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Negligence in Tort Law

Question:

Discuss About The Applying Perspectives To Complex Dilemmas?

An ordinary person has certain reciprocal duties that he has to perform. When he fails to perform the same, he is stated to do negligent act. In Australia, negligence is a part of the Tort Law (Martin 2016). One of the most marketing cases on the negligence is Donoghue v Stevenson where the essential elements of negligence have been described. It has been stated by the court that the acts of the person must meet all the requirements stated under:

  • The defendant has certain duties to the victim;
  • The defendant has failed to perform his duties like a prudent man should do;
  • The negligent act has caused a damage to the victim;
  • The damage is not foreseeable in nature.

An act will be termed as negligence on the fulfilment of above noted facts. Duty to take care denotes legal duty. In the case of Donoghue v Stevenson, it has been observed that the manufacturer had failed to perform his duty to serve good quality of product and the consumer get sick due to such carelessness. This caused great physical and mental damage to the consumer. The court observed that the manufacturer is legally bound to provide good products and owe a duty to the consumer.

In case of Grant v Australian Knitting Mills Ltd (1935) AC 85, the plaintiff had developed certain skin disease after buying the product of the defendant. It was examined and found that the cloths are contained of excessive sulphates. The court was pleased to pass its judgment against defendant as he failed to take reasonable care for the products and that caused serious damage to the plaintiff.

The second important element of negligent act is the breach of duty made by the defendant during their ordinary course of business. In McHale v Watson (1966) 115 CLR 199, two children were playing and by the careless act of the defendant, plaintiff had lost his eye. It was held that though both the plaintiff and defendant were minor and defendant had not intentionally did the wrong act, he should be cautious in his part and he had failed to act like a prudent person and therefore, the plaintiff can claim for damage from him. However, the next important thing in case of negligent Act is the seriousness of the consequence (Cavico et al. 2016). If the negligent act of the defendant has caused a great dilemma to the plaintiff, the defendant will be liable to pay compensation to the plaintiff. Such damage should be cropped up by the breach made by the defendant. In Rogers v Whitaker [1992] HCA 58, the plaintiff was treated by the defendant and by the negligent act of the defendant, plaintiff had lost his eye. It has been found by the court that defendant was failed to perform his legal duties and such failure caused irreparable damage to the plaintiff. Similar situation arose in the case of Woods v Multi-Sport Holdings (2002) 208 CLR 460. In that case, the defendant had failed to warn the plaintiff regarding the eye injury and also failed to provide necessary instruments so that the chances of accident can be avoided. It has been observed that the defendant could not able to provide helmet to the plaintiff and consequently, the plaintiff had sustained certain eye injury. Therefore, the acts of the defendant have been considered as negligent act. In Waverley Council v Ferreira [2005] NSWCA 418, a child was died due to fall from roof and his family had filed a case against the building council. It has been held that the building authority had failed to take proper care to the building that resulted into the death of the child. The act of the council was treated as the negligent act by the court.  

The Elements of a Negligent Act

It has been stated under the law that no one is allowed to do any act by which another get injured unreasonably. If the duty to take care is being violated, the wrongdoer will be held liable under the act of negligence. business-law, in Bourhill v Young 1943 AC 92, it has been observed that if the duty to the plaintiff could not be proved, the defendant is not under compulsion to pay compensation to the plaintiff. Therefore, it is important to determine the relationship between the plaintiff and the defendant. In case of Anns v Merton London Borough Council, the Court held that there must be a proximate relationship within the defendant and the plaintiff. The principle of proximity has also been established in the case of the Sutherland Shire Council v Heyman (1985) HC. Proximity denotes the nearness or closeness. Employee and employer relationship, manufacturer and consumer relationship, driver and customer relationship can be treated as proximate relationship (Goldberg, Sebok and Zipursky 2016). In all these cases, the related persons owe certain reciprocal duties to others. Foreseeable nature of the damage is an essential element of the proximate relationship (Cusimano and Roberts 2016). If the damage is not foreseeable, the defendant will not be held liable for damage. In Bourhill v Young 1943 AC 92, there was no proximate relationship in between the plaintiff and the defendant and the damage caused by the defendant was not foreseeable in nature. Therefore, the court held that the defendant is not liable to pay any compensation to the plaintiff.

In case of a claim under negligence, the victim must have to prove that the negligent act of the defendant has caused serious injury to him. The injury could either be physical or mental or property related. In Chappel v Hart [1998] 1 HCA 55, a surgeon had failed to comply with all the necessary duties and that cause serious damage to the plaintiff. Further, in the case of Donoghue, it has been observed that the negligent act of the manufacturer had caused serious physical and mental damage to the plaintiff. However, it should be borne in mind that the damage must be foreseeable in nature. It has been held in Overseas Tank ship (UK) Ltd V Morts Dock & Engineering Co (The Wagon Mound) [1961] AC 388 that if the damage is not foreseeable, the defendant will not hold responsible for anything.

