Discuss about the Ethics and Law for Australian Nurses.
The present problem has raised several legal concerns which can be resolved only after the brief understandings on the law of negligence, the defence that are available and the consequences that are faced by the parties.
In the given scenario, there are two parties who are involved, that is, Trevor and Anna. Anna is the aggrieved person and is the plaintiff, whereas, Trevor is the presumed defaulter and is considered as a Defendant. It is asserted by Anna that Trevor owns a duty under the law of negligence which is breached by causing her injuries and thus Trevor is negligent and must face consequences. Anna has to prove all the essentials of the negligence to hold Trevor accountable for her losses.
Thus, the main issues that arose are:
1.Whether Trevor is answerable for Anna’s losses?
2.Whether Trevor can protect himself?
3.What are the consequences that must be faced by Trevor?
These issues can be resolved after having a brief analysing on the law of negligence and its application on the given factual scenario.
The law of negligence is the common law principle which was developed in 1932 in Donoghue v Stevenson (1932). In this landmark judgment, Lord Atkin has made a precise and succinct observation that every manufacturer has a legal duty to produce articles of such nature so that it does not causes any kind of injury to his consumers who are his neighbours. This English case law is now applied in Australia as well and the law of negligence has developed with all leaps and bounds since then.
However, if any plaintiff desires to prove any defendant negligent in his actions, then, there are three prime essentials which must be proved by him. The same are duty of care, breach of such duty of care and the damages.
Anna holds the burden of proof to prove all these essentials against Trevor to hold him negligent for the injuries of Anna.
Duty of care – The principle of duty of care establishes that any action doer has the legal responsibility to take all precautionary measures while undertaking any act so that no other person is affected negatively because of such actions (Bryan v Maloney (1995). This legal obligation of care is implied in nature and must be honoured by every action doer. (P Latimer, 2012)
In the given case, Trevor was running a touring agency wherein he conducts the walking tour of up to six trekkers @ six hours a day (daylight). So, as per the concept of duty of care, Trevor owns a duty of care against all of his trekkers so that no injury is caused to any of his trekkers because of the actions of Trevor.
But, does this duty of care imposed upon Trevor have any requirements. The answer is yes.
In the law if negligence, a defendant is only obligated to fulfil his duty of care provided there are presence if two ingredients, they are, the neighbourhood principle and the reasonable forseeability principle.
The principle of neighbourhood establishes that the defendant has an obligation to provide only to those persons who are his neighbours. A person is considered to be the neighbour of the defendant when they are very close and are in the relationship of proximity (Gala v Preston (1991). That the acts of the defendant will directly affect the person and then such person is called the neighboured of the defendant. (C Witting, 2007)
In the given scenario, Anna was one of the trekkers of the group which Trevor took for trekking. Thus, Anna has to conduct herself on the trip as per the directions of Trevor. Thus, any misguidance by Trevor will affect the interest of Anna directly. So, this is the legal duty of Trevor to conduct his trekking in such a manner so that no injury is caused top Anna. So, Anna is in direct and close relationship with Trevor and is the neighbour of Trevor.
However, apart from the principle of neighbourhood there is yet another principle which must be established in order to hold the defendant obligated with the duty of care. This is called the principle of reasonable forseeability. Every defendant is imposed with the legal duty of care only against those impacts or outcomes which he foresees reasonably like a normal prudent man in the like situation (Burnie Port Authority v General Jones [1994]. If the defendant cannot foresee the impacts then there is no legal duty of care upon him. (Tomasic Et.al, 2002).
In the given scenario, Trevor is aware that he is taking clients for trekking. He is also aware that the trekking must be carried on in the day light only as there was accident which took place in the night. Also, he is aware that there are chances of injuries that might take if the trekking is not carried out adequately. Thus, he can foresee the impacts of the trekking and thus the principle of reasonable forseeability is established.
So, there is presence of the principle of reasonable forseeability and neighbourhood principles, thus, Trevor owns a duty of care against Anna and must take all precautionary steps so as to avoid any injury to take place.
But, thus duty of care is not rightly comply with by Trevor and is submitted herein below.
Breach of duty – the second element to prove negligence on the part of Trevor is that the duty of care is not fulfilled by him and the obligation is on Anna is to prove the same.
The duty of care is considered to be violated by the defendant when the duty that he must fulfil is not followed by him as per the requirements and standards. Normally, every protection that must be provided to the plaintiff varies depending upon the circumsttbces and thus the level of care also varies and is contingent upon the circumstances (R v Patel [2010]. Higher the gravity of danger requires higher protection and care and vice versa. When the level of care provided by the defendant is not met with the required level of care, then there is breach on the part of the defendant. (Atkins et al., 2014)
In the given scenario, Trevor was taking Anna for the walk. Now, it is his duty to provide care to Anna as per the desired level knowing the fact that injuries might take place if adequate care is not provided. In order to provide care he asked Anna to wear sensible clothing’s and shoes for the walk. E also specified that all the walks must be completed during day light because the night trips has caused injuries to clients. He provided adequate facilities to Anna by providing sandwiches and water.
