Discuss About The Obtaining Remedy Element Of Actual Damage?
This report revolves around the negligence case of Hackshaw VS Shaw. In this case, there is a tort of negligence. Tort means any wrong act by one party to another which gives rise to an illegal act or which results in an injury to the plaintiff. Basically, tort is based on breach of duty. Because of this illegal act, a civil action of a court of law occurs against the party who has committed wrong act. The major elements of tort of negligence includes: element of fault, element of obtaining remedy and element of actual damage. Element of fault arises when the plaintiff have the evidence that the party has done a tort act. In the element of obtaining remedy, the law of tort is about giving compensation to the plaintiff rather than punishing the person responsible for the tort (Barnett and Harder, 2014). The element of actual damage is related to the evidence that the plaintiff have to prove that the injury has taken place because of the tort act. This report explains the facts of the case, the issues raised by both the parties, the arguments made by the plaintiff and the defender and the judgement given by the court. The report is in the favour of plaintiff and includes a proper analysis of why the plaintiff is stronger than the defender. If a case is having these four elements then it comes under negligence case. This report also describes the evidences showed by the plaintiff to win the case. The elements are breach of duty, actual harm, duty of care and casual connection. This case has all these elements so it is a negligence case (Goudkamp and Plunkett, 2017). The visitors can be categorised as licensees, trespasser, contractual, invitees and entrants with a right. This case is related to the trespasser visitor.
Shaw was acquiring a farm for storing the petrol. The petrol was stored for farming machinery. But once at night, the petrol was being stolen. Shaw decided to find out who was stealing the petrol.
Another night, Shaw was waiting near the petrol tank to see who was stealing the petrol. Suddenly, one Cox drove into Shaw’s farm and the headlights of the car were turned off. Hackshaw was in a stolen motor vehicle with Cox. When the Cox started stealing the petrol, two warning shots were fired by Shaw at the car because thief is standing next to the car and Hackshaw get injured by the shots as she was sitting at the front seat of the car. Later, Shaw accepted that he was unaware about Hackshaw that she was in the car. But Hackshaw wants to sue him for the injury done to her and demanding compensation for the injury. Here, the plaintiff was a trespasser. Trespasser means an intentional act by the defender to injure the plaintiff (Loughnan, 2017). The elements of trespass include no lawful justification, intentional fault and injury caused to the plaintiff.
Elements of Tort of Negligence
Raised by plaintiff: The defendant has breached the duty of care towards the plaintiff. Though the defendant is the owner of the land but it is his responsibility to follow the duty of care. Due to the irresponsibility of the defendant towards the duty of care, the plaintiff is being injured. Shaw does not have any right to injure Hackshaw because of the reason that she has entered in his property without permission. Did the defendant breach the duty of care? In the given case, is the defender responsible for providing the duty to give safety measures to the people in his property? Did the defender know that a person other than Cox was sitting in the car?
Raised by defendant: According to the defendant, it is the mistake of the plaintiff that she entered in the property of the defendant without his permission. Shaw accepted that he did not know about the fact that plaintiff was sitting in the car (Dyson, 2015). Another issue raised by the defendant is that the plaintiff was responsible for her safety. The plaintiff was involved in the criminal act at the time of injury.
In this case it was argued by the plaintiff that the defender owes a duty of care against the plaintiff that his rifle did not injure the plaintiff. It was also argued by Hackshaw that Shaw was aware about the fact that Hackshaw was sitting on the front seat still he started firing on the car without thinking about the injury that could be done to Hackshaw due to his rifle (Cane, 2017). But Shaw denied this argument. The law does not allow any person to shoot the other person who has entered his or her property without taking his or her permission. Another argument is related to restriction on the use of excessive force by the land owner. The defendant argued that he fired on the engine of the car. If the defendant was aware that someone other than Cox was in the car, was he guilty of the negligence done by him? Can a trespasser can sue the owner of the property if the trespasser becomes injured on his or her property.
The court made the decision in favour of the plaintiff. As it is the liability of the occupier and as per the duty of care, the occupier is responsible for the security of any person which has entered his property. So, Shaw has to shoot in such a way that it could not harm anyone (Walmsley, et al., 2015). For the negligence of the passenger sitting in the car, the farmer was held responsible. The defender is defending himself by the statement that he was not aware whether someone is there inside the car but according to the court it is his duty to take due care while shooting. Shooting at the car leads to the danger of injuring a person in the vehicle, which would have been reasonably foreseen by the farmer. According to the High court of Australia, if a land owner injures a thief by using unreasonable force then the land owner is liable for the injury done to the thief and the land owner is also responsible to provide compensation to the thief for the injury done to him or her. As per the rules of court, the use of rifle was considered as excessive force and it increases the risk of injury to the plaintiff. The court gave the decision that Shaw has to provide compensation to the plaintiff for the mistake done by Mr. Shaw whether intentionally or negligently (Ryan, 2017).
