When a person fails to take appropriate care and causes damages or injury to others it results in negligence. The plaintiff has to show that the defendant did not observe care which a reasonable person would have done and such actions resulted in injury. Thus when a person does not take reasonable care in relation to his acts which would have been taken by a prudent individual in similar situations, and in addition such actions makes another person suffer damage or injury then it initiates a claim for the tort of negligence. In the case of Donoghue v Stevenson 1932 AC 522 the judge ruled the definition of negligence as harming the neighbor who has a duty of care owed to him. The case is the land mark case in the area of negligence and has provided the famous neighbor principle. According to the principle even if there is no contractual relationship between the parties one can be sued by the other due to his actions. The burden of proof is on the plaintiff who has to establish before the court that the defendant violated his duty beyond reasonable care. The case also provided three elements which have to be satisfied to make a successful plea for negligence.
The fourth element is to determine the damages caused to the plaintiff which is the principle of remoteness.
A legal obligation which is put upon a person stating that he has to take a reasonable standards of care while doing an act which may foreseeably cause injury to any other is known as duty of care. In order to proceed with a claim of negligence it is the initial elements which has to be established. The plaintiff must be capable of proving that the duty of care which is imposed by law existed between the parties. It has to be observed that the duty has been put upon the person through the operation of law and there is no direct relationship such as contractual existing between the parties however they come into a relationship through the provisions of common law. The duty may be taken as a formation of social contract which provides for responsibility which a person owes towards other person in the society. The duty of care often arises from the jurisprudence of common law. However there is a reasonable limit which the court observes while determining the duty of care, thus a person cannot be held liable indefinitely for every actions which occurs.
In Australia the duty of care is analyzed differently from the British approach which observes the proximity element rather the Australian Courts indentifies any existing case were the duty has been established to determine the duty in the present case Perre v Apand (1999) 198 CLR 180, 217. For instance a school would automatically have a duty of care towards is students while they are at school. In other circumstances it has to be established by the plaintiff that the harm from the action of the defendant was foreseeable reasonably. In such cases the salient features test is conducted to analyze the duty. These features include whether an indeterminate liability would be created if the duty is imposed, an unreasonable burden on the defendant would be imposed, and the extent of the vulnerability of the defendant for instances their ability to guard themselves and the extent of information about the probability and degree of harm with the defendant. Another test for identifying the duty of care is provided through the case of Caparo Industries Plc v Dickman [1990] 2 AC 605 known as the caparo test. The test also provides similar principles which have been discussed above.
Thus in this case it is already like in situation of a school and teacher it is evident that charlen owes a duty of care towards Skype. This is because she is the student of Charlen and the injury caused to her has been suffered during the classes. Further it was reasonably foreseeable for charlen to determine that any negligence on her part could significantly case injury to her students. Imposing the duty of care on her would further not subject her to any unreasonable liability. The requirements which are provide by the Civil Liability Act section 27-33 in relation to the duty of care have also been satisfied. Thus the first elements in relation to the tort of negligence can be established.
This section of the report will find out whether the duty of care established in the previous section has been violated. Where a person is not able to observe the reasonable standard of care which is provided by law a breach of duty would deemed to be exist. After, establishing a duty of care it has to be shown by the plaintiff that the duty had been breached by the defendant. Generally an objective test is conducted to point out the breach in the duty of care. The famous case of Vaughan v Menlove (1837) 3 Bing. N.C. 467 provides the objective test to analyze the breach. According to this test the care which is to be observed by the defendant in order to minimize the risk of the harm is compared to the actions of an imaginary reasonable person in the similar situations. However this is not the situation in every case as provided in the case of Wilsher v Essex [1988] 1 AC 1074. When the wrong doer is a professional his or her actions are considered to be reasonable or not by comparing them to another professional in the same area.
In the existing circumstances Charlene was aware of the fact that the place where the yoga classes were conducted was not suitable to hold on to students more then 30. Knowing the fact she invited her batch for Tuesday on Thursday which raised the number of students in the place to 4o and it became difficult for her to manage. Exclusion clause which Charlene was not correct as no reference to the exclusion of liability was made to it. Further if there is any negligence in the yoga classes she would be personally liable as she has no public liability insurance. The actions of Charlene would be compared to a professional yoga trainer as she has a certificate IV in yoga. In addition she did not take reasonable steps to ensure that the tea was of a reasonable temperature which does not cause significant injuries in case of any accidents. For her convenience se did not use the vinly and provided socks and rubber shoes to the students without letting them know for about its purpose. Thus it can be provided that the standard of care which was taken by Charlene was not as good as what a professional would have taken under the same circumstances. Therefore she has breached the duty of care owed by her to Skype.
After the establishment of the breach in the above section the final element which has to be analyzed is the actual harm. The test which determined whether causation is present in the claim is known as the “but for” test. The test had been established through the case of Barnett v Chelsea & Kensington Hospital 1969 1 QB 428 . As per the test the harm has to be a result of the action. If there was no wrong action then no harm would have been caused. In case the harm would have been caused if the act was not committed then the claim for negligence would not exists. In the provided circumstances Skye would have not been hurt if the floor was not slippery, if the class room was not crowded and the tea was of a reasonable temperature. As these are the very circumstances in relation to the breach of duty discussed above the element of causation is satisfied in this case.
As per the rules of damages the aggrieved party has to be compensated for any loss which arises to him because of the negligent Act. However the compensation which is to be provided to the party must be limited and must follow a direct damages rules as provided by the case of Smith v The London and South Western Railway Company 1870 LR 6 CP 14. In the present circumstance it is foreseeable that the harm caused to a Skye may result in loss of employment and severe injury. Thus Skye is entitled to losses in relation to loss of employment and injury suffered by her.
Contributory negligence is a form of defense which can be used by the defendant to partially or wholly defeat a claim for negligence. As provided by the case of Revil v Newbery 1996 2 WLR 239 the court determines the level of contribution made by the plaintiff to the injury. In this case Skye was intoxicated and she did not wear the shoes provided by Charlene thus the court would take into account this matter to decide the percentage of damages.
References
Barnett v Chelsea & Kensington Hospital 1969 1 QB 428
Caparo Industries Plc v Dickman [1990] 2 AC 605
Donoghue v Stevenson 1932 AC 522
Revil v Newbery 1996 2 WLR 239
Smith v The London and South Western Railway Company 1870 LR 6 CP 14
Vaughan v Menlove (1837) 3 Bing. N.C. 467
Wilsher v Essex [1988] 1 AC 1074.
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