The tort of negligence is defined as a careless conduct for which the aggrieved party may initiate a legal action against the wrongdoer who failed to exercise a duty of care that he owed to the aggrieved person. In order to succeed in a negligence action, it is pertinent for the plaintiff to establish the three essential elements of negligence based on the balance of probabilities. The three essential elements are enumerated as below:
Duty of care- it is a duty to avoid any acts or omissions of acts that may cause injury to others. This principle has been derived from the case of Donoghue v Stevenson [1932] AC 562, and is also known as the ‘neighbor principle’. The principle states that an individual must exercise care to avert any action or omission that can be reasonable foreseen to be likely to cause injury to the neighbor. The term ‘neighbor’ refers to any person who becomes directly and closely affected by the action or omission of the wrongdoer. The plaintiff must establish the fact that at the time of the alleged negligence, the defendant owed a duty to take care of the plaintiff.
Breach of the duty of care – According to section 9 of the Civil Liability Act 2003, a person is not held liable for failing to take necessary safety measures against any risk of harm unless such risk was reasonably foreseeable. The defendant shall be liable if the risk was significant and under similar circumstances, any prudent person would have taken such safety measures to avoid the risk of harm. If it is established that the defendant owed a duty to take care of the plaintiff at the time of the alleged carelessness and that the defendant has failed to exercise his duty of care, he shall be held liable for committing the tort of negligence as was observed in Chapman v Hearse [1961] 106 CLR 112.
The court shall determine whether a relationship existed between the defendant and the plaintiff and that the defendant owed a duty to take care of the plaintiff. The court shall also take into consideration that whether defendant could foresee the risk of harm that might occur to the plaintiff if the defendant fails to take reasonable care. In Wyong Shire Council v Shirt [1980] 146 CLR 40, the court considered the factor whether any prudent person would have foreseen the risk of harm involved in the defendant’s conduct.
Damages- The plaintiff must establish that damage suffered or the injuries sustained is the result of the negligent conduct of the defendant who has failed to exercise duty of care that he owed to the plaintiff. The plaintiff must also establish the proximity of the damage suffered that is, the damage caused must be a direct result of the defendant’s actions or omission. The damage suffered or the injuries sustained by the plaintiff must not be remote. Section 11 of the CLA 2003 states that in order to determine that a breach of duty caused harm to the plaintiff, there must be a factual causation, that is, the breach of duty caused the harm.
Further, in order to determine the possibility of liability, the court shall deem why and whether or not the responsibility of harm should be imposed on the person who has committed a breach of his duty. Furthermore, section 12 of the Act emphasizes on the fact that the burden of proof is always on the plaintiff who must establish the fact that the defendant is liable for breach of duty or any another relevant fact related to the issue of causation based on the balance of probabilities.
In the given scenario, the relevant parties to the case would be Annie and Brett. Here, Annie is the plaintiff and Brett is the defendant who owed a duty of care to Annie. The onus of proof is on Annie who, in order to prove that there was a duty of care, must establish the fact that there was a relationship between her and Brett and that Brett has failed to exercise the same. She must also establish that Brett could reasonable foresee the risk of harm involved in his conduct that might likely to occur but he failed to avoid such risk of harm due to his negligence.
In the given case, in order to succeed in a negligence action, Annie must establish that at the time of alleged carelessness, the defendant owed duty of care to plaintiff and he has failed to exercise duty of care. He could not avoid the risk of harm that any prudent person could have reasonably foreseen and taken precautions to avert the same. Further, she must also establish the fact that the damage suffered and the injuries sustained by her is directly the result of Brett’s omission to take care of the awful mess. The proximity cause of the damage suffered by her was due to the conduct of Brett’s negligence.
According to the given case, Brett was the manager on duty but had to help behind the bar as one of the bartenders called in sick. When Tavern, a glassie, informed Brett that someone threw up in front of the main door but he has cleared the mess, as it was pretty awful. As Brett was the manager, he thought he better check if the mess was properly cleaned, but he saw Candice, went to serve her, and forgot about the mess. Here, being the manager of Tavern, he owes a duty of care to all the guests that come there and he is under statutory obligation to ensure the safety of the club and its guests. When David informed him about the mess in front of the main door, he should have personally checked if it as cleaned. Somehow, he got busy with Candice and forgot about it. Annie was drunk and slipped on the mess and sustained fractural injuries and it was so severe that she will have to undergo a surgery.
The forensic investigation report stated that someone spilled cream onto the mess on the floor, which made it double slippery. When Brett was informed about the ‘awful mess’ he should have checked it immediately as it could be reasonably foreseen that anyone could slip on the mess and sustain injuries. Moreover, there was another bar attendant to serve Candice and Brett should have checked on the mess. However, he failed to exercise duty of care that he ought to have as per the law.
According to section 9 of the CLA 2003, a person who fails to take precautions against any risk of harm is not liable for contravening the duty of care unless such risk was significant or reasonable foreseeable by any prudent person or any diligent person would have taken precautions to avoid the same. In order to determine whether any reasonable person would take safety measures against the risk of harm, the court must deem whether such person was aware that harm might occur if care is not taken. In the given case, any prudent person could reasonably foresee that the risk of harm that may occur if precaution is not taken to avoid the same.
