person.
It can be observed that in the present case study one particular defense was available to the defendant that is the element of contributory negligence. In the present case study it can be observed that Wahija knew that the knee guards were comfortable and did not fit her however she relied on Johnno as he was a good driver. In this regard, it is noteworthy to mention that if the provision of contributory negligence could be established then the amount of damages claimed by the plaintiff would subsequently reduce. In the present case study, the only defense that is available to John is the ground of contributory negligence. If John is successful in his attempt to establish the fact that Wahija was negligent on her part then the amount of damages if any claimed by Wahija would reduce considerably. It can be stated that there was negligence on the part of Wahija as well.
Conclusion:
In the conclusion after evaluation the abovementioned facts it can be stated that that Josh was negligent in his act and therefore he is liable for the injuries of Wahija. It has been established that Josh has the right to claim damages from Wahija if the principle of contributory negligence is established.
References:
Anns v Merton London Borough Council (1978) AC 728.
Caparo Industries pIc v Dickman [1990] 2 AC 605.
Caswell V Powell Duffryn Associated Collieries Ltd [1939] 3 All Er 722.
Donoghue vs Stevenson [1932] AC 562.
Gough V Thorne [1966] 1 Wlr 1387.
Jones vs. Livox Quarries Ltd [1952] 2 QB 608.
Mc Williams (Cummings) V Arrol & Co [1962] 1 Wlr 295.
Morales V Eccleston [1991] Rtr 151.
Smith v Eric s bush 1990 1 ac 831 (hl).
Smoldon v Whitworth & Nolan [1997] PIQR P133, CA.
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