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Question:

Whether Anna in the Present Case Could File a Case against Trevor for the Act of Negligence or not?

 

Answer:

Introduction

Under the law of Tort, the term “ tort” has been established from a Latin term for “ harm”, and the aim of a claim for tort was basically to recover damages from the individual by the act of whom the other person has suffered harm. Though there have been different kinds of torts but the main tort which prevails in majority of cases was the tort of negligence (Hobart Community Legal Service, 2013).

Negligence has been an unintentional tort wherein an individual was harmed as a consequence of the actions of other individual (Pearson Education, 2010). As per the view of Winfield,” Negligence has been defined as a tort under which there was the contravention of a lawful obligation to take care which results in harm, undesired by the respondent towards the claimant” (Legal Services Commission of South Australia, 2017).

Negligence in its lawful sense have been defined as a failure in law to do act which a sensible individual would have done in the situations. It was in the precedent case of Donoghue v Stevenson[1932] AC 562 that the modern law of negligence was established (E-Lawresources,2017). But it was also stated in this case that for proving a act to be done negligently there have been 4 different elements which must be present. Also, the burden of proving an act to be done negligently have been imposed upon the claimant. So, in order to prove negligence against other individual a claimant must show that (McCormick and Murphy, 2017):

  • Obligation of Care: There was a duty imposed upon the respondent in the situations to take reasonable care;
  • Violation of Duty to take Care: It was the act or inaction of the respondent in the prevailing situations did not meet the standard of care which would have been taken by a reasonable person in such cases;
  • Harm suffered: The harm or damage have been caused to the claimant in the situations which a reasonable individual could have been predicted to anticipate;
  • Causation: The harm was suffered by the claimant by the contravention of the duty which was owed on the respondent to fulfill (Larson, 2016).

In Tame v NSW (2002) 211 CLR 317 it was concluded that the law takes no cognizance of the act of negligence in the manner of summary. It distresses itself with negligence only where there was a obligation to take sensible care and where failure in that obligation has caused harm.

 

Duty

The lawful obligation of a respondent towards a claimant was founded on the failure of the respondent in order to fulfill a duty which was renowned under law of which claimant was the anticipated recipient. The primary element which would be bear in mind for determining the existence of a lawfully documented liability was the idea of a duty. So, under the law of negligence the word used for such a liability was the duty of care (Rottenstein Law Group, 2017).

But a person would be liable for negligence, even if he or she did not act with rational care if they did not had a obligation towards the other person. So, under the tort law the concept of duty to take care was utilized in order to restrict the situations where a respondent was accountable for the harm of the claimant (Find Law, 2017).

The concept of duty of care has been regarded as the situations and the associations which were recognized under law as providing a growth to a lawful obligation to take care. A failure to take sensible care could conclude in the respondent being accountable to pay compensations to a person who suffered harm as s consequence of their contravention of the obligation of care.

As a result, it would be essential for the plaintiff to prove that the respondent owed a duty to take reasonable care towards them.

It was in Donoghue v Stevenson [1932] AC 562, that the subsistence of a concept of   duty of care for private harm and property harm was formerly decided by the judges (Hopcraft, 2015).

 


In another matter of Caparo Industries Plc v Dickman [1990] 2 AC 605, the judges took into consideration the situations in which a duty of care may occur. The tribunal outlined 3 major problems which a tribunal must take in view to institute whether or not a duty to take reasonable care was present or not. The 3 problems which must be there were:

  • There must be a sensible prudence of getting hurt;
  • There must be adequate closeness of connection among the claimant and the respondent;
  • It must be just, and reasonable to obligate a duty to take care.

In Rylands v Fletcher (1868) LR 3 HL 330 it was concluded that where there was a physical harm than obligation would comparatively easy to be recognized.

Therefore, in the current situation it could be stated that Trevor was a operator of the tour and  was responsible for the harm of the people who were there on the trip. As a result, Anna being a member among the people who were there so, Trevor would  said to have a duty of care towards her.

Breach

In order to establish a obligation under negligence, the claimant must depict on the equilibrium of chances that the respondent owed towards the claimant a obligation of care. Such an obligation to take care was violated by failing to meet the standard of care which was necessary and as a consequence harm was suffered by the claimant which was not too remote.

As, once it has been recognized that the respondent owed a duty towards the claimant than the matter of whether or not that duty was breached must be settled (Australian Government, 2017).

