Whether Paul can sue Wayne for the injuries that are sustained by him under the Civil Liability Act 2003 (Qld)?
In law, every person has a legal duty to carry out his acts with care so that no injury is caused to a plaintiff who is closely associated with him. This is a duty of care and any resultant breach which will cause damage to the plaintiff will hold the defendant negligent in his actions. (Katy & Harder, 2014)
The Civil Liability Act 2003 has adopted this common law principle in its chapter 2 wherein the concept of ‘breach of duty of care’ is discussed. Section 9 of the Act submits that a defendant must take precautions against any harm provided there is foreseeable risk which is significant and the defendant would have taken precautions like a normal prudent man in the like situations. The probability, seriousness of harm, the safeguard applied to mitigate the harm is some of the factors which must be considered before imposing an obligation on the defendant. As per section 11, the harm that is caused to the plaintiff must be because of the result of the breach of duty by the defendant (causation). It is the plaintiff who has to prove that the defendant is in breach of the duty (section 12). (Lawyers, 2017)
However, a defendant cannot be held to be negligent against: (Caxton, 2017)
Inherent risk/dangerous recreational activities – As per section 16, when the plaintiff is taking part in such activities that are dangerous in nature and of such a scope that the risk that is involved in it is inherent, then, there is no duty of care that must be cater by the defendant (Campbell v Hay, 2014). In (Pollard v Trude, 2008), it was held that when one golfer carries out his tasks and thereby hit by another golfer by a ball then there is involvement of inherent risks and there is no duty to provide care. (Caxton, 2017)
At the local golf club, Paul was playing golf. He hit a drive and proceeded to walk along the fairway. He was about 50 meters from Wayne when Wayne decided to hit his golf ball. It was analyzed by Wayne that hitting the ball would be safe because Paul was near the trees that provided some cover. But, Paul was hit in the face.
Now, Paul can sue Wayne under negligence by proving that Wayne has a duty of care against Paul which is not complied with as per adequate standards and which has resulted in causing harm to Paul.
But, Paul can establish that playing golf is a dangerous recreational activity which involves an inherent risk. By, applying the principle in Pollard v Trude , it can be submitted that Wayne has no obligation to provide care towards Paul.
Conclusion
So, Paul cannot succeed if any legal proceedings are brought against Wayne as the activity involves an inherent risk and Wayne is under no obligation to provide ny kind of care against such inherent risk to Paul.
Whether Paul can bring any legal proceedings against the Golf Club for the injuries that are sustained by him?
An exclusion clause is a clause that is rely by one party over another in situation wherein liability arises because of some breach and the relying party can prove that his liability is excluded through the exclusion clause. These are the clauses which are made part of the contract for the benefit of one party at the costs of another.
An exclusion clause is found to be effective only when the same is made part of the contract with the consent of both the parties. Also, the clause must be incorporated before the formation of the contract. If the contract is signed then the clause is binding irrespective of the fact whether the same is read or not. But, in unsigned documents, such as receipt, tickets, it is necessary that the party who is relying on the clause must made reasonable efforts to bring the said clause within the knowledge of the affected party (Darlington Futures Ltd v Delco Aust Pty Ltd, 1986). If no reasonable measure applied, then, the clause has no relevance. (Gillian, 1998)
However, as per section 15, when the risk to be incurred is obvious then there is no duty that is imposed upon the defendant to provide any safeguard (Jaenke & Jaenke v Hinton , 1995) and (Windley v Gazaland Pty Ltd T/A Gladstone Ten Pin Bowl, 2014). Also, even if warning notice is provided unilaterally by the relying party but no reasonable efforts are made to bring the same to the knowledge of the affected party, still, it will not invalidate the warning notices because as per section 15 there is no duty to do the same. (Natasha, 2005)
When Paul was hit by the ball of Wyne, then, he intends to bring legal proceedings against the Golf Club. He believes that the Club should have installed protective fencing to allow players and spectators to safely move without being struck.
The Glof club may rely on the clause that was made part of the score card that established that “This golf club accepts no responsibility for any loss, harm, injury or death howsoever suffered by any person that enters this golf course”.
But, the clause is valid only when reasonable efforts are made by Golf Club to bring the clause within the knowledge of Paul. The clause was printed in very small letters and no reasonable actions are undertaken by Golf club, thus, the clause has no validity.
