Liability And Negligence In Personal Injury Case

Analysis of Relevant Legal Principles

The actual issue would be what shall be the claims (on grounds of negligence) that could be raised by the parties mentioned below, and what are the defenses that could be availed: -

• Thalia
• Odysseus
• Athena
• Poseidon

In Donoghue v Stevenson [1932] AC 562, the ‘neighbour principle’ had been applied, and it was ruled that a ‘duty of care’ shall be owed by a person in relation another individual so that the other individual does not suffer any injury or harm because of the acts of the person. In Grant v Australian Knitting Mills [1936] AC 85, the manufacturers were held liable in relation to the injury of the final consumer, which was caused due to the negligence of the manufacturers. In the case of Graham Barclay Oysters (“GBO”) v Ryan [2002] HCA 54, it was ruled that the company was not liable in relation to the injury of the final consumer because they gave effect to the necessary reasonable ‘duty of care’ in respect of the final consumer; the injury occurred even after such diligence and care.

Section 5B, as stated in Civil Liability Act 2002 (NSW), deliberates that any person will be regarded as negligent and unsuccessful in taking precaution against the danger or risk relating to the harm if (a) the risk was predictable and foreseeable (that is, the person should have had knowledge about the risk), and (b) the danger, risk or peril was substantial and relevant, and (c) any reasonable and sensible person would have taken the required precautions in the provided circumstances.

Section 5D, as stated in the Civil Liability Act 2002 (NSW), deliberates that it shall be decided that the particular negligent action actually caused the particular injury when the following elements are fulfilled: (a) that the particular negligent action was a pertinent condition concerning the occurrence or transpiring of the specific injury (that is, the factual causation), and (b) that it shall be correct to extend the scope of the negligent person’s liability to the particular injury, which has been caused to the plaintiff (the scope of the liability).

Section 5G, as state in the Civil Liability Act 2002 (NSW), specifies that in regard to the proceedings concerning liability due to negligence, any particular human being who actually suffers or aches any damage or injury, will be assumed or expected to be aware regarding the danger or risk of the injury (where the risk or danger is obvious), unless the particular human being proves (based upon the “balance of probabilities”) that he or she never knew about the danger or the risk.

In Wyong Shire Council v Shirt (1980) 146 CLR 40, it had been mentioned that when any human being causes any kind of professional negligence, thereby resulting in the harm or injury in relation to any other individual (due to the negligent action), then, in such situation, the human being will be considered to be liable or accountable in such regard, and that human being will be directed to pay or reimburse the compensation to the particular party who suffered the harm or injury.

Application of Legal Principles to the Case

Section 5R, as stated in the Civil Liability Act 2002 (NSW), a person (normally the particular claimant) will be considered to be contributorily neglectful if the person is unsuccessful in taking adequate precautions and safeguards against the predictable or expected risk of injury or damage. As per section 5S of Civil Liability Act, a defense relating to contributory negligence shall be able to defeat any specific claim entirely provided that it is determined by the court that a hundred percent reduction or lessening should be given in relation to the compensation.

In the provided circumstance, Thalia was under the influence of alcohol when she was working on the bicycle of Odysseus, and consequently was unable to the brakes correctly. Due to such action, Odysseus was in an accident with Athena, and they suffered personal injuries. In the accident, the manuscript that was written by Odysseus, was destroyed (and there was no other copy). This resulted in loss of Poseidon because the manuscript could not be published.

Applying Donoghue v Stevenson [1932] AC 562 and according to ‘neighbour principle’, it can be said that a ‘duty of care’ was owed by Thalia in relation Odysseus, however, she failed to do so, and consequently Odysseus suffered injury because of the acts of Thalia. Applying Grant v Australian Knitting Mills [1936] AC 85, Thalia can be held liable in relation to the injury of Odysseus and Athena, which was caused due to her negligence. Applying Graham Barclay Oysters (“GBO”) v Ryan [2002] HCA 54, it must be said that Thalia would be held liable in relation to the injuries of Odysseus and Athena because she did not give effect to the necessary reasonable ‘duty of care’ in respect of Odysseus and Athena.

Applying section 5B of the Civil Liability Act 2002 (NSW), Thalia will be regarded as negligent and unsuccessful in taking precaution against the danger or risk relating to the injury of Odysseus and Athena because (a) the risk was predictable and foreseeable, and (b) the danger, risk or peril to Athena and Odysseus was substantial and relevant, and (c) any reasonable and sensible person would have taken the required precautions in the Thalia’s circumstances.

Applying section 5D of the Civil Liability Act 2002 (NSW), it should be said that the particular negligent action of Thalia actually caused the particular injuries of Odysseus and Athena because the following elements have been fulfilled: (a) that the particular negligent action of Thalia was a pertinent condition concerning the occurrence of the personal injuries of Odysseus and Athena, and (b) that it shall be correct to extend the scope of the Thalia’s liability to the personal injuries of Odysseus and Athena due to the presence of factual causation.

Applying section 5G of the Civil Liability Act 2002 (NSW), Odysseus will be assumed or expected to have been aware regarding the danger or risk of the injury due to the obviousness of the risk, unless he is able to prove (based upon the “balance of probabilities”) that he never knew about the danger or the risk. In Athena’s case, the risk or danger was not obvious.

Applying Wyong Shire Council v Shirt (1980) 146 CLR 40, Thalia caused professional negligence, which resulted in the injuries in relation to Odysseus and Athena, and hence, in such situation, Thalia will be considered to be liable or accountable in such regard, and Thalia will be directed to pay or reimburse the compensation to Odysseus and Athena who suffered the personal injuries.

Applying section 5R of the Civil Liability Act 2002 (NSW), regarding the destruction of the manuscript of Odysseus, Odysseus will be considered to be contributorily neglectful because he was unsuccessful in taking adequate precautions and safeguards against the predictable or expected risk of injury or damage (he did not keep other copies). Thalia shall not be held liable in this regard. Applying section 5S of the Civil Liability Act, the defense relating to contributory negligence shall be able to defeat Odysseus’ claim if an order of hundred percent reduction or lessening in the compensation is given by court.

Conclusion

In conclusion: -

• Thalia will only be accountable for personal injuries suffered by Athena and Odysseus.
• Odysseus could demand compensation for personal injuries from Thalia, however, not in case of the devastation of the manuscript.
• Athena could demand compensation for personal injuries from Thalia.
• Poseidon may receive compensation from Odysseus.

Civil Liability Act, 2002 (NSW).

Donoghue v Stevenson [1932] AC 562.

Graham Barclay Oysters (“GBO”) v Ryan [2002] HCA 54.

Grant v Australian Knitting Mills [1936] AC 85.

Wyong Shire Council v Shirt (1980) 146 CLR 40.