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Scenario Analysis

We will begin your tutorial by welcoming you to Law 1117 Torts 1. The tutor will make some general comments on the prescribed and recommended texts. You will be invited to discuss your expected learning outcomes from Law 1117, and your tutor will review the unit plan, and the study guide with you.  We will also briefly consider the questions set down for the Week 2 tutorial.

In your week 1 readings and in the lecture, the function and purpose of the law of torts was examined. It is clear that a fundamental aim of the law of torts is to provide compensation for injury suffered. Consider the following scenarios, which are taken from real cases which we will be reviewing over the next couple of weeks (if more information is required to answer the questions, then identify what further information is required and why this further information would be relevant): 

a). Helen is waiting at a station to catch a train. Two men run up to a departing train, carrying a package. The railway guards try to help them get aboard, but the package is dropped. The package contains explosives. The package explodes when dropped, causing some scales on the platform to fall over on top of Helen. Can Helen sue the railway company successfully, and if so, why?

b). Nadia is drunk and falls off a cliff in a national park, causing her to become a paraplegic. Can Nadia sue the park manager successfully, and if so, why?

c). At a cricket match, a batsman hits a cricket ball over a seven foot high fence and the ball strikes Bessie, who is standing outside her house across the road from the cricket ground. Can Bessie sue the cricket club successfully, and if so, why?

d). Edward receives HIV infected blood during a blood transfusion. Can Edward sue the blood-bank successfully, and if so, why?
 

a) Issue- In this case, Helena was waiting at the station when the railway guards were helping two men two to board the train. In a hurry, they dropped a package-containing explosive, which exploded and caused injury to Helena. The issue, in this case, is whether she can claim damages for the injury sustained by her due to the explosion.

Rule- Section 5B(1) of Civil Liability Act 2002 states that a person will be held liable for the injury caused by him failing to take necessary steps of precautions against the risk, which was easily foreseeable by him, he knew the risk was significant and any reasonable, prudent person would have taken the necessary precautions against such risk[1]. 

Legal Rule and Its Application

Section 5B (2) of this Act states the following considerations to ascertain whether the person has acted reasonably and had taken reasonable precautions against the risk of harm-

the probability of the occurrence of the harm if due care and precaution are not taken,

the degree of seriousness of the harm,

the burden of taking the necessary precaution to ensure that the risk of harm is avoided,

the social utility of the action, which created the risk of harm[2].

Application- In this case, the two people were aware of the fact that they were carrying explosives in the bag which is a dangerous object and is very likely that it would cause harm if it is not handled with due precautions. The railways guards were helping them so it is understood that even they were aware of the explosives. Thus, they were not supposed to make hurry with such dangerous articles as the consequence of the explosion is very serious. They must have observed reasonable precaution while handling with them as the harm is easily foreseeable by any prudent person[3].

Conclusion- The logical conclusion is the railway authority is guilty of tort for failing to undertake the duty of care. It was their duty to inspect the bag and should have acted accordingly as explosions are not supposed to be carried in public transport and if it carried then, it must be carried with due care and precautions. As the explosion was due to the failure of duty of care Helen can file a suit against the rail authority and can claim for damages[4].

b) Issue- in this case Nadia was drunk and climbed on a cliff in the National Park. He accidentally falls from there and suffered from the paraplegic. The issue, in this case, is whether Nadia can file a suit against the Nation Park manager.

Rule- Section 5L of this Act says that no person will be entitled to compensation for the harm caused due to the act or the omission of the act when at the time of the act or omission the person was intoxicated. The degree of intoxication will be held reasonable when such intoxicated person will be unable to exercise reasonable skill and care. However, this Section provides an exception to those people to whom the alcohol was induced without his knowledge and was not self-induced. Moreover, in the cases where the plaintiff can prove that his intoxication was not the cause of the harm inflicted or did not contribute in any way for the occurrence of the harm[5]. 

Conclusion

Application- In this case, Nadia was intoxicated when he climbed the cliff so he will not be entitled to any compensation if he files a suit against the National Park Manager. The National Park manager had not induced him the alcohol nor he had acted in any way that could inflict harm on him. It was very natural that he had fallen off from the cliff due to the intoxication[6].

