Legal Case Analysis On Assumption Of Risk And Exclusion Clause

Assumption of Risk and Negligent Act

1.Will Paul be successful if he brings legal proceedings against Wayne? In your answer refer to relevant sections of the Civil Liability Act 2003 (Qld) and to any relevant case law.

2.Will Paul be successful if he brings legal proceedings against the Golf Club? In your answer refer to relevant sections of the Civil Liability Act 2003 (Qld) and to any relevant case law.

3.Advise Paul regarding damages. Which amounts can Paul claim as damages resulting from the incident at the Golf Club?

The main issue of the case is to determine whether Paul can bring any legal proceeding against Wayne or not.

The main subject matter of the case is based on the provision of assumption of risk. According to section 13 of the Civil Liabilities Act 2003, there are certain risks generated to a person who assumed to take the burden by them (Basten, 2018). It is a defense under the law of Tort that reduce the claim of the plaintiff regarding the right to recovery against a negligent tortfeasor. According to this provision, plaintiff has voluntarily assumes that the work he is going to participate generates certain risks and that may cause injury to him. The assumption of risk denotes an express risk liability and in this case, the provision relating to the duty of care by the defendant does not applied. Under section 14 of the Act, it has been mentioned that if any person gets harmed by obvious risk, he is restricted to make a claim for breach of duties on the part of the defendant. Further, the plaintiff has to prove the remoteness of the damage. That means the plaintiff has to prove that the damage caused to him is not foreseeable. According to section 14(2) of the Act, if the plaintiff has an assumption that certain risk could be cause to him, he will not make a claim for the negligent act of the defendant (Stewart, 2016). Further, a person is restricted to make a claim for personal injury that has been caused to him from obvious risk under section 19 of the Act. Further, Paul will be restrained to make a claim under section 23 of the Act that states about the provision of contributory negligence. In Rakich v Bounce Australia Pty Ltd [2016] VSCA 289, it has been observed that in case where the plaintiff was aware that risk could be showered on him, he could not make a claim for breach of duty by the defendant.

Exclusion Clause: Duty of Care and Warning

In this case, it has been observed that Paul had gone to a golf club to play golf and after his shot, he moved towards his ball. However, at that circumstances, Wayne was also playing there and he made a shot accordingly. it has been observed that the ball threw by Wayne hit the eye of Paul and he had sustained certain damage. According to the provision of section 14 of the Civil Liability Act 2003, Paul was aware that if he goes to catch the ball during the course of playing, certain harm could be generated to him. he had assumed that the ball could not reach him and he has been hit. Further, according to the provision of the case mentioned there, it can be stated that Paul is restricted to make any claim against Wayne, as he was a player and he had no knowledge that the ball will hit Paul. Rather, Paul went there to catch his ball. Therefore, according to the provision of section 14 of the Act, Paul had taken all the obvious risks upon him and he is restrained to make any negligent act on behalf of Wayne.

Conclusion:

Therefore, it can be stated that Paul is restricted to make any claim from Wayne

The main issue of this case is to determine whether any action can be taken against the golf club regarding their negligent acts or not.

The subject matter of the case is based on the provision of negligence and exclusion clause. According to the general law, exclusion clause restricts the rights of the parties to a contract from making any defense to protect them. According to this rule, it is the duty of every party to a contract to make the other party aware of each business terms and in case a party has signed a document without knowing the facts of the case, the provision will not be applied on him. the principle of exclusion clause has been established in the case of Thornton v Shoe Lane Parking Ltd. (1971) 1 All ER 686. In this case, it has been observed that certain terms regarding the damage caused to any car had been printed on the backside of the ticket. However, the plaintiff had no knowledge regarding the terms and according to the court, the terms will not apply in case of the plaintiff. Further, the exclusion clause should be legal in nature (Stickley, 2016). According to section 11 Division 2 of the Civil Liability Act, breach of duty is an essential condition for the occurrence of harm and it is the duty of every individual to warn the parties regarding the risks. Further, the golf club authorities are fall under the category of professionals and according to section 22 of the Civil Liability Act; they are obliged to warn the individual about certain risks generated during the service.