But, even if the clause is inapplicable, the Golf club has no duty to warn against an obvious risk as per section 15. So, when any player visits any golf club there is an obvious risk that there are chances of sustaining injuries, so, Golf Club is under no obligation to inform for any obvious risk.
Conclusion
The clause was not valid as the same was not brought in the knowledge of Paul by reasonable means by the Golf Club. Even if no efforts are made still Golf club is under no duty to provide any kind of care for obvious risk as per section 15.
Whether Paul can sue for the damages sustained by him? Which amounts can Paul claim as damages resulting from the incident at the Golf Club?
Section 7, sub section 1 of the Act does not allow seeking recovery of damages by way of civil actions. Thus, in order to secure damages, the common law principles that existed in Civil Liability Act 2003 must be construed. (David, John, & Paul, 2003)
However, if damages are to be recovered then the assessment of damages is to be construed as laid down in Chapter 3 of the Act. It deals with claim of damages which results from personal injury and the like provisions under the Personal Injuries Proceedings Act 2002.
Section 52 submits that no awards can be provided by the court for punitive, exemplary or aggravated damages which arise under personal injury claims. As per Section 54, the loss that is sustained because of the loss in earnings cannot be granted in totally and is only up to 3 times the average weekly earnings per week. Any future losses inclusive of future gratuitous services can be awarded up to discount rate of 5%. As per section 53, a defendant can take a defense by submitting a written notice that the plaintiff has not taken adequate measures to mitigate his own loss. If general damages (damages for suffering, pain, loss of expectation in life, loss of amenities in life, disfigurement) are awarded then there are no provisions for the payment of interest.
Also, if the injuries are caused to the plaintiff is mainly because the plaintiff has failed to take care of his own safety, then, as per section 24, the courts are capable to reduce the damages of the plaintiff by 100% if the circumstances demands justice and equity. (Caxton, 2017)
When Paul was hit, he did not take any treatment for his injuries. After two weeks his eye deteriorated and there is some permanent damage to his left eye. It was revealed by a specialist report that if Paul would have received treatment within 48 hours, he may have avoided permanent damage.
Because of the loss of his eye, Paul can no longer
Paul wants to claim his future medical expenses, 10 years’ worth of lost income and $50,000 loss from sale of his investment property.
It is submitted that Paul can seek damages for punitive, exemplary or aggravated damages under section 52. He can seek loss of his income under section 54 of the Act which can be up to 3 times the average weekly earnings per week. He can also seek general damages.
But, since Paul has himself contributed to his own loss thus, the club can mitigate its liability 100%
Conclusion
Thus, Paul was capable to see damages but since he himself was negligent thus his claim can be reduced upto 100%.
Campbell v Hay (2014).
Caxton. (2017). Defences to a Negligence Action. Retrieved May 19, 2017, from Queens Law Hand Book: https://queenslandlawhandbook.org.au/the-queensland-law-handbook/health-and-wellbeing/accidents-and-injury/defences-to-a-negligence-action/
Darlington Futures Ltd v Delco Aust Pty Ltd (1986).
David, M., John, D., & Paul, T. (2003). Civil Liability Reform and Volunteer Protection in Queensland – Working Paper No. CPNS 18 . Queensland University of Technology 2003 .
Gillian, B. (1998). Exclusion Clausesc- Drawing the line. 2 Mac LR , 27.
Jaenke & Jaenke v Hinton (1995).
Katy, B., & Harder, S. (2014). Remedies in Australian Private Law. Cambridge University Press.
Lawyers, P. I. (2017). What Is A Breach Of Duty Of Care In A Personal Injury Claim Under The Civil Liability Act 2003? Retrieved May 19, 2017, from The Personal Injury Lawyers: https://www.thepersonalinjurylawyers.com.au/news/2017/2/14/what-is-a-breach-of-duty-of-care-in-a-personal-injury-claim-under-the-civil-liability-act-2003
Natasha, S. (2005). Negligent liability in sport. Sports Law eJournal, Art. 2 .
Pollard v Trude (2008).
Windley v Gazaland Pty Ltd T/A Gladstone Ten Pin Bowl (2014).
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