Breach of obligation therefore, needs the respondent to have been at error by not fulfilling their duty of taking reasonable care towards the claimant. But in shaping whether an obligation of taking care has been violated could be done by taking into consideration that whether the required standard of care have been taken or not.

 


Contravention of duty was not restricted to the experts or the individual under a written or a oral agreement. But also all the people of the community have an obligation to exercise sensible concern towards other individual and their belongings. So, an individual who employs in activities that pose an irrational danger towards other people and their belongings that in fact concludes in injury then such a person would be regarded in violation of his duty (The Law Handbook 2016, 2017).

In the case of Bolton v. Stone [1951] AC 850 it was recognized that a respondent was not be regarded as neglectful if the harm to the claimant was not a reasonable predictable result of his conduct. Also, it was stated that although the claimant suffered harm but she did not have a lawful assertion as the risk was not adequately predictable.

So, it was confirmed by the judges that in deciding whether the respondent has acted sensibly or was in violation of duty would be based upon 4 factors such as there was:

  • Probability of injury;
  • Seriousness of injury;
  • Cost of deterrence;
  • Utility of the conduct of the respondent.

In Paris V Stepney Borough Council [1951] Ac 367 it was held that the chance of the harm taking place was very small though but its effects were very grave. So, the defendant should have taken additional concern to grant goggles for the plaintiff.

In the current scenerio, there was a clear breach of duty of care on the part of Trevor which he owed towards Anna as she was a part of the team members on the trip and he left the team members alone and went for some work.  As Trevor got busy with another work and due to his lack of attention Anna suffered harm.

 Also, it was dark in the evening when the team returned and it was clearly observed by Trevor that there was situation to have foreseeable harm due to a Frogmouth perched in a tree so there was a lack of duty. So, Trevor should have advised the members of such harm. And Trevor did not told the members about the harm so it could be concluded that there was a clear contravention of his obligation to take care towards all of the members.

So, a consequence of such act Anna’s heal was caught on a tree root due to which she endured knee harm therefore, Trevor would be regarded to be in breach.

Damage

Damages for the harm which has been suffered by the claimant could be claimed by him against the respondent if it would be established that the respondent have violated his duty towards the claimant under law (Bits of law, 2013).

If a person wants to claim damages from a person for the injury caused by the negligent act of such person then the claimant must show that:

The respondent acted in a negligent way and was found to be guilty of not fulfilling his duty which he owed towards the claimant;

Then evaluation of the sum of proper damages which would be granted would be done by the court. The court would make a differentiation on the point that damages would be considered as special or general damages (Bits of Law, 2013).

Special damages: It includes paid off out-of-pocket costs. It comprises of medical and ambulance price, and many more.

General damages: It includes loss of earning capability in the future, tenderness and pain, etc.

But in this case, damages would not be paid off to Anna as she was contributory negligent. Because the harm caused to Anna was not only due to the negligent act of Trevor but also due to her own carelessness. So, Trevor had taken defence of Contributory negligence.

Defence

Even when a case have been brought against the respondent stating that he acted in negligent way, Then also he has a defense to take i.e contributory negligence. Also, such a defense could be taken only when the respondent could prove that thought he was neglectful on his part but the claimant also did not take reasonable care in protecting herself and have exposed herself to danger (Find Law, 2017).

Basically, against a claim of claimant against the respondent there have been 3 defenses which he could take but mainly the defense which was taken in the case of negligence was contributory negligence.

 


As per the need of this concept of contributory negligence it was clearly confirmed that if a person has failed to take rational care for his own safety or harm then such a person would be said to be contributory negligent (Laws, 2017).

In Badger v Ministry of Defence [2005] QBD D it was concluded that as the claimant himself did not take rational care for his own security so he would be contributory negligent against a defendant for his loss and as a result could not claim compensation.

So, in the present scenario, though it was Trevor had a obligation of care towards all the members as when Anna removed her shoes and wore other shoes he was watching the rare Marbled Frogmouth perched in a tree which could have caused anticipated harm. But he did not warn her so he was negligent on his part. At the same time, he could held Anna also contributory negligent as Trevor told all the members previously that they must wear shoes which was provided but she abandoned to follow so there was a obvious act of contributory negligence. 

