Consider High Court’s decision in the case of Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317 to find that the claimants, Mr and Mrs Annetts, were owed a duty of care in negligence by the defendants, Australian Stations Pty Ltd.
An analysis of how the claim-right possessed by Mr and Mrs Annetts maps onto the Hohfeldian incidents. This essay requires you to discuss the nature of Hohfeldian claim-rights, and to outline how claim-rights such as those possessed by the Annetts’ fit together with the other types of Hohfeldian rights in a molecular conception of rights.
The Nature of Hohfeldian Claim-Rights
The plethora of the right assertions can be sorted through categorization. In order to understand what each of the asserted right exactly means, there is a need to be precise on how the rights have to be construed and what these right do. In order to analyse these rights, their form and their function has to be analysed. The form helps in clarifying the internal structure of rights and the function helps clarifying the description of what the right would do for the holder of the rights. The analysis of the most familiar rights shows that the right of private property or right to free expression covers a complex internal structure. These rights are deemed as an ordered arrangement of the basic components, in the very same manner as the molecules are ordered arrangement of chemical elements. The Hohfeldian incidents are the four basic components of rights, where the four basic elements are that of privilege, claim, power and immunity. These Hohfeldian incidents have a distinguishing logical form and these incidents are so fit with each other, particularly in such a unique manner, that these result in creation of complex molecular rights. In the following parts, an attempt has been made to discuss the very nature of the Hohfeldian claim rights. Once this is done, these claim rights would be applied to the case of Tame v New South Wales; Annetts v Australian Stations Pty Ltd. In this case, the court had held that the defendant did not owe a duty of care based on tort of negligence to the plaintiff. However, for the purpose of this discussion, the case would be discussed with regards the claim rights which were held by the plaintiff, by assuming that a duty of care had been owed in this case. This is done particularly to fit the claim rights possessed by claim rights with the other kind of Hohfeldian rights with regards to the molecular conception of rights.
Wesley Newcomb Hohfeld was an American jurist who became famous for his contributions towards the understanding of the nature of rights and the implications of liberty. Till the present day, the reflections of Hohfeld prove to be significant in nature. He noted that even the most reflected jurists used to conflate different meanings of the term ‘right’, which sometimes use to switch the sense of word several times, only in a single sentence. He had written that this vagueness in language indicated towards an associated vagueness of thought which had the same impact over the lawful conclusions. For facilitating reasoning and for clarifying the rulings, there was a need to disambiguate the term rights and this had to be done by breaking this term in eight different concepts. In order to give away with the lack of clarity, there was a need for these terms to be relative to the other, and for this, there was a need to group these in two pairs of four, which were of Jural Opposites and Jural Correlatives. The former covered the right no-right, privilege duty, power disability and immunity liability; whilst the latter covered the right duty, privilege no-right, power liability and immunity disability. The wordings right and privilege are corresponding to the concept of claim rights and liberty rights respectively.
Application of Claim-Rights to Tame v New South Wales; Annetts v Australian Stations Pty Ltd
The very first component of the Hohfeldian incidents is privilege or liberty. The individuals have a right to pick up a shell which is found by such person on the beach. This right is deemed as a privilege where a person A has the privilege to something, only in such a case where A does not owe a duty to that something. In other words, the right to pick the shell is available only when there is not duty to pick the shell. Hence, the duty would not be contravened as there is no duty owed to pick the shell, by deciding to do something else. In a similar manner, the right to paint a wall red or the right to sit in an empty cinema is a privilege. The privilege rights mark out what the bearer has no duty not to do. Where the presidents of USA invoke the executive privilege, there is a denial of assertion that they do not owe a duty of concealing evidence and here a Hohfeldian privilege is asserted.