But, the level of care that Trevor has provided fall short of the required level of care and thus there is breach of care on his part. This is because, Trevor left the walkers alone during the break to scout a new location and he took much time to return as was anticipated by him. The team had to return after sunset when the forest was dark. He also returned late because he observing the rare Marbled Frogmouth perched in a tree. All these actions of Trevor were mot what is expected from him as he must have acted moiré cautiously and carefully. However, he acted in a very non-diligent manner and thus the level of care required is not met by him. All these incidents establish that Trevor is in breach of duty of care.
However, in order to hold Trevor liable for negligence, Anna has to prove that the injuries that are sustained by her are because of the breach of duty by Trevor.
Damages – To hold any defendant negligent, it is very necessary to prove that the plaintiff must have sustained damages because of the breach of duty by the defendant. But, the damages which are suffered by the plaintiff are considered to be damages incurred as per the law of negligence provided the elements of remoteness and causation are proved.
The concept of remoteness establishes that the damages that are sustained by the plaintiff are not remote in nature but is reasonably foresee by the defendant. A defendant is answerable for only those damages which are not remote (Carter V Walker (2010). (McKendrik & Liu, 2015)
In the given case, Trevor is aware that if he will not return during the day and if the groups will trek during night then there are chances of injuries. In the given scenario, the injuries sustained by Anna were reasonably predictable by Trevor as if she will return and trek during night then there are huge chances of injuries that might sustain.
Also, the defendant is negligent only when the losses that are incurred to the plaintiff are because of the acts of the defendant alone (Naxakis v Western General Hospital (1999). There must be link amid the acts of the defendant and the loss of the plaintiff. (Prue V, 2000)
In the given scenario, the loss that is caused to Anna is directly because of the breach of duty by Trevor. If Trevor had returned with the trip during day light then the chances are there that the injury that is caused to Anna might have not taken place.
Thus, Trevor is held to be negligent in his actions.
But, every defendant has the chance of protect him by availing the benefit of defenses available in the law of negligence. One such defense is the defense of contributory negligence.
Contributory Negligence – As per the defense of contributory negligence, if the defendant can prove that the injury that is caused to the plaintiff is not by the negligent actions of the defendant alone, but, the injuries that are sustained by the plaintiff has also incurred because the plaintiff himself has contributed by his own actions which has resulted to her own harm (Kalokerinos v Burnett [1996]. Thus, both the defendant and the plaintiff have contributed by their actions to the loss of the plaintiff.
In the given scenario, Trevor has every right to take the defense of contributory negligence. This is because, Trevor has made crystal clear that the trekkers must wear sensible clothing. But, Anna wore shorts and shirt which is not appropriate for trekking. Also, she was wearing running shoes and not trekking shoes. Further, later during the trekking, she wore her heals in place of her running shoes. Also, she brought a wine bottler and during the midpoint she consumed the wine. She drank half bottle of wine making her not fit for the trekking. These actions of Anna has made her tumbled and injured her knee.
These acts of Anna have contributed to her own loss and thus Trevor can take the defense of contributory negligence.
So, Trevor will share the liability that is sustained by Anna. But, Trevor is not responsible for the loss of her income because of closing down of her cafe because such loss is not because of the negligence on the part of Trevor.
It is suggested to Anna that she can easily sue Trevor under the law of negligence berceuse the legal duty of care that is imposed upon Trevor is not comply with by Trevor and which has contributed to injuries that are sustained by Anna.
But, Trevor can take the defence of contributory negligence because the acts of Anna has contributed to her own loss and thus Trevor will share the liability along with Anna contribution.
But, Trevor is only answerable for her injuries and not for her income loss because of closing done of cafe because such loss is too remote to predict.
References
Books/Articles/Journals
A Freilich (2000) Contributory Negligence and Breach of Contract: The Implications of Astley v Austrust Ltd. Vol 29.
Atkins et al. (2014) Ethics and Law for Australian Nurses. Cambridge University Press.
C Witting, ‘Tort Law, Policy and the High Court of Australia” [2007] MelbULawRw 23.
McKendrik & Liu (2015) Contract Law: Australian Edition. Palgrave Macmillan.
P Latimer (2012) Australian Business law, CCH Australia Limited.
R N Moles (2016) Law Reports, McAlister or Donoghue (Pauper) v. Stevenson (1932).
Tomasic Et.al, ‘Corporations Law in Australia’ (2002). Federation Press.
Vines P, (2000) ‘ UNSWLawJl 25.
Case laws
Bryan v Maloney (1995).
Burnie Port Authority v General Jones [1994] HCA 13.
Carter V Walker (2010).
Donohue v Stevenson (1932).
Gala v Preston (1991).
Naxakis v Western General Hospital (1999) 197 CLR.
R v Patel [2010] QSC 68.
Kalokerinos v Burnett [1996].
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