Proximate Relationship and Foreseeability of Damage

On the other hand, Alice may approach certain defence before the court. She can raise the provision of contributory negligence and voluntary assumption of risk. Where in a case, the plaintiff is also liable for his injury; the defendant can defend him under this provision. In this case, the defendant is not bound to pay all compensation to the plaintiff. For an instance, if a drunken man hire a taxi and aboard in it after knowing that the driver of the car is also drunken and if the car meet with an accident, the plaintiff could not ask for the entire compensation as he is partly liable for the injury and he had a knowledge about the drunkenness of the driver. The provision of contributory negligence has been mentioned under section 23 and section 24 of the Civil Liability Act 2003 (QLD). According to section 23 of the Act, besides analysing the breach of duty made by the defendant, it is also necessary to point out whether plaintiff had done his portion of duties successfully or not (Cusimano and Roberts 2016). Like the defendant, plaintiff has also certain reciprocal duties to the defendant. Defendant should take all the precautions to avoid the accident. If he fails to do the same, he will be held liable for the damage partly and his acts will be treated as contributory negligence. Butterfield v Forrester is the case where the principle of contributory negligence has been established. In this case, a person was collided with a pole and sustained injury. In the trial, it has been held that the speed limit of his car was high and he had not seen the pole and sustained injury. Therefore, he had failed to comply with his portion of duties. In the case of March v Stramare Pty Ltd (1991) 171 CLR 506, it has been observed that defendant had parked his car in the middle road and plaintiff was collided with the car. However, it has later been known that plaintiff was drunk and exceeds the speed limit of his car. Therefore, he had lost his control and rammed the car of the defendant and sustained injury. Therefore, plaintiff is also partly responsible for his injury and could not claim entire damage from the defendant.

On the other hand, Alice can defend her under the provision of the voluntary assumption of risk. It has been observed that if the plaintiff knew that certain accident may cause to him, and he choose to continue with the act irrespective of these causes and sustained injury, plaintiff could not ask for entire damage. For instance, a person is watching motor cycle race knowing the fact that accident may cause and he can be injured by the same and still choose to watch the race. If he sustained any injury due to this, his acts will be come under the purview of voluntary action of risk.      

The Victim's Burden of Proving Serious Injury

In this case, it has been observed that Alice had started a business where she had provided poor service to the customers. The boat she used for the is of cheap quality and allowed the boat to sail in the sea when it was overcrowded. The floor of the boat was slippery and Marcos, a customer of Alice, was fallen down due to this. He had sustained certain injury due to this. Additionally, when Marcos had sustained injury, instead of taking him to the hospital, Alice had continued the sailing and the condition of Marcos had deteriorated. In this case, it is clear that the acts of Alice were not prudent and she had failed to perform the legal duty of an entrepreneur. Alice should have to take all the proper care to her customers and must make sure that all the requirements of the business have properly been checked. However, she had failed to meet all the important criteria of her business and failed to act like a prudent man. It has been observed that the boat she occupied has a total seat of 20 people, but she allowed more that 20 person in the boat. She had failed to cover the entire floor of the boat with mat and applied paint on the rest of the floor and the floor became slippery due to this. When Marcos was failed to wear proper shoes for the ride, she should have to stop him as per the business requirement. However, she had not taken any such steps for her business and Marcos had to suffer loss for that. According to Donoghue’s case, the act of Alice had met all the essentials of negligence and according to Roger’s case; the consequence of the breach of duty has created a serious impact on Marcos. According to Oveido, failure to perform proper duty is termed as negligent act (Oviedo 2016).

However, Alice can defend her case under the parlance of contributory negligence and voluntary assumption of risk. The website, from where Marcos booked his ticket, certain facts was mentioned such as wearing close shoes. However, he had failed to wear the same and wishes to continue his journey. The accident can be avoided if Marcos had complied with all the requirements. Therefore, he can be held liable under the contributory negligence. Concurrently, after came into the knowledge that close shoes are important for the ride, he had not taken any steps and went to the ride without wearing the proper shoes. This act can be treated as voluntary assumption of risk. Therefore, Alice can defend her case on the basis of this.   

Defences of Contributory Negligence and Voluntary Assumption of Risk

Conclusion:

Therefore, it is advised to Marcos that he can claim damage from Alice under the provision of negligence.

Certain ethical dilemmas can be observed in the acts of Alice. The nature of her act has attracted the provisions of the rights approach.