The next incident is of claims. A contract which takes place between employer-employee gives the employee the right to be paid the wages. This right is deemed as a claim where A has a claim on B regarding something only when B has the duty towards A with regards to this something. To explain it properly, the employee is deemed to have a claim regarding the employer paying them the earned wages. This means that it is the duty of the employer towards the employee to pay these wages. So, it becomes clear from the explanation and the given example that every claim right is correlated to the duty which lies with a minimum of one duty bearing person. The differentiating factor regarding the claim right is that the duty of the duty bearer is owed to or is directed towards the right holder. Some of the claim rights exist in an independent manner owing to the voluntary actions, which is similar to signing of contracts and there are some claim rights which correspond to the duties in one or more agents. An example of this can be highlighted in the claim right of a child against the abuse, which exists in an independent manner from action of any person and that the claim rights of the child are correlated to the duty in every other person, for not abusing him. This would mean that the claim rights are in rem. This example also helps in illustrating the manner in which a claim right could put forward a requirement on the duty bearer to stop the performance of certain actions. The property and bodily rights are deemed as the paradigmatic rights which have the claim rights at their very core.
The claims and privileges had been defined by Hart as the primary rules as the primary rules, where it is stated that the rules put forward the requirement of the individuals to either perform something or to refrain from performing the specific actions. These primary rules are applicable for all the physical actions and analyse as the claims and privileges. Where all the claims and privileges come to be known, with regards to the physical actions, it would be known with certainty for each possible physical action, whether each of these actions is forbidden, permissible or requirement. The Hohfeldian incidents define the secondary rules of Hart by specifying the manner in which the agents can change and introduce the primary rules. The Hohfeldian power is deemed as such an incident through which the agents are able to alter the primary rules. As per this, the power is held by ‘A’ only when A has the ability of altering their own or any other person’s Hohfeldian incident. The captain of the ship has the power-right for ordering a person who has lesser authority than him, particularly the lower level people, to scrub the deck. This is because the captain has the power of changing the normative situation of the sailor by exercising this power, through which a new duty is imposed on the sailor which results in one of the Hohfeldian privileges is annulled, as the captain is not required to scrub the deck.
Molecular Conception of Rights
In a similar manner, a promisor exercises a power right of creating a claim in the promisee regarding the promisor to perform certain actions. The exercise of the power right by the promise to the power, results in the creation of a claim in the promisee that the promisor would do what has been promised. In a similar manner, a neighbour would waive their claim regarding no entering the property when such individual invites a person in their house, which results in the endowing of the corresponding privilege upon the invited person. Abandoning, selling, ordering, consenting, sentencing, promising and waiving are deemed as the examples of the acts through which the powers are exercised by the right holder for changing the Hohfeldian incidents of their own, or those of another people. Hence, the powers have the ability of altering the first order claims and privileges, along with the second order incidents. So, there is a power with the admiral regarding the power right to relive the captain of the command to ship, which is the captain’s power right. So, the authority of other is altered through power-rights.
The final Hohfeldian incident is immunity. Where A has the ability of altering the Hohfeldian incidents of B, it means that A has the power. Where A does not have the ability of altering the Hohfeldian incidents of B, it means B has immunity. The Australian government does not have the ability under the Constitution of Australia of imposing the citizens with the duty of kneeling before a symbol of Jesus or before a cross. This means that the citizens in such case have immunity. The immunity is deemed very basic element of the right of the citizens of the nation to exercise freedom of religion. In a similar manner, the civil servants have the right of not being dismissed where the power in the government is changed and the witnesses which are presented in the court have been given the right to not be coerced or threatened to say something. These rights are deemed as immunities which correspond to an absence of power in a particular party to modify the normative situation or a right holder in a certain manner.
Each of the atomic incidents, or the basic components, stated above can be deemed as a right where they take place in isolation. As has been stated earlier, these elements bond together in a unique manner to give rise to complex rights. The privilege and claim are deemed as first order right which gives the direct legal right to an individual. This privilege allows the person to be protected as a result of the duty owed to them by another, or could relate to the use of the computer which a person owes. The claims correlate to the duty towards the others to not use the property of another. The second order right covers immunity and power, where the legal rights with regards to the alterations of the first order rights are concerned. A person has different powers in context of the claim made by them, in the manner of waiver of this claim, annulment of this claim, or the transfer of this claim. The second order immunity stops the others from changing the first order claim over the property. This immunity stops another person from transferring, waiving or annulling the claim over the computer. These four incidents form a major part of the property right.