Remedies

So, as in the cases of negligence the remedy provided majorly was the grant of damages but not where there was a predictable harm. But in this case, there would be fewer amounts of damages which would be paid as there was contributory negligence on the part of both the parties (Legal Aid, 2015).

In Overseas Tankship (UK) v Morts Dock and Engineering Co (The Wagon Mound) (1961) it was upheld that the respondents were not held liable as the harm  caused was predictable.

Conclusion

At the end it could be concluded that in current scenario as the injury which was caused was predictable and it was the claimant himself who did not take care of her own protection, so there was a collaborative error on the part of both the individuals. But there was a contravention of the obligation on the part of Trevor to take case as he left the members alone at a new place.

But in the case if Anna it would be considered that as Trevor told to all the members that they must wear shoes as it was risky and it was her who inaccurately ignored his orders. So, she could not claim Trevor completely liable for the harm.

 

References

Australian Government. (2017) Fault. [Online] Australian law Reform Commission. Available from: https://www.alrc.gov.au/publications/7-fault/negligence [Accessed on 22/2/17]

Bits of law. (2013) Damage: Causation. [Online] Bits of law. Available from: https://www.bitsoflaw.org/tort/negligence/study-note/degree/damage-causation-factual-legal [Accessed on 22/2/17]

Bits of Law. (2013) Remedies: Damages. [Online] Bits of Law. Available from: https://www.bitsoflaw.org/tort/negligence/study-note/degree/remedies-damages-principles-special-general [Accessed on 22/2/17]

E-Lawresources. (2017) Negligence. [Online] E-Lawresources. Available from: https://e-lawresources.co.uk/Negligence.php [Accessed on 22/2/17]

Find Law. (2017) Contributory and Comparative Negligence. [Online] Find Law. Available from: https://injury.findlaw.com/accident-injury-law/contributory-and-comparative-negligence.html [Accessed on 22/2/17]

Find Law. (2017) Elements of a Negligence Case. [Online] Find Law. Available from: https://injury.findlaw.com/accident-injury-law/elements-of-a-negligence-case.html [Accessed on 22/2/17]

Hobart Community Legal Service. (2013) Negligence and the Duty of Care. [Online] Hobart Community Legal Service. Available from: https://www.hobartlegal.org.au/tasmanian-law-handbook/accidents-and-insurance/negligence/negligence-and-duty-care [Accessed on 22/2/17]

Hopcraft, S. (2015) What is the definition of negligence?. [Online] Wright Hassall.Available from: https://www.wrighthassall.co.uk/knowledge/legal-articles/2015/04/23/what-definition-negligence/ [Accessed on 22/2/17]

Larson, A. (2016) Negligence and Tort Law. [Online] Expert Law. Available from: https://www.expertlaw.com/library/personal_injury/negligence.html [Accessed on 22/2/17]

Laws. (2017) Contributory Negligence. [Online] Laws. Available from: https://negligence.laws.com/contributory-negligence [Accessed on 22/2/17]

Legal Aid. (2015) Negligence. [Online] Legal Aid. Available from:https://www.legalaid.wa.gov.au/InformationAboutTheLaw/BirthLifeandDeath/Personalinjury/Pages/Negligence.aspx [Accessed on 22/2/17]

Legal Services Commission of South Australia. (2017) What is negligence?. [Online] Legal Services Commission of South Australia. Available from: https://www.lawhandbook.sa.gov.au/ch29s05s01.php [Accessed on 22/2/17]

McCormick and Murphy. (2017) Understanding the 4 Elements of Negligence. [Online] McCormick and Murphy. Available from: https://www.mccormickmurphy.com/diy/liability/negligence/ [Accessed on 22/2/17]

Pearson Education. (2010) Negligence and Unintentional Torts. [Online] Pearson Education. Available from: https://wps.prenhall.com/ca_ph_blair_law_1/2/538/137983.cw/index.html [Accessed on 22/2/17]

Rottenstein Law Group. (2017) What is “negligence”?. [Online] Rottenstein Law Group. Available from: https://www.rotlaw.com/legal-library/what-is-negligence/ [Accessed on 22/2/17]

The Law Handbook 2016. (2017) Negligence, liability and damages. [Online] The Law Handbook 2016.  Available from: https://www.lawhandbook.org.au/10_01_01_negligence_liability_and_damages/ [Accessed on 22/2/17]

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