Legal Eligibility On Bringing A Case Under The Law Of Negligence Against CSIRO

Discuss about the Business Law Of Lorraine Smith.

The brief facts establish that Lorraine Smith was working as a senior marine biologist in the maritime research division of the CSIRO and was involved in the whale programme. She became a consultant in Warrnambool after resigning from CSIRO.

Lately, she sustains injuries while checking a pod of Southern Wright whales.

The Key issue that is mainly raised is:

Can Lorraine Smith is legally eligible to bring a case under the law of negligence against CSIRO?

In order to prove negligence on the part of CSIRO, Lorraine Smith has to prove some basic fundamentals of negligence.

The parties in the given context are Lorraine Smith and CSIRO.

The duty of care on CSIRO can be determined after analyzing wether Lorraine is the employee or independent contractor of CSIRO.

As per Hollis v Vabu[1], an employer is liable for the tortoise act of an employee and of an independent contractor. It was held that if any person is working with the workers of the defendant or with their instruments etc then they are working for the defendants.

In the given case, Lorraine Smith has continued to do quite a bit of work with CSIRO; She would work 3 days a week on the Whale program; she writes reports for Dr Renae Slater who also directs her as to where she works when she is performing tasks for the CSIRO; The CSIRO pay her an hourly rate and A lot of her work involves scuba diving and CSIRO provide this equipment for her.

Thus, she must be considered as an employee of CSIRO.

It is now important to understand whether CSIRO owns a duty of care against Lorraine.

Negligence mainly aims to bring justice to the plaintiff who suffers damages because of the wrongful actions of the defendant. A defendant is considered to be under legal duty to avoid acts that may cause harm to the plaintiff and if this legal duty is violated, then, the defendant suffers consequences under the law of negligence.[2]

In order to prove negligence on the part of CSIRO, it is necessary to prove that there is a duty of care on the part of CSIRO which was violated and which is the main reason because of which damages are caused to Lorraine Smith.

A duty of care can only be imposed upon CSIRO if it can be proved that Lorraine Smith is its neighbour and that that there is presence of reasonable forseeability on the part of CSIRO.

Analysis of Legal Position of Lorraine Smith

As per Donoghue v Stevenson[3], a plaintiff is called the neighbour of the defendant when the acts or omission of the defendant falls directly upon the plaintiff. There must be close connectivity amid the two and there should be presence of proximity amid the parties and is held in Cook v Cook[4].[5]

Section 48-49  of Wrongs Act 1958 also deals with the concept of duty of care and is rightly held in Stevens v Brodribb Sawmilling Company Pty Ltd[6] that even if the defendant and plaintiff are not in an employment relationship, but if the plaintiff is working for the defendant then there is a relationship of proximity amid the two[7]. As per Donoghue v Stevenson, it is the duty of every employer that adequate care must be provided to its employee because they share a relationship of proximity amongst them.

It is submitted that the acts of the defendant will fall directly upon the plaintiff as they are in close connection with each other. Lorraine is acting as an employee if CSIRO and thus CSIRO must provide care to Lorraine. Also, Lorraine actions are guided by Dr Renae Slater who in turn is working for CSIRO. Thus, CSIRO and Lorraine Smith shares relationship of proximity even though she has her own lap-top or she provides her own clothes or CSIRO do not provide any superannuation or other employee benefits.

Also, as per McLoughlin v O'Brian[8], Lorraine Smith must also be reasonable foreseeable by CSIORO in order to impose duty of care. It is submitted that there were employees of CSIRO who were accompanying Lorraine Smith when the incident took place. Thus, CSIRO can reasonably foresee Lorraine Smith and thus CSIORO owns a duty of care against Lorraine Smith.