The first part of this discussion has been focused on the Hohfeldian incidents. These incidents, particularly the claim-rights how now been applied in context off the Annetts v Australian Stations Pty Ltd case. In this case, James was the son of Mr and Mrs Annetts who had been left by Mr and Mrs Annetts to work in New South Wales when he was sixteen years old, back in August 1986. This was done so that James could go and work with the defendant, who was located in the state of Western Australia. Annetts had questioned the defendant, i.e., Australian Stations Pty Ltd regarding the working conditions in Western Australia, where James was set to work, before they left their son with the defendant. The defendant informed the Annetts that their son would be working in a place in Flora Valley. Further, they were also told that the son of the plaintiff would be supervised at all time, and would get a shared room. The crux of the matter was that the defendant promised the Annetts that James would be looked after in a proper manner.
For seven weeks, James worked at the promised location. However, the defendant broke their promise when James was sent to work at a place which was a hundred kilometres away from Flora Valley, on October 13th, 1986. The defendant, for the very first time, became aware of the disappearance of James on December 03rd 1986 and had a strong belief that James was in a major danger, particularly one of grave injury or death. After three days had passed, the Annetts were informed about their son having gone missing. This information was given to the father over a phone and he was told that James had run away from his place of work. This information was given to him by a police officer of New South Wales. Upon hearing this sad news, Mr Annetts collapsed on the floor and the conversation was taken over by Mrs Annetts. On April 29th, 1987, after conducting a lot of search efforts, the skeleton of James was found. After the skeleton was analysed, it came to be known that James had died due to extreme exhaustion and dehydration accompanies by hypothermia, on December 04th 1986. James’ death took place in Gibson dessert which was located at a very far distance from where the defendant had sent James to work later on, which was a place hundred kilometres far from Flora Valley. It was claimed by the plaintiff that the defendant had been negligent, which resulted in the death of the plaintiff. They also made a case for psychiatric injury which they had to bear as a result of the death of their son, and this claim was made against the defendant.
The Court of Appeal in this case held that the plaintiff was not owed a duty of care due to lack of proximity and foreseeability. However, for the purpose of this study, it is assumed that a duty of care was owed by the defendants in negligence to Mr and Mrs Annetts. The claim rights dictate that Annetts had a claim against Australian Stations Pty Ltd under negligence, if and only if Australian Stations Pty Ltd owed a duty to Annetts under negligence. In other words, the Annetts get the right of making a claim against Australian Stations Pty Ltd when they owed a duty of care, based on the tort law of negligence. The key point here is that the claim right is born as the duty of Australian Stations Pty Ltd is directed at Annetts and is owed to them. This claim right is born voluntarily as the duty of applying care has to be applied by the defendants when their actions have the possibility of resulting in a harm to the plaintiff. So, Australian Stations Pty Ltd was required to take care of James as he was coming to work with them. They also had to carefully deliver the news to Annetts as it was very clear that they were concerned about the safety of their child from the very beginning. This can be affirmed from the number of enquires and questions made by Mrs Annetts before she sent James to work for Australian Stations Pty Ltd. A parent who is this concerned is bound to be shocked by such disturbing news and thus, Australian Stations Pty Ltd owed a duty of care towards the Annetts while informing them about their son.
The opposites and correlatives table covers the arrangement of four incidents in order to display the logical structure of the system devised by him. For filling out the tables, a further terminology was added in this table. This dictated that a person would have a claim than the person would be lacking a ‘no claim’, as this is the opposite of a claim. When it comes to the correlative, A would be deemed to have a claim where person B has a duty. When this context is applied to the case of Annetts v Australian Stations Pty Ltd, a claim would be present with Annetts when they lack a ‘no claim’. In other words, where they have a claim under tort of negligence, they would not lack the claim under negligence, in context of opposites. In context of correlative, Annetts would be considered to have a claim when Australian Stations Pty Ltd owed a duty towards them. This was true as per the assumption made for this study that Australian Stations Pty Ltd did owe a duty of care towards the Annetts. So, there are both opposites and correlatives with regards to the claim rights of the Annetts against Australian Stations Pty Ltd.
