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Question:

Discuss about the Tort Law Australiya.
 
 

Answer:

Issue: The given case study will highlight the provisions of Tort of Negligence in Australia. To answer to the given case study one needs to understand the provisions of torts of negligence in Australia.

 Rule: As per Section 5 of the Civil Liability Act, 2002 when there is any negligence committed then a legal action can be taken by a person to whom the defendant owed a duty of care. Negligence liability would arise only when the duty of care was present and the duty got breached. In order for the plaintiff to be successful in the case of negligence, he needs to prove the three elements mentioned below:[1]

  1. Defendant needs to owe duty of care to the plaintiff. Defendant was negligent in providing a duty of care to the plaintiff. This has to be proved.
  2. Defendant breached the duty of care and he also failed to confirm the required standard of care.
  3. Due to such breach, plaintiff got hurt of some of his equipment got damaged which was not too remote.

If all the above mentioned three conditions are proved by the plaintiff then defendant would be liable to pay damage charges to him.

Application: The given case study is more or less similar to the provisions given mentioned above. The case study is about a lady named as Charlene who conducts yoga classes. She teaches yoga at the Melany School of Arts Building. The floor in the building was timber constructed and with a highly polished hardwood floor. Apart from a yoga instructor she was also a physical education teacher at a local high school. Yoga was her part time job, her primary job was as a physical education teacher at a local high school.[2] She used to teach yoga mainly on Tuesday’s and Thursdays. Skye was one of her students who used to come to her class to learn yoga. Skye was very tall and thin and was not even well coordinated. She came to learn yoga since she had the tendency to drop things and also walk into the walls. There was some problem with the floor of the building where Charlene used to teach yoga. She had observed that the hall’s floor was very slippery and there are chances that her students might get hurt. To avoid such kind of situation she had even bought several large rolls of vinyl flooring to use but it used to take a lot of time to use vinyl. Hence to solve this problem she had bought large number of cheap imported socks with rippled rubber soles.  She had given these socks to all her students and noticed that they don’t slip and hurt themselves. She used to give these socks to all the students before the class begins and used to take all the socks back after the class gets over.

On one Tuesday Charlene was forced to cancel her Tuesday’s class since she had some prior commitments with her school where she was a physical education teacher. Some of the students were even not happy with this and also demanded for refund. But Charlene had promised them that they can join her on Thursday night classes and she will not even take any extra money from them. Students agreed to the same but Skye was unaware about the situation. She came to the class on Thursday night and found the class to be very crowded. Generally there are only 25 students on Thursday night class but this time in total 45 students were there. Skye came to the class after she had consumed three classes of wine. Since the class was so crowded today, she was unable to occupy her usual position. Due to this she had to stand in a small place which was very close to the tea and towel table. [3]

The mistake which Skye did was that she forgot to wear the socks, because socks were orange and she thought that the color had clashed with her pink outfit. She was the only student who was not wearing socks and hence due to this reason she skidded into the leg of the table, toppling the urn and the steamer onto her body. The entire hot tea, appliances and towels severely scolded her skin.

Skye was hospitalised for two weeks and requires ongoing treatment.  She has no sick leave as she works casually as a retail shop attendant. She will not be able to work for eight weeks.  Charlene visited Skye in hospital and apologised to her profusely. Skye thinks that she will take some ‘time off’ work, head to Byron Bay when she feels better and look for work around Christmas. She hopes to get a good pay out in an action against Charlene.  She was planning to take action against Charlene. [4]

 


After understanding the provisions of the Section 5 and 6 of the Civil Liability Act, 2002 it can be concluded that the fault was from both sides. But in the given case Skye was at fault at a greater level. Fault committed by Skye are given below:

  • She came to the class after drinking three glasses of wine.
  • She didn’t wore the socks since the colour of the socks was orange which would not match the pink colour outfit she was wearing. [5]

For Skye to prove that Charlene was wrong she had to prove three elements of Law of Negligence.