Case Analysis of Hackshaw v Shaw
The report is in the favour of plaintiff i.e. Miss. Hackshaw. She is the girlfriend of the thief according to the case. The judgement of the court was in favour of plaintiff because the plaintiff was having all the evidences that proved this case as a case of negligence (Quill and Friel, 2016). First point to be considered is the breach of the duty of care. It is duty of the defender to make sure that nobody is sitting in the car before shooting. The defender’s main target is the thief next to car but he has injured an innocent person negligently. The plaintiff won the case because her case is stronger than the defender because she gets injured because of the defender which proves his carelessness in performing the duty of care (Bartlett, 2017). Hackshaw had contributed to the injury by illegally entering Shaw’s property. The court also considers the risk of injury to the plaintiff whether the risk is less, medium or high and also the age of the plaintiff. Here, the risk of injury is high and the age of the plaintiff was just 17 years. The defendant owed a duty of care under the principles of negligence to the plaintiff. Shaw does not have the power to harm the person entering to his property without taking his permission. If any person is on the land of the occupier as trespasser, then the occupier does not have the right to give rise to the foreseeable risk of proximity. Duty from being owed cannot be prevented by the engagement of plaintiff in the illegal act at the time of injury (Fulbrook, 2017).Another critical point is that the trespasser only needs an evidence of the injury or damage rather than the actual damage. The main idea behind the compensation taken in case of tort is placing the defender in the same position at which he was before the commitment of the tort. The plaintiff gave the evidence that she was not aware about the theft and she did not know why Cox turned off the lights and she also did not know that the car was stolen. The plaintiff succeeds in the case only because of trespass (Foley and Christensen, 2016). The occupier’s liability act, 1954 has imposed a duty of care upon the occupier of land. But here in this case, the visitor came to harm the defender so in such a case also the occupier is not allowed to use excessive force to save his or her property. The occupier has the following duties towards the trespasser: risks of which the occupier has reasonable grounds to believe that they exist and he has reasonable grounds to believe that the trespasser is in the vicinity of the risks. Once the plaintiff has proved that the defendant was in breach of his duty towards her as per the Occupiers' Liability Act, she must go on to prove the facts and the damage done to her (Roy and Marsoof, 2017).After analysing the argument that can a trespasser can sue the property owner if he or she gets injured in his property then as per the analysis, the trespasser has the right to sue the property owner for the breach of the duty of care. Law applicable to negligence
Civil Liability Act 2002 (WA)
Wrongs Act 1958 (Vic)
Australian Capital Territory
Civil Liability Act 2002 (ACT)
Civil Liability Act 2002 (SA)
Civil Liability Act 2002 (QLD)
Civil Liability Act 2002 (Tas)
New South Wales
Civil Liability Act 2002 (NSW)
Arguments Raised by Plaintiff and Defendant
This report is prepared in the favour of plaintiff and the court has given the judgement in favour of plaintiff because the plaintiff disclosed all the evidences which proved that this is the case of negligence. The case is related to negligence and tort. The defendant has injured the plaintiff unintentionally in this case. It was the case of tort not crime because the main objective in case of crime is punishment and in case of tort is compensation. This case is related to compensation so it is a tort. The plaintiff is demanding compensation from the defender for the loss done by him. After taking into account all the issues and arguments done by both the parties i.e. defender and plaintiff, the court has given the judgement in the favour of plaintiff. The plaintiff is having the evidence of her injury and some other evidences related to the case which proves that the defender breached the duty of care and the court said that the land owner is having the duty of care towards any person who has entered his land. According to the court, the landowner is also not required to use excessive force that can be harmful for others. At the end of the case, Shaw has to pay the compensation amount to the plaintiff and the compensation amount is equal to the amount of the loss done to the plaintiff. At the end, it is concluded that for any tort of negligence to visitors, the owner of the land should be liable for the injury done to the visitor. Even if the visitor entered the property without taking permission, the occupier owes duty of care towards him.
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Bartlett, F. (2017) Making lawyers pay for malpractice in court: skirting advocates’ immunity in Australia, International Journal of the Legal Profession, 24(2), pp.109-123.
Cane, P. (2017) Key Ideas in Tort Law. London: Bloomsbury Publishing.
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Foley, M. and Christensen, M. (2016) Negligence and the Duty of Care: A Case Study Discussion, Singapore Nursing Journal, 43(1).
Fulbrook, J. (2017) Outdoor activities, negligence and the law. UK: Routledge.
Goudkamp, J. and Plunkett, J. (2017) Vicarious liability in Australia: on the move, Oxford University Commonwealth Law Journal, pp.1-9.
Loughnan, A. (2017) ‘The Very Foundations of Any System of Criminal Justice’: Criminal Responsibility in the Australian Model Criminal Code, International Journal for Crime, Justice and Social Democracy, 6(3), pp.8-24.
Quill, E. and Friel, R. (2016) Damages and Compensation Culture: Comparative Perspectives. London: Bloomsbury Publishing.
Roy, A. and Marsoof, A. (2017) Negligent omissions as a basis for holding internet intermediaries liable for infringements of trade mark rights: approaches under the English common law,Intellectual Property Quarterly, 1, pp.52-77.
Ryan, D. (2017) FROM OPPORTUNITY TO OCCASION: VICARIOUS LIABILITY IN THE HIGH COURT OF AUSTRALIA, The Cambridge Law Journal, 76(1), pp.14-18.
Walmsley, S., Abadee, A., Zipser, B., and Sirtes, G. (2015) Professional Liability in Australia. Australia: Thomson Reuters.
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