Discuss about the Tort Law for Civil Liability Act.
The provided scenario mainly deals with the tort of negligence and its defense which is Contributory negligence. The tort occurs when one person is injured due to a negligent action of another person. This paper identifies the issue of the provided scenario, discusses the relevant rules in relation to the scenario through case laws and statutory provisions and then applies them to the facts of the scenario to come to a justified conclusion.
The main issue which has to be determined in this case is whether Anna is eligible to make a successful claim against Trevor for the tort of negligence and if yes to what extent can damages be provided for her. For the purpose of the study Anna is the plaintiff and Trevor is the defendant.
When a person has a duty of care towards another person and harm is caused to him due to the act or omission on his part he is liable for the tort of negligence. However the act or omission should be such that the reasonable man would have taken proper precautions for them. In order to analyze that whether the tort of negligence has been caused or not three main essential of negligence has to be determined. In addition in order to determine the damages which have been caused to the aggrieved party the remoteness of the harm along with the contribution of the aggrieved person himself towards the injury has to be determined.
The three main elements constituting the tort of negligence are
These three components of the tort of negligence had been provided by the landmark British case of Donoghue v Stevenson 1932 where the court ruled that the defendant was negligent when a snail was found in the beverage manufactured by him and the manufacturer had a duty of care towards all its consumers.
The concept was brought to Australia through the case of Grant v The Australian Knitting Mills [1935] UKPC where the court confirmed the decision of the previous case and brought the concept into the Australian legal system.
The duty of care in Australia is determined in a different way as compared to that of the United Kingdom according to which the element of proximity is essential. In Australia the court first determines that whether the present case is similar to any other case where the duty of care has been established. This principle had been provided by the case of Perre v Apand (1999) 198 CLR 180, 217. If this is not the case than the court determines through the application of the “salient feature test” as provided by the same case that whether the defendant owed a duty of care to the plaintiff or not. The features which are analyzed by the court through the application of this test are
The Civil Liability Act 2002 provides provisions which have to be satisfied in order to establish a duty of care through its Section 5B and 5C. According to Section 5C the person can be held to be negligent if the harm caused to another person was foreseeable by him, the harm caused was significant and a reasonable person would have taken more precautions in similar circumstances to avoid the injury. The court further determines whether a reasonable person would have taken more precautions in the same circumstances by analyzing the probability of the harm if proper precautions were not taken, the extent of seriousness in relation to the harm, the burden of taking care to prevent the risk of injury and the activity’s social utility from which the risk of injury is created.
The duty of care is said to be breached when the person owing such duty fails to take reasonable care through an act or omission which causes injury to the plaintiff. The breach of duty of care can also be analyzed through the application of the objective test as provided by the case of Vaughan v Menlove (1837) 3 Bing. N.C. 467. According to the objective test the defendant has to satisfy the standard of a reasonable person in similar circumstance. In the case of Wilsher v Essex [1988] 1 AC 1074 the court ruled that if the defendant in question is a professional than the stated of reasonability would be determined according to the general practice of the profession.
Causation is the final element which constitutes the tort of negligence. Causation in generally analyzed through the application of the “but for” test as provided by the case of Barnett v Chelsea & Kensington Hospital [1969] 1 QB 428. According to this concept the cause of the harm is determined by analyzing that the harm would have been occurred or not if the act or omission was done or not by the defendant. In this case the doctor had failed to comply with its duty of care in relation to treating the patient. It was evident that the patient would die irrespective of the fact that the treatment was provided to him or not. The patient ultimately died and the court held that the doctor cannot be held for negligence as it was not the cause of injury.
Contributory negligence is the concept through which the court determines the damages to be paid to the aggrieved person. If a person had been involved himself through a contribution towards the harm caused to him the court in this case may allow damages considering the extent of the contribution made by the person himself. The concept is often used against the claim of negligent made against the defendant.
In the case of Parlin v Choiceone Pty Ltd [2012] the court had to decide whether negligence had been caused or not. The trial court in this case ruled that the defendant was negligent in this case and awarded damages to the plaintiff. The court of appeal found that the plaintiff had contributed towards the harm caused to him and reduced the penalty paid by the defendant by 20%.
The concept of contributory negligence had been provided by the English case of Pennington v Norris (1956) where the court determined the damages paid to the plaintiff based on his own contribution to the injury.