  1. Charlene was responsible for taking care of her students. She knew that the floor was very slippery and so she had bought several large rolls for vinyl flooring. But this idea didn’t work out because it was taking a lot of time. Hence she decided to purchase socks with rippled rubber soles. By wearing these socks students were able to do yoga in a comfortable way. This clearly shows that Charlene had performed the duty of care. In this element Skye would not be able to prove that Charlene was wrong. Charlene had taken enough protection for their students not to fall. The same was in the case of Bolton v Stone (1951) AC 850 where the club was just given a warning that someone got injured. They could have either stop playing cricket in that place or they should increase the height of the fence. The sensible scenario would be to raise the height of the fence. Skye won’t be able to prove in this part that Charlene failed to perform the duty of care. [6]
  2. Charlene didn’t failed to perform or breach any of her duty. When she was unable to take any class on Tuesday night, she had informed to students that she would cover the class on Thursday night. But this information was not told to all the students, instead this information was only given to some students. Skye was totally unaware about this. Just because of this small reason one cannot say that Charlene had breached her duty. She had given socks to all the students to wear it, so Skye should also have worn it that day. Charlene didn’t breached any duty of care, same in the case with Paris v Stepney Borough Council (1951) AC 367. [7]
  3. Third element discusses about the damage which was caused by the defendant to the plaintiff. Law clearly states that the damage should not be too remote. But in this case damage to Skye was very high. She was hospitalized for almost two weeks and would also be not able to work for at least eight weeks. Charlene even went to the hospital and apologized to Skye. In this case Skye can easily prove that she got severely injured due to the incident. She could prove the damage but she won’t be able to prove that damage was caused to the negligence of Charlene. Skye was injured due to her her own fault. Clear instructions were given to every student to wear socks before the yoga session starts. But unfortunately Skye dint wore socks that day since the colour was not matching with her pink dress. This clearly proves that Skye got injured due to her own careless attitude. This was similar in the case of Wyong Shire Council v Shirt (1980) CLR 40. [8]

Conclusion: Hence after understand the provisions of Tort of Negligence and the given case study one can conclude that Charlene had performed her duty with her, It was Skye who was careless about her own attitude due to which she got severely injured. Even if Skye takes any legal action against Charlene, she will not be able to prove that Charlene was at fault. To prove that Charlene was at fault, she had to prove all the three elements of negligence, but she won’t be able to prove any of the elements.

Hence it would be better that Skye should not take any legal action against Charlene.

 

References

CIVIL LIABILITY ACT 2002 - SECT 5Definitions (2017) Austlii.edu.au https://www.austlii.edu.au/au/legis/nsw/consol_act/cla2002161/s5.html

Law Vision Pty Ltd, "The Law Of Torts" (2008) <https://www.lawvision.com.au/uploads

Negligence (2017) Lawhandbook.sa.gov.au https://www.lawhandbook.sa.gov.au/ch01s05.php

Negligence And The Duty Of Care | Hobart Community Legal Service (2017) Hobartlegal.org.au <https://www.hobartlegal.org.au/tasmanian-law-handbook/accidents-and-insurance/negligence/negligence-and-duty-care>

Stewart, Pamela and Anita Stuhmcke, Australian Principles Of Tort Law (The Federation Press, 1st ed, 2012)

 The Right To Sue In Tort | ALRC (2017) Alrc.gov.au https://www.alrc.gov.au/publications/right-sue-tort

TORT LAW, POLICY AND THE HIGH COURT OF AUSTRALIA (2017) https://law.unimelb.edu.au https://law.unimelb.edu.au/__data/assets/pdf_file/0003/1707816/31_2_10.pdf

Wyong Shire Council V Shirt; 1 May 1980 - Swarb.Co.Uk (2017) swarb.co.uk <https://swarb.co.uk/wyong-shire-council-v-shirt-1-may-1980/>

CIVIL LIABILITY ACT 2002 - SECT 5Definitions (2017) Austlii.edu.au <https://www.austlii.edu.au/au/legis/nsw/consol_act/cla2002161/s5.html>

Law Vision Pty Ltd, "The Law Of Torts" (2008) <https://www.lawvision.com.au/uploads>

The Right To Sue In Tort | ALRC (2017) Alrc.gov.au <https://www.alrc.gov.au/publications/right-sue-tort>

Negligence (2017) Lawhandbook.sa.gov.au <https://www.lawhandbook.sa.gov.au/ch01s05.php>

Stewart, Pamela and Anita Stuhmcke, Australian Principles Of Tort Law (The Federation Press, 1st ed, 2012)

TORT LAW, POLICY AND THE HIGH COURT OF AUSTRALIA (2017) https://law.unimelb.edu.au <https://law.unimelb.edu.au/__data/assets/pdf_file/0003/1707816/31_2_10.pdf>

Negligence And The Duty Of Care | Hobart Community Legal Service (2017) Hobartlegal.org.au <https://www.hobartlegal.org.au/tasmanian-law-handbook/accidents-and-insurance/negligence/negligence-and-duty-care>

Wyong Shire Council V Shirt; 1 May 1980 - Swarb.Co.Uk (2017) swarb.co.uk <https://swarb.co.uk/wyong-shire-council-v-shirt-1-may-1980/>

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