Law Of Negligence: An Analysis Of Georgina

Duty of Care under the Law of Negligence

Discuss about the Business Law of Vaughan v Menlove.

The area of law which has been identified in this scenario under which a Georgina can make a claim is the law of torts. Under the  law of tort topics areas like defamation, negligence and nuisance are covered. In this particular case the specific area of  tort law under which Georgina can make a claim is the law relating to negligence. This area of law is dealt with the provisions of common law and also statutory provisions provided through various civil liability acts of the respective states. The concept of negligence came into the context of the legal world through the must referred case of Donoghoue v Stevenson[1]. The case introduced the neighbor principle which lays foundation to the duty of care. As a good neighbor has the duty to make sure that no harm or injury or any kind of damage is caused to their neighbors as a result of their actions in the same way a person has a duty of care for another person who can suffer injury as a result of their actions. The famous concept of the duty of care is the initial requirement to make a claim for negligence. The duty of care gives rise to the concept of occupiers’ liability as used in the case of Novakovic v Stekovic[2]. According to the case the occupier of a premise has a duty of care towards those using the premises. Therefore as Georgina was using the space occupied by the defendants Caravan Park and Mr Preston, they owe a duty of care towards her.

In the case of Vaughan v Menlove[3] the court used another requirement to establish negligence. This is related to not complying with the duty of care and thus violating it. In this case a test known as the objective test had been used by the court to answer whether a duty has been violated or not. As per the principles of the case the duty is not complied with in case a prudent individual in similar situation had been more cautious as compared to the defendant. In the given case Georgina has to show that the defendants were not as cautious as a reasonable person as a reasonable person would have made sure that no rock is present in their premises which may cause harm to the users.

The final element is required to raise a claim for negligence is causation. In the case of Barnett v Chelsea & Kensington Hospital[4] a test known as the “but for” test had been used by the court to answer causation. As per the concept of causation the injury occurred to the plaintiff has to be a result of the duty’s violation. Thus as per the “but for” test if the injury would have occurred although the duty was not violated than it would not establish negligence. In the given case if there would have been no rock than no injury would have been caused to Georgina. Hence she has can make a claim under negligence under common law and under the civil liability acts.

Objective Test and the Breach of Duty of Care

This section of the paper will set out the breaches which have been made by the defendant which the plaintiff could rely upon making a claim for negligence.  As per the civil liability acts of the states a person is negligent and have breached the duty of care if the risk of injury could be foreseen which means that the risk was known or is deemed to be known to that person. According the facts of the case is evident that the defendants knew that presence of the rock in the premises which is not easily seen at night can cause harm to any user of the premises.

Moreover the rules provide that the risk must not be insignificant, that was not the case according to the facts of the scenario as any person can predict a large rock can cause significant injury a person. In addition the rules state that if a reasonable person would have been more caution then than the duty of care has been breached. In this case it was evident that such provisions have been breached by the defendant as a reasonable person would have informed about the presence of the rock to the users of the premises through a sign.

In addition the provisions of the legislations provided the rule relating to probability for determining the actions of a reasonable person, the seriousness of the harm, the burden of taking precautions for avoiding the risk of injury and social utility associated with the action creating the harm. In this case the defendants know that it is probable that a person would get injured at night without seeing the rock. The harm arising out of such situation is also very significant, there burden of taking precaution was mainly on the defendants and the action of the plaintiff was for social utility thus the defendants have breached these provisions.

The principles of causation have also been breached by the defendants as the injury was caused necessarily because the defendants were negligent in their actions. Thus the principles of factual causation have also been violated by the defendants as Georgina would not have suffered the injury if proper measures were taken by the defendants.                                                                     

There is little doubt over the fact that the defendants would not admit the claim of negligence made by Georgina in relation to the injury caused to them.  However in relation to the claim they may admit certain part of the evidence provided by Georgina.

Causation under the Law of Negligence

The first photograph which was taken by the daughter of the halls depicted the prominent presence of a dark rock which was positioned between two posts one of which was Georgina’s tent and the other in front of the vehicle owned by the halls. In the second photo where the light was not sufficient the rock was barely visible to the naked eye. The defendant way admit that the rock was visible in the morning and not at night so Georgina must have known about the existence of the rock when it was visible and thus had been more careful in relation to the injury suffered by her. They would not accept the clim made by Georgina which stated that she saw the two posts but not the rock and they may claim that any person having healthy eyesight would have seen it.

The further have to accept that there was no defined path as provided by the facts of the case to go to the toilet facilities provided by them from the tents. An absence of a path would suggest that it would  make the users of the premises more vulnerable to the risk of getting Injured. They also cannot deny to the fact and have to admit that there was a big rock present between the tents with no signpost to suggest that the people have to be cautious at night there.  The defendants may also admit the fact that the plaintiff did not take the same path coming back from the toilet as she was injured by taking a different path.  They may also have to admit to the fact that Georgina had fallen because of little ledge below the rock as a black area was shown their in the photograph depicting the presence of such ledge.

When it comes to negligence both common law and the civil liability act provided certain defenses which can be utilized by the defendants against a plaintiff to defeat or reduce the claim made by them.

Common law and statutory law provides the concept of contributory negligence. In the case of Jackson v McDonald's Australia Ltd[5] it was provided by the judges that of a person was not careful in relation to sustaining the harm which has been caused to them they might not be able to make a full claim of negligence. In addition the statutory provisions of the civil liabilities acts provides that the claim made by a person in relation to negligence can be defeated totally if it is found that they were significantly liable for the harm caused to them.

Defenses Available to the Defendants

Moreover the Civil Liability Act 2002 (NSW) through its part 6 provides provisions related to intoxicated persons in case of negligence. Section 48 provides that a person is said to be intoxicated if they are under the influence of drug or alcohol for any purpose[6].  As provided by section 50 of the Act a person will not recover any damages were it is provided by the defendant that due to the state of intoxication the person ability to use reasonable care towards a situation is impaired[7]. However if the court finds out that an injury would have occurred even of the person was not intoxicated that the plaintiff is entitled to receive a part of the claim made by them because of the failure to exercise reasonable care by the defendants.

In the given situation the first photo showed that the rock which caused the injury was visible during day light along with the little ledge below the rock. In such situation it can be claimed by the defendants that the Georgina as a reasonable person when was present during day time and was setting up the camp should have been aware about the fact that a large rock along with its little ledges are present in front of her tent.

When at night there was not provided path to avail the toilet facilities as a reasonable person she should have used the dame path to come back which she used whole going to avoid any injury because of the darkness. If she would have taken reasonable care than the injury would have not been caused to she and she would have avoided the rock. Thus according to the provisions of contributory negligence her claim can be reduced by the courts

In addition it has been provided by the facts of the case that Georgina was drinking along with her friends the night the injury took place. The intoxication state would have further impaired her ability to take reasonable actions in the situation and the injury may have been avoided if she was not intoxicated. Therefore this can also be claimed as a defense by the defendants against Georgina.

In the given situation to find out the actual damages to be paid to Georgina the court will determine the extent of contribution made by Georgina herself towards the injury sustained by her.

Novakovic v Stekovic [2012] NSWCA 54

Barnett v Chelsea & Kensington Hospital [1969] 1 QB 428

 Vaughan v Menlove (1837) 3 Bing. N.C. 467

Civil Liability Act 2002 (NSW)

Jackson v McDonald's Australia Ltd [2014] NSWCA 162