Evaluation of Damages and Remoteness

In this case, it has been observed that the golf club authority has failed to make Paul warn about all the risks generated from the golf course. Further, certain clauses have been mentioned at the back of ticket that the authority will not held liable for any losses caused to the parties during the course of business. However, all the terms have been mentioned in small letters and Paul had not seen them. Further, the golf club authority did not drag the attraction by recite the provision to Paul. Therefore, this comes under the provision of the exclusion clause. Therefore, it can be stated that the golf club has failed to perform all their duties and Paul could claim damage from the authority’s act of negligence. Further, the club has failed to take standard duty of care by not providing fencing.

Conclusion:

Therefore, according to the provisions of exclusion clause, Paul can make claim against the golf club for breach of duties.

The fundamental issue of this case is to determine whether Paul can get all the damages caused to him for his personal injury.

The subject matter of the case is based on assessment of damage caused to the plaintiff. According to the general provision, the nature of the damage should be remote. That means the damage should not be foreseeable in nature. Chapter 3 of the Civil Liabilities Act 2003 deals with the provision of providing damage for pain and suffering caused to the plaintiff. However, according to section 52C of the Act, if any injury has been caused to any person who is liable under the contributory negligence, could not claim for damage sustained to him (Field, 2018). Further, the provision relating to the damage for loss of earning is dealt by section 54 of the Act. According to this provision, if the plaintiff can prove that the defendant was negligent regarding the performance of his duties and due to this, the plaintiff has lost his source of earning, he can make claim for that. However, it has been mentioned under section 55 of the Act, court will not calculate the amount of earning precisely. Further, it has been mentioned under section 59A (2) (a) (ii) of the Act that general damages of the injured will be assessed and the unforeseeable damages will not be assessed by the court. In addition, the court is required to assess the damage in respect of injury scale (Goudkamp, 2017).

In this case, it has been observed that Paul had sustained certain damages during playing golf and the amount of damage was very serious in nature. However, it has been mentioned that Paul had no knowledge about the vicinity of the damage and he had not claimed for any medical damage. After the medical report, it has been stated that his eye cortex was damaged and he could no longer act as a pilot and he had to take retirement from his job. Therefore, it has been observed that he had lost his earning and he had to sell out all his properties and assets to lead his life. It has further been observed that he had to sell all the properties in cheap price. Therefore, it can be stated that all the life amenities have been lost due to the injury. According to section 54 of the Act, Paul can claim damage from the golf club authority. However, he could not claim for all the damages that are not foreseeable in nature. Further, according to the case study, it can be stated that Paul was to certain extent liable for the damage sustained by him. Therefore, according to section 52C of the Act, he could not make full claim for the damages. Further, it was not possible for the club to assess the fact that he has all the personal liabilities and the injury could cause that much harm to him. Therefore, the provision of remoteness will be applied in this case.   

Conclusion:

Paul is advised to make claim from the Golf club for loss of his earning under section 54 of the Civil Liability Act 2003.

References:

Basten, J. (2018, March). Personal injury-contributory negligence. In Judicial Review: Selected Conference Papers: Journal of the Judicial Commission of New South Wales, The(Vol. 13, No. 4, p. 417). Judicial Commission of NSW.

Civil Liability Act 2003 (Qld)

Field, I. D. (2018). Contributory Negligence and the Rule of Avoidable Losses. Oxford Journal of Legal Studies.

Goudkamp, J. (2017). The contributory negligence doctrine: four commercial law problems.

Rakich v Bounce Australia Pty Ltd [2016] VSCA 289

Stewart, P. (2016). Drone Danger: Remedies for Damage by Civilian Remotely Piloted Aircraft to Persons or Property on the Ground in Australia.

Stickley, A. P. (2016). Australian torts law. LexisNexis Butterworths.

Thornton v Shoe Lane Parking Ltd. (1971) 1 All ER 68