The concept of contributory negligence has been provided by the Civil Liability Act 2002 through Section 5R-5T. According to the section contributory negligence is determined by the application of the same principles which are used to determine negligence. The court can also reject the claim of negligence if it finds just and equitable to impose 100% contributory negligence on the plaintiff himself.
In the case of Jackson v McDonald’s Australia Ltd [2014] NSWCA 162 the court found that there had been a 70% contribution on the part of the plaintiff who was negligent in causing his own injury by ignoring a clear sign in relation the wet floor. Whereas the defendant were 30% liable as it failed to clean the spill immediately.
According the concept of Remoteness of damages the defendant is liable for all the damages caused to the plaintiff with respect to the injury if the injury caused to him was foreseeable. This concept had been provided through the English case of The Wagon Mound no 1 [1961] AC 388 however the concept have been changed in the modern times. According to the modern concept of remoteness every loss caused to the injured person cannot be recoverable. Only looses which can be reasonably foreseen can be recovered by the plaintiff. This concept had been applied in the case of Page v Smith [1996] 1 AC 155.
In this part of the assignment the law discussed above would be applied to the facts of the given case.
In this case firstly it has to be analyzed that Trevor owed a duty of care towards Anna or not. Appling the principles in relation to the duty of care as discussed above to the fact of this case it can be concluded that Trevor had a duty of care towards Anna as he was providing services to her with respect to the tour. Trevor’s actions could reasonably affect the safety of the plaintiff as she was dependent on him for the purpose of the tour.
Now when it is has been established that the defendant had a duty of care towards the plaintiff it has to be analyzed that whether the duty of care had been breach or not. In order to analyze the breach it has to be established that the defendant failed to take precaution which a reasonable person would have taken in similar circumstances. It is evident from the fact that Trevor had knowledge that if proper precautions are not taken then it can lead to accidents as he had witnessed such events before. In addition Trevor is a graduate in environmental science and it is expected that he would have the knowledge about the situation which caused the injury. Although Trevor had provided clear guidelines for the tourist he failed to comply with the provisions of reasonable care by not being able to return on time after going to search for a new location. Therefore it is clear that he had breached the duty of care owed toward the plaintiff.
Now when it is established that the defendant had breached the duty of care it has to be analyzed that whether the breach was the actual cause of the injury caused to the plaintiff or not. Applying the “but for” test in this case as discussed above it can be analyzed that the injury to Anna would not have been caused if Trevor would have been back on time during the daylight. Therefore the element of causation is also satisfied in this case which not comprises of the tort of negligence on the part of the defendant
Applying the concept of contributory negligence in this case it can be analyzed that the plaintiff had contributed towards the injury caused to her by replacing her sports shoes by heels against the warning issued by the defendant. A reasonable person in similar circumstances would have adopted proper precaution and would not have consumed alcohol as done by the plaintiff. Therefore it is evident in this case that the plaintiff herself had contributed towards the harm caused to her by not complying with the warning issued by the defendant and not acting in a way a reasonable man would have in similar circumstances.
Therefore in order to determine the amount of damages to be paid to the plaintiff the court would take into account the contributory negligence of the plaintiff as it was done in the above discussed case of Jackson v McDonald’s Australia Ltd.
A reasonable man in similar circumstances could foresee that if damages are caused to another person in the circumstances it can lead to significant injury which would subsequently result in increased harm to the person with respect to the business owned by her. Therefore in this case Trevor is liable for the damages suffered by Anna with respect to the loss of income for 12 months. However as discussed above the defense of contributory negligence would be used by the court in this case to determine the damagers which are to be paid by the defendant to the plaintiff.
Concluding this paper it can be stated that the defendant is liable for the tort of negligence against the plaintiff and the plaintiff herself has also contributed towards the harm suffered by her. Therefore the damages would be awarded by the court in a proportionate manner.
References
Barnett v Chelsea & Kensington Hospital [1969] 1 QB 428
Civil Liability Act 2002 (NSW)
Donoghue v Stevenson 1932 AC 562
Grant v The Australian Knitting Mills [1935] UKPC
Jackson v McDonald’s Australia Ltd [2014] NSWCA 162
Page v Smith [1996] 1 AC 155
Parlin v Choiceone Pty Ltd [2012]
Pennington v Norris (1956)
Perre v Apand (1999) 198 CLR 180, 217
The Wagon Mound no 1 [1961] AC 388
Vaughan v Menlove (1837) 3 Bing. N.C. 467
Wilsher v Essex [1988] 1 AC 1074
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