As per section 48 of the Wrongs Act 1958, a duty is considered to be violated  considering various factors, such as, Probability of injury, Severity of injury, Utility- social good , Practicability of taking alternative measures, cost, convenience etc. Once the duty of care is imposed upon the defendant then he must comply with the same and if the level of care that fall short of the expectations then there is breach of duty of care and is rightly held in Paris v Stepney Borough Council[9], wherein the defendant when does not provide the goggles to his employee knowing the facts that he is blind from one eye results in breach of duty of care because the care that is expected from the defendant was not met.[10]

Duty of Care on CSIRO

The duty of care that is imposed upon CSIRO is not catered by the organisation, mainly because Lorraine was diving with CSIRO employees and they were in a CSIRO boat. Whilst descending to about thirty feet she experienced troubles with her breathing. It appears that she had a faulty air-line, showing signs of perishing and excessive wear and tear. Simon Banks (CSIRO's maintenance officer) did not pick the defect. Thus, the level of care that is expected from CSIRO and its staff was not met resulting in breach of duty of care on the part of CSIRO.

Damages requires causation and remoteness of damages. The concept of causation is established under section 51-52  of Wrongs Act 1958.

In negligence the damages are said to be incurred when the same are because of the negligent act of the defendant and there is no indirect cause of the damages. Thus as per McWilliams v Sir William & Company Ltd Arrol Limited[11], there must be presence of causation. The but for test is applied which proves damages on the part of the defendant.

Also, the damages which are caused to the plaintiff must be reasonable foreseeable by the defendant and is held in Overseas Tankship (UK) Ltd v Morts Dock & Engineering Company[12].

Now, in order to prove negligence on the part of CSUIRO it is also necessary that Lorraine Smith must have sustain injuries and is held in Chapman v Hearse [13] .

It is submitted that because of the faulty pipeline, Lorraine Smith had to ascend to the boat quicker and as a result she suffered 'bends" and needed to be hospitalized over the weekend and was not going to be able to dive for at least two months resulting in considerable loss of income.

Thus, damage is caused to Lorraine Smith which is reasonably foreseeable by CSIRO and the loss caused is because of the breach of duty of care on the part of CSIRO.

Thus, the legal position of Lorraine Smith at this stage is that she is rightful in bringing a claim under the law of negligence against CSIRO.

Section 53-56 of the Act 1958 lays down defense that can be availed by every defendant.

It is submitted that when the defendant is able to prove that the loss that is caused to the plaintiff is not because of the negligent actions of the defendant but the loss is caused mainly because the plaintiff has assumed the damager voluntarily and thus the defendant is not held liable for the damages sustained by the plaintiff and is held in Smith v Baker[14].

Thus, CSIRO can prove that Lorraine Smith is an independent Marine Consultancy and this can be proved from the fact that she has a 4 wheel drive which has LS Marine Consultancy badges on the vehicle for promotional purposes. Thus, the actions that are taken by her is independent in nature and thus the risk that is caused to her is assumed by her voluntarily. So even though CSIRO is negligent in its action but the main reason for the cause of damages that are sustained by Lorraine Smith is that she voluntarily assumed the risk by diving in the waters.

Thus, I would like to advise that Lorraine Smith has a strong position to bring a case under the law of negligence against CSIRO as the duty of care that is imposed upon CSIRO is not by it resulting in damages caused to Lorraine Smith.

But, Lorraine Smith must prove that the damage that is caused to her is not assumed by her voluntarily in order to avoid the deafens if volenti non fit injuria.

Books/Articles/Journals

Khan, Malcolm, Robson, Michelle, Clinical Negligence (Routledge, 21-Aug-2012)

1987. L'Estrange, PROXIMITY AND THE STANDARD OF CARE — COOK v. COOK, 1987.

Lambiris, Michael, Griffin, Laura ,  First Principles of Business Law, (Oxford University Press, 08-Feb-2017)

Legislation

The Wrongs Act 1958 (Vic)

Case law

Chapman v Hearse  [1951] 1 All ER 42

Cook v. Cook (1951) [830 SCR.

Bottom of Form

Donoghue v Stevenson (1932) 562 AC.

Hollis v Vabu Pty Ltd (2001) 207 CLR 21.

McLoughlin v O'Brian (1983) 1 AC 410.

McWilliams v Sir William & Company Ltd Arrol Limited [1962] 1 WLR 295.

Overseas Tankship (UK) Ltd v Morts Dock & Engineering Company (1961).

Paris v Stepney Borough Council (1950) 367 AC

Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR .

Smith v Baker & Sons [1891] AC 325