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Background

Question:

Discuss About The Plaintiff Liable Contributory Negligence?

Yvette Sonja Horne, the plaintiff was only 13 when she met with an accident and suffered severe injuries in the lower part of her body. It was 11 December 1998 when she fell off her bicycle on the road in front of the rear wheels of a semi-trailer that passed across her lower body. She was riding to the Cooper Tennis courts from her school Aspley State High school, when she met with the accident. The tennis court was situated at some distance from the school, which caused the plaintiff ride to the Tennis Court. In this case, the State of Queensland is the first defendant, the driver of the semi-trailer named Lyall Norman Boettcher was the second defendant and the owner of the semi-trailer, Finner Bryce transport Pty Ltd was the third defendant.

A legal proceeding has been initiated against the State of Queensland on the ground that it failed to management reasonable care towards the children who were under the responsibility of Aspley State High School, which can be depicted as negligent attitude on part of the State. The school also demonstrated a negligent behavior by permitting the children to ride to the Tennis Court from school as the school was aware that the road to the Tennis Court was dangerous for the children to ride bicycles owing to the heavy traffic on the road.

Whether there was a breach of duty of care on part of Aspley State High School

Is the plaintiff liable for contributory negligence?

Can the owner and driver of the semi-trailer be held liable for negligence?

The main contention of the plaintiff was that the driver of the semi-trailer or the second defendant is liable for negligence, as he did not halt the vehicle even after he noticed that the plaintiff and her friend was riding bicycle in front of his vehicle (Antieau 2016). The entire attached semi-trailer and the prime mover of the vehicle had safely passed across the plaintiff safely but the plaintiff fell of the cycle in front of the rear wheels of the vehicle.

The plaintiff further contended that the first defendant that is, Aspley State High School was negligent by failing to exercise reasonable care towards its pupils. The school owed a duty of care towards its pupils including the plaintiff as they were rising to the Tennis Court during the school hours with the permission of the school. This establishes that the school was responsible to ensure that the pupils reach to the Tennis court safely. Further, the school authorities were aware of the fact that some of the students might use bicycles to ride to the tennis court using the road, which poses potential danger for the children, especially, for ones of the plaintiff’s age.

Plaintiff's Contention

Furthermore, the plaintiff stated that her mother was assured that the school authority would take responsible for the students while they go to the tennis court. The school assured that the students would travel in groups under supervision and a teacher would accompany the students on their way to the court. On the unfortunate day, the first defendant permitted the students to ‘make their own way’ to the tennis court from school and did not accompany them under supervision of a teacher or other school authority to the Tennis Court. Connie Miles suggested the plaintiff to ride a bicycle to the Tennis Court.

The plaintiff also contended that while she was riding the bicycle down the hill, she noticed prime mover and an attached semi-trailer was overtaking them. At that point, of time, the plaintiff realized that the rake system in bicycle was not working and she collided with the bicycle, which her friend was riding. Both the children flung off their bicycle and the plaintiff came under the rear wheels of the semi-trailer. The plaintiff asserted that she also faced difficulty while controlling the bicycle just before the plaintiff collided with her friend.

The driver of the semi-trailer that is, the second defendant contended that the plaintiff had seen the semi-trailer when it was two-meters away from her bicycle. He had a glimpse in his rear mirror after he heard a slight noise and saw that the plaintiff was under the trailer. He halted the vehicle and assisted to the plaintiff and her friend that was necessary at that point of time. The driver further asserted that ‘the side wheels of the semi-trailer and the prime mover were very close to the white line in Beams road that kept out the traffic travelling towards Gympie road’.

The driver further contended that he saw two children riding bicycles in front of the vehicle and he noticed that the bicycle, which the plaintiff was riding, was unstable. Moreover, the plaintiff contended that the bicycle was big for the plaintiff and there was no indication on part of the plaintiff that she was about to swerve more than 1.7 meters to her right and the vehicle passed the plaintiff extending 2.4 meters from the centre line.

After the perusal of the contentions made by both the parties, the court based its judgments on the following reasons:

Firstly, the court relied on the recollection of the plaintiff and her friend with some reservation the owing to the fact that the incident had occurred nine years ago. While determining the liability of the first defendant with respect to negligence, the court considered the fact that the Aspley High School was responsible for ensuring that its students reach the Tennis court safely under the supervision of a teacher. When the plaintiff’s mother enquired auditing the travelling from school to the Tennis court, the plaintiff’s mother was assured that the children would travel in groups under supervision.

Court's Judgment

Thirdly, considering the contention of the defendant that the bicycle was too big for the plaintiff and it was unstable due to defaulted brake system in the cycle, the court relied on the evidence of the police under section 18 and 101 of the Evidence Act. The evidence was related to the facts about the incident that was obtained after interviewing the defendants, plaintiff and her friend.

Fourthly, while determining the liability of the second defendant, the driver, the court accepted the contention that Beams road posed danger for people riding bicycles. The court rejected the contention that the driver of the semi-trailer vehicle failed to exhibit reasonable care for preventing the incident that caused injuries to the plaintiff (Cusimano and Roberts 2016). The evidence that while the trailer passed, its side wheels were very close to the plaintiff supported this statement made by the court. The distance between the plaintiff and her friend and the prime mover was at a distance of 4.2 meter and the trailer being 8 ft wide, the court asserted that, the second and third defendant cannot be held liable for negligence (Brake 2014).