The main reason of choosing the ethical approach is that the act of the human being reflects the nature and character of the person (Ferrell and Fraedrich 2015). A person should have to choose the right thing that is ethical in nature. Ethical action protects the moral rights of an individual and therefore, it is important to take decisions carefully so that it may not harm the rights and dignity of others (University, 2018). According to this approach, the acts of the human being proved the level rationality within him and consider the moral duty of that human (Shapiro and Stefkovich 2016). It has been learnt from the given case that Alice had failed to take right decision. She had not chosen the right path and due to her irresponsibility, damage had sustained by Marcos. Alice had failed to take rational decision.      

There are certain factors and tensions present in this case and that should be taken into consideration by any reasonable and prudent person (Hunink et al. 2014). It is the ultimate duty of the individual to take moral decision at every stage of his life. Ethical decision making process needs trained sensitivity and one must handle the ethical situations practically (Iphofen 2016). It is required to apply proper methods to take ethical decisions. The factors needed to be balanced are:

  • Whether the decision has caused any damage to others or not.
  • Whether the decision is the most appropriate option or not.
  • Whether the nature of the decision is efficient or not.
  • Whether there is any alternative options or not.
  • Whether the decision has treated all the people equally or not.
  • Whether the impacts of the decision affects the whole community or not.

It is clear from the case that Alice needed to take prudent decision while dealing with the customers and should have to show certain duty of care to the customers as well. However, she had failed to do any of her duty and failed to take proper decision at the time when Marcos got injured. At that time, she had to take Marcos to the hospital. However, instead doing the same, she chooses to continue sailing in the sea. Such decision has attracted the provision of the rights approach and it has been observed that Alice had failed to show rationality and Marcos had to develop injury or that. A prudent person should not make such decision like Alice. First of all, it was not right to allow Marcos when he had not complied with the rules mentioned in the website. Further, when Marcos got injured, Alice should have to stop finding whales and rushed him to the hospital for the sake of ethics and morality. She should not allow excessive persons to the boat. Above all, she should make a proper plan for her business,

Reference:

Abraham, K., 2017. The forms and functions of tort law. West Academic.

Barry, C., 2017. Statutory modifications of contributory negligence at Business law. Precedent (Sydney, NSW), (140), p.12.

Cavico, F.J., Mujtaba, B.G., Samuel, M. and Muffler, S., 2016. The Tort of Negligence in Employment Hiring, Supervision, and Retention. American Journal of Business and Society, 1(4), pp.205-222.

Cusimano, G.S. and Roberts, M.L., 2016. Contributory Negligence and Assumption of Risk. Alabama management 1.

Cusimano, G.S. and Roberts, M.L., 2016. Intentional Interference with Business or Contractual Relations and Other Business Torts. Alabama Tort Law, 1. (pr)

DeMott, D., 2016. Culpable Participation in Fiduciary Breach.

Epstein, R.A. and Sharkey, C.M., 2016. Cases and materials on torts. Wolters Kluwer Law & Business.

Ferrell, O.C. and Fraedrich, J., 2015. Business ethics: Ethical decision making & cases. Nelson Education.

Goldberg, J.C., Sebok, A.J. and Zipursky, B.C., 2016. Tort Law: Responsibilities and Redress. Wolters Kluwer law & business.

Hill, L.L., 2016. The Litigation Privilege: It’s Place in Contemporary Jurisprudence. Hofstra L. Rev., 45, p.143.

Hunink, M.M., Weinstein, M.C., Wittenberg, E., Drummond, M.F., Pliskin, J.S., Wong, J.B. and Glasziou, P.P., 2014. Decision making in health and medicine: integrating evidence and values. Cambridge University Press.

Iphofen, R., 2016. Ethical decision making in social research: A practical guide. Springer.

Martin, K., 2016. Topical matters pertaining to the tort of negligence-the attribution of blame. Brief, 43(7), p.38.

Oviedo, A.D., 2016. Use of Jurisprudence to Teach Professional Negligence. Journal of Nursing Education, 55(12), pp.720-720.

Phillips, A., 2017. Essentials of Negligence (Law of Torts) With Respect To India. Imperial Journal of Interdisciplinary Research, 3(10).

Shapiro, J.P. and Stefkovich, J.A., 2016. Ethical leadership and decision making in education: Applying theoretical perspectives to complex dilemmas. Routledge.

Sugarman, S.D., 2015. Misusing the'No Duty'Doctrine in Tort Decisions: Following the Restatement (Third) of Torts Would Yield Better Decisions. Alta. L. Rev., 53, p.913.

University, S. (2018). A Framework for Ethical Decision Making. [online] Scu.edu. Available at: https://www.scu.edu/ethics/ethics-resources/ethical-decision-making/a-framework-for-ethical-decision-making/ [Accessed 22 Jan. 2018].

Walden, P.A., Zeybek, B. and Phelps, J.Y., 2018. Understanding the Legal Essentials of a Bowel Injury Lawsuit in Minimally Invasive Gynecologic Surgery. Journal of minimally invasive gynecology, 25(1), pp.30-37.

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