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Duty

Discuss about the Statutory Interpretation and Tort Law.

In the present case, it has to be seen if Anna can bring a successful election in negligence against Trevor. Anna had injured her knee when she went on a walking tour that was organized by Honey Bee Nature Appreciation Tours (HB). The tour was supposed to last only six hours and during daylight. However on this particular day, they became late and returned after sunset. Although it is required that the walkers should be appropriately dressed and wear proper shoes but while returning, Anna decided to wear her high heel shoes. Trevor failed to notice that Anna had changed into high heel shoes because at that time he was busy in observing a rare Marbled Fragmouth. If similarly, when they were taking a break, Trevor decided to leave the walkers and went to scout for new location. During this time, Anna consumed half a bottle of wine that she had brought with herself as it was her birthday. Under these circumstances, Anna's heel caught on a tree root and she fell down, injuring her knee. She had to stay in the hospital for a month. Later on, Anna decides to sue Trevor in negligence and claim the lost income for 12 months and punitive damages from Trevor. Therefore, in the present assignment, it has to be seen if Anna can successfully sue Trevor under negligence and at the same time, it also needs to be seen if the defense under contributory negligence is available to Trevor.

In order to deal with this issue, first of all it needs to be seen what negligence is. In this context, in cases where one person has a duty of care towards the other, negligence can be described as doing or the failure to do something that would have been done by any other reasonable person and due to which any damage/injury/loss has been caused to the other person due to such an act (Deakin, Johnston and Markesinis, 2003). In Australia, the provisions of Civil Liability Act are used to decide the negligence of the persons and also the liability faced by them due to the negligence acts that have been committed by them (Hepple, 1997). In case a person decides to sue the other person in negligence, the person seeks financial compensation for the damage suffered by it. Such a person needs to be placed in the same position in which the person would have been if the negligence of the other person would not have taken place.

Breach of Duty

DUTY: In order to decide if negligence has taken place, there are four questions that need to be satisfied. Hence, it has to be seen if the defendant had a duty of care towards the plaintiff, if the duty of care has been breached by the defendant, if any injury or loss has been suffered by the plaintiff and if the injury or damage suffered by the plaintiff was the result of such a breach (Donoghue v Stevenson, 1932). For bringing a successful claim in negligence, it is necessary that all the above-mentioned factors should be satisfied. In case even if one factor is not satisfied, then it cannot be said that the plaintiff has suffered damage as a result of the negligence of the defendant (Grant v Australian Knitting Mills, 1933).

The duty of care can be described as the legal obligation which requires that persons should avoid causing harm. Such a duty arises when the harm caused to the other person was "reasonably foreseeable" if care was not exercised (Stapleton, 2003). In this context, the law requires that they should be a sufficient close relationship present between the parties so that it can be said that one party had a duty of care towards the other (Wyong Shire Council v Short, 1980). An example of such a situation can be given in the form of the relationship that exists between a doctor and the patient or the relationship that is present between the driver of a vehicle and the other road users. According to the Civil Liability Act, some conditions have been imposed on the duty of care, for example donors and good Samaritans. In this way, the people who decide to act in a situation of emergency, without expecting any payment or the persons who are providing food for the charitable purpose are generally assumed to be exempt from civil liability, provided they have not acted negligently (Kujinga, 2009).

The next issue is to decide when the breach of duty of care takes place. For the purpose of establishing if there has been a breach of duty of care, first of all the court will look at the standard of care that needs to be applied in the particular circumstances of the case. In such a situation, the standard of care needs to be decided by considering what would have been done by some other reasonable person under the same circumstances or if the actions of the party but below the standard that can be expected in such a case, it can be said that the party has breached the their duty of care imposed on it under the circumstances (Shaddock Associates v Parramatta City Council, 1981). Some of the common examples of the imposition of duty of care are the routine activities like driving. Hence it is expected that all the road users and should behave in a reasonable manner.

Injury


Therefore while dealing with the issue if the defendant had breached and the duty of care imposed on it, the court will see if the defendant had failed to do what would have been done by some other reasonable person under similar circumstances (Tomasic, Bottomley and McQueen, 2002). The key test related negligence is the probability and the likely seriousness of the harm that may be caused by as well as the burden of taking the precautions and the social value aspects of taking the precautions against such a risk. In Wyong Shire Council v Short (1980), the court stated that while deciding if there has been a breach of the duty, the court will consider the probability of, as well as the likely seriousness of the harm and the fact how difficult it would have been to take precautions against it and the conflicting responsibilities related to taking such precautions (Stapleton, 1991).

