Jacintha and radio hosts relationship
On 7 December 2012, Jacintha Saldanha, a nurse from India working in a London hospital was found dead in her nurse’s quarters. She had hanged herself. Three days prior, two Australian radio show hosts made a prank call to Jacintha impersonating the Queen and Prince Charles. They asked to speak to the Princess of Cambridge who was a patient at the hospital. Jacintha transferred the call to another nurse who spoke to the pranksters for around two minutes.
In groups, describe the nature of the relationship between Jacintha and the radio hosts
On 24 March 2015, Germanwings co-pilot Andreas Lubitz intentionally crashed a plane in the French Alps killing all 144 passengers and 6 crew members. According to French and German prosecutors, Lubitz locked the pilot out of the cockpit after he left to use the toilet. In response to the incident, aviation authorities in Australia implemented new regulations that require at least two authorised personnel in the cockpit at all times.
In groups, consider whether or not the new regulations will be an effective precaution to stop a similar incident from happening again.
On a sunny morning in 1943 a black South African woman and her young son were out walking in Sophiatown, the slum they lived in near Johannesburg. A white priest named Trevor Huddleston tipped his hat towards the woman as he passed, a small but extremely unconventional gesture of courtesy between two races separated by apartheid. But the boy never forgot it. To him it suggested that not all white people were oppressive. He grew up to become an instrumental activist in the struggle against apartheid and headed the Truth and Reconciliation Commission. He won the Nobel Peace Prize in 1984 for his efforts in resolving and ending apartheid.
In groups, discuss whether Trevor Huddleston’s gesture caused apartheid to end in South Africa.
The Australian Association of Adventurers (AAA) has a serious problem The Association is shocked by a recent case from New Zealand where an injured customer successfully sued an adventure tour business in negligence for the damage done to her spine whilst performing a bungee jump. The President of the AAA is worried that adventure services businesses in Australia that offer high risk activities such as skydiving, hang gliding, and jet boat cruises may also be exposed to negligence claims if their customers sustain injuries. The President of the AAA seeks your advice.
In groups, prepare at least two strategies that AAA can recommend to its members to protect them from negligence claims.
Jacintha and radio hosts relationship
What is the nature of the relationship between Jacintha and the radio hosts and whether the radio hosts owe a duty of care?
People’s words and actions can have lasting impacts on others, and other parties can suffer injury or loss because of the carelessness of a person. In case the actions of a person could injure other parties, then an important relationship arises between the parties based on which they are expected to maintain a duty of care. In order to understand this duty, the judgment of Donoghue v Stevenson can be evaluated. In this case, the court provided ‘neighbour test’ which can be used by parties to determine whether they owe a duty or not. As per this test, if doing or not doing something resulted in affecting any person, then the person taking or not taking the action should consider another person’s wellbeing. There are certain relationships which have a duty of care such as authorities, drivers, advisers, occupiers, manufacturers and builders. In these relationships, the parties have to maintain the duty of care to a avoid causing harm to others.
In the given case study, the radio hosts called Jacintha in order to prank her by impersonating the Queen and Prince Charles. After three days, Jacintha hanged herself in her nurse’s quarters. The radio hosts and Jacintha were in a neighbour relationship since actions of the hosts affects the wellbeing of Jacintha. As per the neighbour test given in the case of Donoghue v Stevenson, the hosts owe a duty towards Jacintha to avoid taking any actions which could harm her which was breached.
In conclusion, Jacintha and radio hosts were in a neighbour relationship, and a duty of care is owed by the hosts to ensure the wellbeing of Jacintha.
Whether the regulations implemented by the aviation authorities in Australia can be considered as effective precaution to stop similar incidents in the future?
Every action taken by people have a degree of potential risk involved, and it is important to categorise those risks into different classes based on their seriousness such as insignificant, low, medium, high and extreme. The risks can be calculated by parties based on assessing the likelihood of occurrence of the danger and the seriousness of the outcome. As per the neighbour test, if a party owes a duty, then he/she is expected to take reasonable precautions in order to avoid causing injury to third parties. Parties should act in a way which is expected from a reasonable person who is acting in a particular position. A reasonable person is a typical community member who can use his/her common sense to take the right decision. If the actions of a party fail to meet the standard of care which resulted in breach of the duty of care that caused injury to the neighbour, then liability can be imposed under Civil Liability Acts. The risks must be reasonably foreseeable and not insignificant.
Effectiveness of aviation regulations
In the given case study, Germanwings co-pilot intentionally crashed a plane which resulted in the death of 144 passengers and 6 crew members. The co-pilot locked the pilot out of the cockpit when he left to use the toilet. The aviation authorities in Australia implemented new regulations which provide that at least two authorised personnel should always be in the cockpit at all times. This precaution is enough to ensure that similar incidents did not occur in the future. The duty of care which is imposed on the aviation authorities in Australia is maintained by taking appropriate precaution. They have maintained a standard of care which is expected for a reasonable person.
In conclusion, regulations implemented by aviation authorities in Australia are effective precautions to avoid similar incidents in the future.
Whether the gesture of Trevor Huddleston caused apartheid to end in South Africa?
The element of causation provides that in order to recover damages from the defendant, the loss faced by the plaintiff must be caused due to the negligent act. The court provided ‘but for’ test in Cork v Kirby MacLean case. This test evaluates the plaintiff would not have suffered a loss, but for the negligent act, the injury is caused. Remoteness provides that losses which incurred can only be recovered if they are caused by the negligent act and they are not too remote. In Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty Ltd case, it was held that the damages must not only be a direct consequence of the negligent act, but they must also be reasonably foreseeable.
In the given case study, a white priest named Trevor Huddleston tipped his hat towards a black woman that was an unconventional gesture. I made her son realise that not all white people are oppressive based on which the son grew up to become an activist against apartheid, and he also won the Noble Peace Prize for ending apartheid. The actions of the priest gave the motivation to the son to join the fight against apartheid. The son might not have become an activist, but for the action of the priest, he fights against apartheid based on which the element of causation is present. However, the outcome of this gesture was not reasonably foreseeable by the priest. It is not reasonable to assume that the priest knew that his small gesture would result in ending apartheid in South Africa since the outcomes are too remote.
In conclusion, although the gesture of Trevor Huddleston contributed in ending apartheid in South Africa; however, this outcome was not reasonably foreseeable hence it was too remote.
What two strategies can be implemented by AAA to protect themselves from negligence claims?
Voluntary assumption of risk is a common defence in a suit for negligence. It provides that a person cannot blame or sue others for claiming damages for injuries when he/she understood and accepted the risks which were involved in a particular scenario. It is a complete defence which means that the defendant has the right to completely eliminate the liability arising in a suit for negligence; however, the plaintiff must voluntarily give the acceptance, and an agreement must form between parties Contributory negligence is another defence in a suit for negligence. It provides that if a person is careless in order to ensure his/her own safety, then the court can apportion the negligence between the plaintiff and the defendant. The judgement of Imbree v McNeilly is a good example in which the court reduced the amount of damages based on contributory negligence.
The first strategy which AAA should implement is including the term of voluntary assumption of risk in the contract which is signed by customers before conducting high-risk activities. The term should specify that they know the risk involved in the particular activity and they accept the risk of damages. The second strategy is including contributory negligence term in the contract. AAA can argue that since the customers are not taking reasonable care to ensure their safety, then the amount of damages paid by the company can be reduced by the court.
In conclusion, the two strategies which can protect AAA from negligence claims include the defence of voluntary assumption of risk and contributory negligence.
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