Fifthly, the fact that the first defendant (school) owed a duty towards the plaintiff being te student of the school, the court opined that the school is liable for violating it duty of care by allowing the plaintiff to travel from school to the court without supervision while she was under the authority of the school. Further, despite being aware that there is possibility that students would either ride bicycles or walk on the Beams road to reach the Tennis court, the school permitted the students to ‘make their own way’ to the tennis court.


Sixthly, the court considered that on the day of incident, the children travelled without the supervision, thus, breaching their duty of care. Although the first defendant asserted that walking would have been a safer means than riding, for mature people in the position of the plaintiff, but the court considered that the plaintiff as immature at her age and rode the big bicycle with a defaulted brake system under influence of her friend (Ogden and Hylton 2016).

The school was obligated to ensure that all its student reach the Tennis court safely and authorize a teacher to supervise them to the court instead of asking them to reach to the court on their own. The court supported its opinion by referring to Geyer v Downs & Anor [1976-77] 138 CLR 81 and Williams v Eady [1893] 10 TLR 41 at p.42 which requires every teacher to exercise duty of care towards the students like a father exercises care towards his boy.

Contributory Negligence

Lastly, to determine whether the plaintiff was liable for contributory negligence, the court held that it is reasonable for a 13-year girl who is used to riding bicycles to detect that the brake system was not working. The court opined that the accident resulted partly due to the collision of bicycle with her friend and partly due to lack of care of the plaintiff. The court referred to Lynch v Nurdin [1841] 1 QB 29 which explains that contributory negligence of a child refers to the failure of the child to exercise the care that is reasonably expected from any ordinary child of the same age. The court considered that despite being aware that the bicycle was bigger than the size of the plaintiff and the default in the brake system, the plaintiff continued riding which implies she lacked maturity and failed to exercise reasonable care for her own safety.

The court divided the responsibility between the plaintiff and the first defendant where the first defendant is entitled to 75% of responsibility for negligence and the plaintiff is entitled to 25% of the responsibility for contributory negligence. The plaintiff was awarded damages under the Griffiths and Kerkemeyer head of damage.

The judgment distributing negligence against the appellant was set aside and awarded the plaintiff with the cost of the appeal.

The court accepted the contention made by the driver of the semi-trailer (second defendant) that the bicycle was big for the plaintiff and appeared to be unstable. The court was satisfied that the plaintiff fell off the bicycle because of inexperience in riding bicycle or due to the defaulted brake system in the bicycle. The court rejected the contention that the second defendant should have halted the vehicle on the ground that the plaintiff did not give any indication that the second defendant should stop the vehicle. Furthermore, there were other vehicles behind the semi-trailer, it was not possible for the second defendant to halt the vehicle, and neither the vehicle anticipated that it posed danger to the plaintiff.  

The court applied the Lynch’s case, the court held that the plaintiff was aware of the fault in the brake system before reaching the place of the injury and concluded that the plaintiff acted immaturely and foolishly, hence, she was party accountable for the injuries sustained by her in the accident.

The appellant made an appeal stating that the trial judge erred in apportioning the responsibility of the accident between the plaintiff and the defendant (Spamann 2016). The appellant claimed that she was not liable for contributory negligence and claimed damages for the need of future care. The appellant court held that the trial judge failed to provide sufficient evidence with respect to the fact that the appellant became aware that the braes of her bicycle were not working or that they were not working before she started the ride or before she reached the place of injury.

The appellant contented that she was capable of exercising some control over the speed by using the front brake and the pedals of the bicycles. Further, the trial judge opined that the size of the bicycle is another cause for the accident but the appellate court disagreed with the trial judge stating that there is no sufficient evidence to establish the fact that the appellant had realized that the size of the bicycle hindered her efficient control over the cycle. Hence, the evidences adduced by the defendant do not establish that fact that the plaintiff was party accountable for the occurrence of the accident and the injuries sustained by her in the accident.

Reference List

Antieau, C.J., 2016. Procedural Requirements and Shared Liability. Antieau on Local Business Law, Second Edition, 

Barry, C., 2017. Statutory modifications of contributory negligence at common law. Precedent (Sydney, NSW), (140), p.12.

Brake, D.L., 2014. Tortifying Retaliation: Protected Activity at the Intersection of Fault, Duty, and Causation.

Chase, O.G. and Miller, H.G., 2016. Law of Negligence. New York Practice Guide: Negligence, 1.

Cusimano, G.S. and Roberts, M.L., 2016. Contributory Negligence and Assumption of Risk. Alabama Tort Law, 1.

Foley, M. and Christensen, M., 2016. Negligence and the Duty of Care: A Case Study Discussion. Singapore Nursing Journal, 43(1).

Geyer v Downs & Anor [1976-77] 138 CLR 81

Lynch v Nurdin [1841] 1 QB 29

Ogden, B.G. and Hylton, K.N., 2016. Incentives to Take Care Under Contributory and Comparative Fault.

Ryan, C.J., Callaghan, S. and Large, M., 2015. The importance of least restrictive care: the clinical implications of a recent High Court decision on negligence. Australasian psychology, 23(4), pp.415-417.

Spamann, H., 2016. Monetary Liability for Breach of the Duty of Care?. Journal of Legal Analysis, 8(2), pp.337-373

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