Conclusion- Thus we find that the National Park manager will not be liable to pay the compensation to Nadia for his paraplegic as he was intoxicated at the moment when he climbed on the cliff and was unable to retain any reasonable skill or care due to which he fell off from the cliff. However, he can always plead on the ground that someone had induced alcohol to him without his knowledge.

c) Issue- In this case Bessie was standing near his house when a cricket ball hit her. The batsmen hit the cricket ball over seven feet high fence in the course of the game. The issue, in this case, is whether Bessie can file a suit, claiming compensation for the harm caused to her, against the cricket club.

Rule- Section 5E of this Act includes those people who engage themselves in any pursuit or activity for the enjoyment or relaxation at any place where people are ordinarily engaged in sports such as a park, open space or bench under the term recreational activities[7]. Section 5I states that a person will not be held liable to pay compensation if the plaintiff had engaged in the recreational activities and in the due course, he had sustained any harm if the risk was subjected to risk warning to the plaintiff. The risk warning could be made orally or in written form and it is immaterial whether the person had received or understood the warning[8].

Application- As Bessie was standing near a cricket club it was very likely that she could get injured in the course of the match. She is immaterial whether she took attention to the risk warning attached to the cricket club. Bessie will be included under the definition of recreational activities as she was in the open space near the place where sports are ordinarily played. Hence, she will not be entitled to get any compensation for the injury sustained by her against the cricket club as she was standing near her home so she was aware of the risk warnings of the cricket club[9].

Conclusion- Bessie knew the presence of the cricket club near her house and being a prudent person she had reasons to believe that she might get hurt in the course of the sport played inside the club. The cricket club does not have to prove whether Bessie understood the risk warning. Hence, Bessie cannot claim compensation as the issue falls under the division of recreational activities of this Act[10].

d) Issue- Edward had undergone a blood transfusion and in the course, she got infected. The blood so transferred had HIV, which was made available by the blood bank without testing it and thus endangered life.

Rule- Section 5B of the Act states that a person will not be held liable for any harm caused due to his fault for failing to take precautions against a risk of harm unless the risk was foreseeable, significant and could easily be averted if he took proper precautions.

The court will consider the probability of the occurrence of the harm if proper precaution was not taken, the seriousness of the harm, the burden of taking precaution to avoid the risk of harm and the social utility of the activity that would create the risk of the harm.

Application- It was the due duty of the blood bank to ensure that the blood supplied by them is free from any hazardous disease. The presence of any disease in the blood will infect the recipient person. This risk was significant and any reasonable person should have taken due care before blood transfusion. Thus, there was a breach of duty on the part of the blood and therefore, Edward can successfully file a suit against the blood bank for the recovery of compensation[11].

Conclusion- There is every possibility that if the blood is not tested before transfusion, it will infect the person if there is the presence of any disease in the blood. Disease via blood transfusion has serious consequences and its social utility creates a risk of harm. Thus, Edward can sue the blood bank for their negligence as the harmful disease had infected him. Being a layman, it is very likely that Edward would not have the knowledge about the presence of disease in the blood so it was the part of their duty to ensure that they provide blood free from any disease. Thus, the blood bank will be liable to pay compensation to Edward[12]. 

Reference                  

A User's Guide To The Civil Liability Act 2002 (NSW) - Colin Biggers & Paisley (2016) Cbp.com.au

Allen, Judy, et al. "Privacy protectionism and health information: is there any redress for harms to health." J Law Med 21.2 (2013): 473-85.

Barnet Jade - Find Recent Australian Legal Decisions, Judgments, Case Summaries For Legal Professionals (Judgments And Decisions Enhanced) (2016) Jade.

Beazley, M. J., 'Causation and Statutory Determinism: The Civil Liability Act 2002 (NSW), s 5D' (2013) 87 Australian Law Journal 591

Carroll, Robyn. "Apologies as a legal remedy." Sydney L. Rev. 35 (2013): 317.

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