Whether Molly has any right in against of Phillip Island eco-resorts. Further, this is to check that that whether Phillip Island eco resorts can use any defense in against of Molly.
Under Tort Law, some people owe a duty of care with respect to others. The duty of care is a burden, where the person who owes the same is required to act reasonably and in a responsible manner with respect to others. Negligence is another aspect of Tort Law. This refers to a situation where a person fails to perform the duty of care (Laws, 2018). To held a person liable under Tort Law, the breach of the duty of care is not enough but certain other conditions also need to be satisfied. According to the decision given under the case of Donoghue v Stevenson [1932] UKHL 100 , it has been concluded that following elements must be there in the cases of negligence under Tort law:-
Defense:- The excuses which a defendant can use against the claimant in order to ignore or reduce his/her liability. Contributory Negligence is one of the defense provides under Tort Law that refers to a situation where in addition to the defendant, the claimant also fails to take proper care of himself/herself. In the cases of contributory negligence, the liability of the defendant reduced up to the level of claimant’s fault (E- Law Resources, 2018).
In the given case, the person named Molly was a guest of Phillip Island eco-resort. In the resort, a beach was also there and according to the brochure of the report the same perfect place for a sunbath. When Molly went that side, she saw a deep rock pool there. In addition to this, she also noticed that by climbing up some rocks, she could reach up to the deep rock pool. Molly was not the single person there as many of others were already swing into a deep rock pool. Molly saw a rock at the edge of the pool and found the same perfectly suitable for diving. As soon as she tried doing so, she hits her head with a submerged rock. She did not notice this rock earlier. Cause of hitting with submerged rock; she suffered from several spines and head injury.
Now, moving towards the requirements of Tort Law, the resort owed a duty of care in this case. It was the duty of resort to act in a reasonable manner towards Molly. It was the duty of resort owner to place some sign board stating about danger included with the swimming in a deep rock pool. As the evidence proved it that resort staff was trained to advise and informed the guest about the danger of deep rock pool, this is to state that by not informing any such thing to Molly, the resort has breached the duty of care. First two conditions of the Donoghue v Stevenson case are already satisfied. Now, moving towards the third and fourth condition, this is to state that Molly has suffered from physical injury and reason of the same was negligence of resort staff.
However, resort owner can take the help of contributory negligence as Molly was also required to ask about safety measure but she did not ask anyone and moved for the swimming.
Conclusion:
To conclude the issue, this is to mention that yes, Molly can sue to Phillip Island eco-resort for the negligence. Further, the resort owner can take the defense of contributory negligence against Molly.
What rights, obligation restaurant owner, do have in respect to Larry and other customers?
Section 14B of the Wrongs Act 1958 (Vic) says that a person is responsible to check that any visitor of his/her premises must not get injured for any reason related to the state of premises (Austlii, 2018). Some of the factors such as seriousness, the likelihood of harm, level of intoxication decide that whether the duty of care by an occupier (licensee) has been breached or not. Liquor Control Reform Act 1998 (Vic) is an act of the state that provides the rights and obligation of a licensee who takes license to serve alcohol to the public in his/her premises. According to the provisions of section 108 of this act, a licensee needs to ensure that he/she does not serve the alcohol to any of the guests more than the level of intoxication (legislation.vic.gov.au, 2018).
Further, under common law, it becomes the liability of an occupier of the property to act reasonably in respect of the visitors. Tort is a branch of common law that put this responsibility. Every occupier of a property owes a duty of care in respect to the visitors for his/act and for the act of other visitors. According to the decision given in the case of Chordas v Bryant (1988) 92 FLR 413, a licensee is held responsible if the cause of a visitor (Guest), the other person suffers from an injury in the premises of licensee. However, it was also given in the decision that the licensee will only be held liable if the licensee could foresee the act of guilty visitor.
In the provided case, the restaurant owner had a license to serve the liquor to the customers and hence the provisions of the Liquor Control Reform Act were applicable to the restaurant. Larry, One of the clients of the restaurant was habitual of high drinking. He was used to getting drunk so quickly. After the drink, he often enters into the argument with restaurant staff and other customers of the restaurant.
Applying the provisions of the Liquor Control Reform Act, the licensee was required to serve the alcohol to the customers of the restaurant. Further, under section 108 of the act, it was the right and obligation of the licensee to stop serving alcohol to the person after the danger state of intoxication. Here in the case, the licensee was required to stop serving any more liquor to Larry as he was losing his control and falling in the argument with office staffs and other customers. As the licensee failed to take reasonable steps to prevent the risk and due to which one of the customers has suffered from injury hence the same will be held liable to pay the damages to victim party.
Being the licensee of the restaurant and occupier of the premises, the restaurant owner owed the duty of care in respect to Larry and other customers of the restaurant. Applying the provisions of the case of Chordas v Bryant, the restaurant owner will be held liable because the risk was foreseeable. Larry did not lose his control for the first time and licensee had reason to believe that one day, he can prove more injurious to either restaurant staff or to any other customer.
Conclusion:
The licensee was required to take reasonable care in respect to Larry and other customers and as the same failed to act responsibly, will be held liable to pay the damages to another customer. The licensee would have no rights with respect to the other customer, as the other customer was not on guilty. The licensee can further ask for the reimbursement of damages from Larry.
References:
Austlii. (2018). Wrongs Act 1958 – Sect 14b. [online] Available from: https://classic.austlii.edu.au/au/legis/vic/consol_act/wa1958111/s14b.html [Accessed on 12/10/18]
Chordas v Bryant (1988) 92 FLR 413
Donoghue v Stevenson [1932] UKHL 100
E- Law Resources. (2018) Defences. [online] Available from: https://e-lawresources.co.uk/Defences-in-tort-law.php [Accessed on 12/10/18]
lawgovpol, (2018). Case study: donoghue v. Stevenson (1932). [online] Available from: https://lawgovpol.com/case-study-donoghue-v-stevenson-1932/ [Accessed on 12/10/18]
Laws. (2018). Negligence tort at a glance. [online] Available from: https://tort.laws.com/negligence-standard-of-conduct/negligence-tort [Accessed on 12/10/18]
legislation.vic.gov.au. (2018) Liquor Control Reform Act 1998. [online] Available from: https://www.legislation.vic.gov.au/Domino/Web_Notes/LDMS/LTObject_Store/LTObjSt6.nsf/DDE300B846EED9C7CA257616000A3571/6E1E5CD172B1057DCA2578DB001BA615/$FILE/98-94aa056%20authorised.pdf [Accessed on 12/10/18]
Liquor Control Reform Act 1998 (Vic)
Wrongs Act 1958 (Vic)
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