According to section 11 of the CLA 2003, the breach of duty must be the factual causation of the harm and the peril of harm must be reasonable foreseeable by the defendant as was observed in Chapman v Hearse [1961] 106 CLR 112. In the given case, Brett owed a duty of care to Annie as she was guests in Tavern and he was on duty as the manager. He failed to avoid any conduct that would likely cause injury to others, and the risk of harm involved in his conduct can be reasonably foreseen by ant prudent person who would have avoided such conduct or omission in order to prevent the plaintiff from sustaining injuries. Therefore, his breach of duty of care was the factual causation of the injuries sustained by Annie as stipulated by law.
In order to succeed in the legal action against Brett for negligence, Annie must establish the fact that due to the breach of duty committed by Brett, she sustained severe injuries. This implies that she shall have to prove that the damages suffered and the injuries she sustained was the directly and closely related to Brett’s breach of duty. The court shall determine the proximity of damage suffered by the plaintiff as a result of the conduct of the defendant. It was held in Nagle v Rottnest Island Authority [1993] HCA 76 that there was a proximity relationship between the defendant and all the visitors who were on lawful visit to the island and resorted to Basin for swimming, with respect to any risks of injury foreseeable by any reasonable person, to which the visitors might be exposed. Therefore, damage caused and the conduct of the plaintiff must be direct and not remotely related.
If Annie succeeds in establishing the fact that Brett owed a duty to take care towards her and that he has failed to implement the standard of care, committing a breach of such duty, which has caused damages to her, she would be entitled to statutory remedies. The Civil Liability Act 2003 defines injuries as personal injuries under section 51, which include pain and suffering; loss of facilities of life; disfigurement and loss of expectation of life. The court grants damages in the form of special damages and General damages. Special damages are awarded to cases where the aggrieved person has suffered damages amounting to loss of earnings. General damages are awarded to cases where the damage suffered by the aggrieved person cannot be measured such as damages amounting to loss of earning capacity.
In the given case, Annie sustained fractural injuries due to which not only she will have to undergo a surgery but she also had to quit her part-time job at Safeway for at least six months. Therefore, she can apply for compensation for the damages sustained by her due to the breach of duty of care committed by Brett.
According to the Australian law, liability under tort of negligence arises where the defendant owes a duty to take care and he fails to exercise the same as a result of which the plaintiff suffers damages. The damage borne by the plaintiff must be a direct result of the Defendant’s conduct and that it must be the proximate cause as well. The violation of duty of care must be necessary condition for the harm involved in the conduct of the defendant. In order to determine whether the defendant has committed a breach of the duty of care, the court shall deem that the risk of harm involved in the conduct or omission of the defendant is reasonable foreseeable by any prudent person. The court shall also consider the fact that whether any prudent person would have taken precautions to avoid any such action or omission in order to prevent the plaintiff from sustaining any injuries had the person been in the same position under similar circumstances.
In the given case scenario, Brett entered into a proximate relationship with the guests of Tavern and Annie being one of the guests of the club, he owed a duty of care to her with respect to any foreseeable risks of harm or injury to which the guests including Annie might be exposed. Therefore, as he owed a duty to take care, he was aware of the fact that there was an awful mess in front of the main gate and he was conscious of the peril of harm that may arise if such mess was not cleaned. Despite being ware of the risk of harm, he failed to take proper safety measures to evade the risk and his omission to take precautions caused injuries to Annie. Therefore, Annie is entitled to receive special damages for sustaining personal injuries and for the damages amounting to loss of earnings.
References
Donoghue v Stevenson [1932] AC 562
Chapman v Hearse [1961] 106 CLR 112.
Wyong Shire Council v Shirt [1980] 146 CLR 40
Nagle v Rottnest Island Authority [1993] HCA 76
Baker, Jodie. “Causation laws should recognise loss of chance.” Precedent (Sydney, NSW) 133 (2016): 58.
Cusimano, Gregory S., and Michael L. Roberts. “Negligent Entrustment and Supervision.” Alabama Tort Law 1 (2015).
Foley, Melissa, and Martin Christensen. “Negligence and the Duty of Care: A Case Study Discussion.” Singapore Nursing Journal 43.1 (2016).
Goldberg, John CP, and Benjamin C. Zipursky. “The Restatement (third) and the place of duty in negligence law.” Vand. L. Rev. 54 (2001): 657.
Goudkamp, James, and Melody Ihuoma. “A tour of the tort of negligence.” (2016).
Green, Leon. “The Duty Problem in Negligence Cases.” Columbia Law Review 28.8 (1928): 1014-1045.
Harari, Abraham. The place of négligence in the law of torts. Law Book Co. of Australasia, 1962.
Luntz, Harold, David Hambly, and Robert Alexander Hayes. Torts: cases and commentary. Butterworths, 1992.
Martin, Kenneth. “Topical matters pertaining to the tort of negligence-the attribution of blame.” Brief 43.7 (2016): 38.
Purnell, John. “The rarity of punitive damages.” Precedent (Sydney, NSW) 130 (2015): 42.
Spamann, Holger. “Monetary Liability for Breach of the Duty of Care?.” Journal of Legal Analysis (2016): law009.
Wright, Richard W. “The New Old Efficiency Theories of Causation and Liability.” Journal of Tort Law 7.1-2 (2014): 65-95.
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