It also needs to be seen if the above-mentioned breach of duty has resulted in an injury. Sometimes it is obvious that the breach has resulted in an injury (Overseas Tankship (UK) Ltd v Morts Dock Engineering Co Ltd., 1961). For example when a person has slipped on the wet floor and broken his leg, a clear connection exists between the injury suffered by the person and the wet floor. On the other hand, sometimes it is a complex task to find the cause of the injury. There can be more than one event that may have resulted in the injury. For instance a person has slipped on the wet floor but on the same morning, the person has also fallen from a bicycle, a question may arise if the injury was caused by one event or both the events and to what extent.


The two main differences that are available in the case of negligence are contributory negligence and the fact that the risk was voluntarily assumed by the plaintiff. In this regard, contributory negligence takes place when it can be said that the plaintiff had failed in making the required standard of care under the circumstances for ensuring their own protection (Barker, 1993). And it was a contributory cause, along with the conduct of the defendant, behind the injury suffered by the plaintiff. In this way, contributory negligence can be described as the failure of the plaintiff to avoid the harm that has been suffered by it as a result of the conduct of the defendant. For example if a pedestrian had suddenly decided to cross the street without looking and such person is hit by a speeding car. The law provides that when contributory negligence exists, the responsibility for the injuries suffered by the plaintiff has to be apportioned among the defendant and the plaintiff, in accordance with their respective degree of their responsibility. The Civil Liability Act also provides that now it is available to the court to reduce the damages awarded to the plaintiff even by 100%.

Contributory Negligence

The main remedy that is available in case of negligence is damages. Damages put a monetary value on the harm suffered by the plaintiff, in accordance with the principle that the plaintiff should be placed in the same position if the negligence of the defendant would not have taken place (Gardiner and McGlone, 1998). Therefore, for most purposes, the level of culpability regarding the breach of duty is not relevant. Once it has been established that there is a breach of duty, it only needs to be seen how to compensate the victim. Generally the types of damages awarded by the court are as follows. Special damages, general damages and punitive damages. The examples of special damages include lost wages, damage to property or medical bills. The general damages are the damages that cannot be quantified in monetary terms (McDonald, 2005). The examples of general damages are the amount paid for the pain and suffering experienced by the plaintiff in a car accident. The purpose behind awarding punitive damages is to punish the defendant, instead of compensating the plaintiff in cases involving negligence. Mostly, punitive damages can be recovered in an action for negligence only if the plaintiff is successful in establishing that the conduct of the defendant was something more than ordinary negligence.

Conclusion:

On the basis of the above-mentioned principles related with negligence, it can be said that in this case, Anna can bring a successful election in negligence against Trevor. The reason is that Trevor had failed to ensure the safety of the walkers. For example he left the walkers unattended when they were taking a break and he had gone to scout for a new location. Similarly he lost track of time and spend too much time over there. The result was that the walkers had to walk back in the dark. Similarly he also failed to stop Anna from consuming the bottle of wine that she had brought with herself. Moreover he did not saw that when they were returning back, Anna changed into her high heel shoes. In this way it is clear that Trevor was negligent and the injuries suffered by Anna was the result of the negligence of Trevor. But in this context it is also worth mentioning that Anna had also contributed in this negligence. It was negligence on the part of Anna when she decided to consume half a bottle of wine during the walk. Moreover, Trevor had told the walkers that they should be appropriate clothes and shoes but while returning, Anna decided to wear her high heeled shoes.

Moreover, as Anna had recovered completely within a month, she cannot claim the lost income for 12 months.

References

Barker, K., (1993) ‘Unreliable Assumptions in the Modern Law of Negligence’ 109 Law Quarterly Review 461, 483

Benjamin K (2009). "Reasonable Care And Skill — The Modern Scope Of The Auditor's Duty". GAA Accounting

Deakin, S., Johnston A and Markesinis B (2003) Markesinis and Deakin's Tort Law, Oxford University Press   

Gardiner D and McGlone, F., (1998) Outline of Torts (2nd ed,), Butterworths

Hepple, B, (1997) ‘Negligence: The Search for Coherence’, 50 Current Legal Problems 69

McDonald, B (2005). "Legislative Intervention in the Law of Negligence: The Common Law, Statutory Interpretation and Tort Reform in Australia". Sydney Law Review. 27 (3)

Stapleton, J., (1991) ‘Duty of Care and Economic Loss: A Wider Agenda’, 107 Law Quarterly Review 249

Stapleton, J., (2003) ‘The Golden Thread at the Heart of Tort Law: Protection of the Vulnerable’ 24 Australian Bar Review 135

Tomasic, R. Bottomley, S, and McQueen, (2002) “Audits and Auditors”, Corporations Law in Australia, Federation Press

Donoghue v Stevenson [1932] AC 562

Grant v Australian Knitting Mills (1933) 50 CLR 387

Overseas Tankship (UK) Ltd v Morts Dock Engineering Co Ltd [1961] AC 388 (Wagon Mound No 1 Case (1961))

Shaddock Associates v Parramatta City Council (1981) 150 CLR 225

Wyong Shire Council v Short (1980) 146 CLR 40

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