Negligence Action And Legal Defenses

1.Daniel was a first grade league player of Western Tigers Rugby League Football Club. During a friendly game against the Parramatta Storms Rugby League Club (the “Parramatta Storms”), Daniel was tackled by Jack and Bronco, two Parramatta Storm players while carrying the ball forward. He was picked up off the ground and slammed bead first back into the ground by the two players in what is known as a “spear tackle”. As a result of the tackle, Daniel was seriously injured and was forced to retire from the game at the peak of his career. Arising from the incident in which Daniel was injured, the two Parramatta Storm players were charged by the National Rugby League with having made a dangerous throw in that in “effecting a tackle on Western Tigers’ player Daniel, they lifted him to a dangerous position causing him to fall head first to the ground”. A dangerous throw is described under Section 10 of the National Rugby League’s Laws of the Game as “If in any tackle or contact with an opponent, that player is so lifted that he is placed in a position where it is likely that the first part of a player’s body to make contact with the ground will be his head or neck (the dangerous position) then that tackle or contact will be deemed to be a dangerous throw unless with the exercise of reasonable care that the dangerous position could not have been avoided.” Both Jack and Bronco have pleaded guilty to the charges against them.

Discuss if Daniel can bring a negligence action against anyone; and if there are any legal defences available to them? You must cite and discuss relevant case law principles to support your arguments in your answer.

 

2.Harry is an engineer working in a project management in a merchant bank. His girlfriend, Zara is a town planner. They have been living together in a rented flat for five years. In late 2010, they decided to think about investing together as well as buying a house. Harry discussed this with his work mates and friends Steve and George who were in various investment divisions in the bank. Steve is a commercial lawyer and he told Harry that getting in the Sydney real estate market is the best investment around. George is a financial adviser and he agreed with Steve that real estate was generally best although he said that there had been rumours about Federal Capital Gains taxes being increased to a higher rate. Harry passed all this information to Zara who also told her mother Hilary. Harry and Zara borrowed $650,000 from the bank and used this and their savings to buy property at Parramatta. They rented the property to some 6 | P a g e students from UWS and moved in with Hilary in her home to save some extra money. Hilary sold most of her bank shares and bought another property close to Parramatta which she rented to students from UWS as well. Harry, Zara and Hilary did not try to get any other financial advice before investing in real estate market. In April 2012, the government of New South Wales announced a mini budget and imposed a new land tax on all investment properties. The property market in Sydney collapses and Harry, Zara and Hilary discover that their properties are now worth less than 80% of what they paid for it earlier in 2010. Hilary is particularly upset as her shares would have maintained their value if she had not sold it to buy the investment property. As a result of the investment disaster Hilary suffers severe stress leading to clinical depression. She is unable to work in her usual occupation again.

Advise Harry, Zara and Hilary of any right they may have in this situation in the law of Negligence ONLY, giving full legal authority for your answers. Against whom would those rights, if any be exercised, and why?

The key issue, in this case, is whether Daniel can file a suit for negligence against Jack and Bronco and what legal remedies available to them?

A person held liable for negligence in case he/she failed to exercise standard and ethical care which is expected by him to exercise amongst specific circumstances which cause damage to another person or property. In simple words, failure to maintain a standard of care which is expected by a reasonable person in the particular situation is referred as negligence. Section 5 of the Civil Liability Act, 2002 provides that a party can be held liable for negligence if he/she failed to exercise required skills and care which cause harm to another party. Harm includes death, personal injury, damage to property and economic loss. While filing a suit for negligence, three elements are necessary to be fulfilled. The first element is duty of care. Section 5B provides that a person cannot be held liable for negligence until it is proven that the risk was significant and the person took no precautions. It is necessary that the parties must have a proximity relationship and the risk was foreseeable. In case of sports, the duty of care exists between two competitors, coach to competitors and others. In this context, Condon v Basi is a helpful case. In this case, the claimant's leg was broken due to a tackle from the defendant while playing in a football match.

It was held by the court that the standard of care varies based on the expertise of a player. The court provided that the tackle of the defendant was reckless, and he failed to maintain a standard of care which is expected from a local league player. The court further provided that although the players accept the risks of injury which are inherent to the sports activities, however, they did not accept the risk of injury which is outside the rules of the game. Another key element of negligence is that the party must owe a duty of care. This element can be understood by the case of Vaughan v Menlove. In this case, the defendant paced a stock of hay near the cottage which was owned by the plaintiff. The defendant further received a clear warning that there was a substantial risk of fire; however, the defendant did not take any precautions. The hay eventually ignites and burned the cottage of the plaintiff. The court held that the defendant owed a duty of care, and he failed to fulfil such duty due to which the plaintiff suffered loss, thus, the plaintiff has a right to recover damages. The final element of negligence is that the plaintiff must suffer loss due to the breach of duty by the defendant.

In Barnett v Chelsea & Kensington Hospital case, the court provided a “but-for” test. This test provided that the plaintiff would not have suffered damages, but for the actions of the defendant, he suffered loss. Thus, a suit for negligence can be filed by him. Furthermore, the principle of vicarious liability as given in the common law provides that the employer can be held liable for the actions of his/her employee. In Benjamin Collett v Gary Smith & Middlesbrough Football and Athletics Club case, Collett was playing for Manchester United, and he tackled the defendant that caused a fracture. Collett filed a suit for negligence against Middlesbrough FC rather than Smith based on the principle of vicarious liability. He held that the club is liable for the action of its players. The court accepted the appeal and held that the club is liable to pay damages to Collett. In the case of negligence, the defendant can rely on the defence of voluntary assumption of risk to protect himself. In Wooldridge v Sumner case, the court held that the defendant is not liable for negligence based on the principles of voluntary assumption of risk because the consent given by the claimant covers the loss suffered by him and the defendant did not breach his duty.

