Trevor is a qualified Landscape Gardener and Level Five Arborist, who has been short of work recently. He lives at Buderim and decides to use his spare time to replace the gravel path from his front gate to his front door with a deep concrete track. To this end, he digs a 30 cm deep and 1.5 wide trench from his low front picket gate to his house, which is a distance of some 15 metres. His front yard is bushy, but it is filled with piled dirt and the tools he is using.
Anna is a Census Taker employed by the Australian Bureau of Statistics. One week day afternoon, Trevor had just finished digging the trench. He was about to tie the gate shut when the telephone, inside his house, rang. Trevor dropped everything and ran to answer it. Minutes later Anna, who had been canvassing Trevor’s street, approached Trevor’s gate along his footpath. Anna had just switched her mobile telephone on and was reading a number of SMS messages that were stored. About a half an hour before, Anna had consumed a half a bottle of wine with her lunch at a local tavern.
Anna was intently checking her messages when she opened the catch on Trevor’s front gate and stepped into his yard. Anna fell forward into the trench and badly broke her shoulder. Trevor came running out to the scene and said, “I’m terribly sorry. I’ll call an ambulance.” Anna fully recovered after a month. However, she did not return to paid employment. She resigned and decided to stay home for 12 months after the incident and do other things before seeking alternative employment. Anna wants to sue Trevor in Negligence and claim 12 months in lost income and punitive damages to punish him.
Advise Anna as to her case for Negligence against Trevor. Do not discuss any defences apart from Contributory Negligence. Do not discuss Worker’s Compensation or any area of law other than Trevor’s personal liability in Negligence.
Matt operates fishing tours off the Slippery Coast in South East Queensland. Matt has a small boat. The marine authority, which regulates licensing for tourist operators, has determined that Matt’s boat can safely accommodate two passengers at a time.
Neville has come from Victoria with his brothers, Scott and Tom, to the Slippery Coast for a holiday. Neville sees an advertisement for Matt’s tours. Neville contacts Matt by telephone. He arranges to take a fishing trip with his brothers on Matt’s boat the next morning.
Matt decides that it will be all right to take three people out because the regulations are very conservative. Matt knows that other operators frequently exceed their limit. He is very pleased to have the booking, as business has been slow lately. He makes sure he has three lifejackets on board for his passengers.
The next morning the brothers eagerly arrive early at the dock to board Matt’s boat. Matt notices that the three brothers are all very large men. On boarding Scott notices a sign attached to the boat, which says ‘Lifejackets must be worn at all times’. Scott thinks that a jacket would be hot and uncomfortable and ignores the sign. Matt doesn’t tell the three brothers to put on their lifejackets. The weather looks fine. They head out to sea.
Around 9:00am a sudden storm hits the boat and it takes on water. Matt struggles into a lifejacket. He yells to the others to put theirs on. Scott can’t hear him above the sound of the water lashing the boat. He sits with his head down against the rain, hanging on to the side. A big wave hits and the boat capsizes. Matt, Neville and Tom surface from under the water and hang onto the upturned boat. Scott surfaces some minutes later, unconscious. Neville grabs Scott and hangs onto him.
The four men are rescued within the hour by a coast guard patrol. Scott is revived and rushed onshore to hospital. Matt, Neville and Tom are unharmed. Scott however has sustained significant brain damage due to nearly drowning. He has normal intellectual function but has sustained permanent paralysis down his right side and is confined to a wheel chair.
Evidence reveals that the excessive weight of the passenger load contributed to the capsizing of the boat.
Scott comes to you for advice. He wishes to sue Matt in Negligence. Advise him.
You are asked to ignore any questions of vicarious or occupiers’ liability. Confine your discussion to a consideration of Matt's personal liability in Negligence only.