When it comes to the molecular rights, each of the atomic incidents has to be deemed as a right when the same takes place in isolation. These four atomic incidents are of privilege, claim, power and immunity and they bond together in a unique manner to give rise to complex rights. In the context of Annetts v Australian Stations Pty Ltd, these molecular rights are now analysed. The Annetts have the privilege to be owed care under negligence when they do not have a duty of care under negligence in this case. As explained earlier, they have a claim towards Australian Stations Pty Ltd only under negligence, when Australian Stations Pty Ltd had a duty towards A under negligence. The Annetts have the power only when they have the altering their own or of another person’s Hohfeldian incidents. In this regard, they had the power of altering the Hohfeldian incidents of James, as they sent him to work for Australian Stations Pty Ltd. Similarly, Australian Stations Pty Ltd had a power over James to send him 100 kilometres away from the Flora Valley. And this is true for Annetts as well, as Australian Stations Pty Ltd had the capacity of altering the mental peace and stability of the Annetts through the delivery of such traumatic news. Australian Stations Pty Ltd would be deemed to have the immunity where the Annetts do not have the ability of altering the Hohfeldian incidents of Australian Stations Pty Ltd. Here, the Annetts do not have the ability of changing the four incidents of the defendant giving the defendant the immunity in this case. The molecular rights revolving around this case has been presented in the table below.
The figure presented above shows the first order rights, which the Annetts directly have with regards to the tort of negligence. The privilege on the first level gives the entitlement to the Annetts to make use of this right, where they have to be safeguarded from the acts being undertaken by the other people, particularly by Australian Stations Pty Ltd. This gives them a privilege of being dealt with in a careful manner, as would be done by a reasonable person. The claim is related to the duty of the other people of not hurting or harming them, while they undertake their actions. In other terms, the claims give the Annetts the right against the breach of duty of care on part of Australian Stations Pty Ltd.
The second order rights are deemed as the legal rights which are related to the legal rights which can be resulted in changes in the first order rights stated above. The Annetts have different powers with regards of their claim; they can choose to waive this claim off by allowing the Australian Stations Pty Ltd to breach their duty of care; to annul their claim, by giving up the duty of care which was owed to them; or they can transfer their claim by making the duty of care not being owed to them, and instead being owed to James or someone else. Here, the Annetts could easily waive off their claim and state that Australian Stations Pty Ltd had not wilfully undertaken the breach or that the same was not reasonably foreseeable. This can also be done in the sense of lack of proximity between them and the news having being given in a segmented manner, instead of like a shock. In the second order, the immunity of Annetts could help them in changing their first order claims. Hence, this would restrict the waiver, transfer and the annulment of the claims of the Annetts with regards to negligence.
These four incidents result in constitution of the major part of the negligence related rights of the Annetts. Though, the Hohfeld incidents are qualified and these factors can still be changed. For instance, the immunity of the Annetts can be changed where the court finds that a duty of care was never owed to the Annetts. This could be for any reasons, including the ones established in the original case, i.e., of foreseeability and proximity. The qualification of these incidents carves out the shape of the negligence related rights of the Annetts; though, the basic shape is not affected. This can be deemed as true as here the Annetts are deemed to have been owed a duty of care, which would mean that the immunity would be upheld. The example was given just to showcase the possibility of the rights being affected in a basic; though, they would continue to hold the very basic shape of it.
On the basis of discussion carried on in the previous segments, it can be concluded that there are four key factors which come together to be known as the Hohfeldian incidents and these are privilege, claims, power and immunity. These incidents give rise to different rights and a combination of these four results in unique rights being granted to the individual. These four incidents are deemed as the crucial elements which are considered as the building blocks of rights. By arranging these incidents in a specific manner, these rights can be defended, asserted or described. These rights make it very clear for the person to understand what the rights of a person are and what can happen to them in particular situations. In context of jurisprudence, these continue to be a key learning as the present day rights are shaped from the Hohfeldian incidents. Included in the examples of these rights is that of freedom to religion, amongst the other. When these are applied in context of the case of Annetts v Australian Stations Pty Ltd, they highlight that the Annetts had different privileges, claims, power and immunity and these gave them different rights. The combination of these rights resulted in the molecular conception of rights, where the Annetts got the ability of making a claim against Australian Stations Pty Ltd for negligence. Thus, the aim of the discussion was met, as the different Hohfeldian rights, including the claim-rights were highlighted here, which were then applied to the case of Annetts to analyse their molecular conception of rights.
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