In the present scenario, Daniel is required to prove the elements of negligence in order to hold Jack and Bronco liable for damages. As discussed above, the proximity in the relationship of parties decides whether a duty of care exists or not. In this case, both parties were competitors of each other, thus, they have a proximity relationship, and the duty of care exist as discussed in the case of Condon v Basi. Both Jack and Bronco owed a duty of care to Daniel, and the injury suffered by him was foreseeable as well. Section 10 of the National Rugby League’s Law clearly provides that tackling a player in such a way that his head or neck hits the ground first is against the law. The risk of harm was present, and both Jack and Bronco did not take appropriate actions to prevent the loss as discussed in Vaughan v Menlove.

Furthermore, Daniel would not have suffered a serious injury, but for the negligence of Jack and Bronco and due to their breach of duty he suffered serious injury, thus, the injury was a direct result of actions of Jack and Bronco as per the “but-for” test given in Barnett v Chelsea & Kensington Hospital case. Thus, Daniel can successfully file a suit of negligence against Jack and Bronco. Furthermore, the principle of vicarious liability discussed in Benjamin Collett v Gary Smith & Middlesbrough Football and Athletics Club case which have similar facts applies to this case as well. Daniel can hold Parramatta Storms Rugby League Club liable for the actions of its player and demand damages. In their defence, Jack, Bronco and the Club can cite the defence of voluntary assumption as discussed in Wooldridge v Sumner case. However, Daniel never agreed to accept the risk of illegal move, thus, the defence of voluntary assumption of risk cannot apply to this case.

In conclusion, Daniel can file a suit of negligence against Jack, Bronco and the Club to demand damages because he suffered serious injury due to negligence of Jack and Bronco. Moreover, the defence of voluntary assumption of risk cannot apply to this case

The key issue is whether Harry, Zara and Hilary can file a suit of negligence to recover damages?

The principle of negligent misrepresentation provides that a person is liable if he made a careless representation without having a reasonable base to believe that that the statement is true. Generally, the common law provides that a suit for negligence cannot be filed by parties in case they suffered an economic loss as given in Spartan Steel & Alloys Ltd v Martin. However, a suit can be filed in case the economic loss is caused due to negligence misrepresentation. The concept was introduced in the case of Hedley Byrne & Co Ltd v Heller & Partners Ltd. In this case, the claimant seeks advice from the defendant, and due to the default of the defendant, the claimant suffered economic loss. It was held by the court that the defendant is liable under negligent misrepresentation since the claimant makes the reliance over his advice, and he owed a duty of care.

In the present scenario, Steve and George did not have any basis to claim that investing in Sydney Real State is a good idea for investment. They also failed to inform Harry that there is the possibility of rise of tax rates in the nearby area. Harry, Zara and Hilary made the investment based on the advice of George and Steve. As discussed in Hedley Byrne & Co Ltd v Heller & Partners Ltd case, the reliance was made by the parties on the advice of Steve and George, thus, the case of negligent misrepresentation can be filed. Harry, Zara and Hilary suffered economic loss due to the advice of Steve and George, and Hilary suffered from clinical depression.

As per section 5 of the Civil Liability Act, 2002, parties can file a suit for damages which are caused due to personal injury and economic loss. A duty of care was present due to the proximity of relationship between the parties. Moreover, the risk was foreseeable. The loss suffered by the parties is directly related to the negligent misrepresentation of Steve and George. Thus, a suit for negligent misrepresentation can be filed by the parties against Steve and George to recover damages.

In conclusion, Harry, Zara and Hilary can file a suit for negligent misrepresentation against Steve and George to claim damages for the economic loss suffered by them. Hilary can also file a suit for damages for the mental injury suffered by her

Books/Journals/Articles

Barker, K et al, The Law Of Torts In Australia (Oxford University Press, 2012)

Gergen, M, ‘Negligent Misrepresentation As Contract’ (2013) 101 Cal. L. Rev.

Goldring, J, ‘Civil Liability Law Reform In Australia : The "King Of Torts" Is Dead’ (2005) 10(3) Uniform Law Review - Revue de droit uniforme

Harvey, B and Marston J, Cases And Commentary On Tort (Oxford Univ. Press, 2009)

Klement, A and Procaccia Y, ‘An Economic Analysis Of Reliance In Market Fraud And Negligent Misrepresentation’ [2013] SSRN Electronic Journal

Sappideen, C, Vines P and Watson P, Torts (Thomson Reuters (Professional) Australia Pty Limited, 2016)

Case Laws

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

Benjamin Collett v Gary Smith & Middlesbrough Football and Athletics Club [2008] EWHC 1962 (QB)

Condon v Basi [1985] 1 WLR 866

Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465

Spartan Steel & Alloys Ltd v Martin [1972] 3 WLR 502

Vaughan v Menlove [1837] 132 ER 490

Wooldridge v Sumner [1963] 2 QB 43

Legislations

Civil Liability Act, 2002

Common law – Tort of Negligence

Others

Austlii, CIVIL LIABILITY ACT 2002 (2018) Austlii <https://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/nsw/consol_act/cla2002161/>