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Question:

Discuss about the Tort of Negligence for Legal Issue.

 

Answer:

The Legal Issue in the Present Case

On the basis of the available data in the case of Brett and Annie it puts forward the fact that Brett was employed at the Tavern. Annie who used to like Brett, decided to have her birthday party at the Tavern. On the day of her birthday party, he was the manager on duty. On the particular day, he was informed by David, a ‘glassie’ of in the organization, that someone has been ill near the main door, where, according to David’s description ‘awful mess’ had occurred. Brett decided to check it, but where Candice whom he used to like, came to order to the bar, he forgot to check the problem near the main door. At the end of the night, with the motive to gain the attention of Brett when Annie turned to wave him goodbye, she slipped on the mess and got injured.

On the basis of the above discussed facts associated with case, Annie as the plaintiff can take legal actions against Brett [the defendant] under Tort of Negligence. In this context it is mentionable here that tort is considered as civil wrong, which do not arise due to breach of contract, wherein the legal remedy comes under common law action associated with damage[1]. The source of origin of the concept of tort is deliberate or intentional conduct of an individual as a result of which property or personal rights of another individual gets infringed. However, in the case of Brett, Annie can take legal actions under tort of negligence which deals with legal consequence of careless or unintentional conduct. The reason being it is the negligent conduct on the part of Brett which resulted in the occurrence of the injury experienced by Annie.

Under tort of negligence, the action which can be taken on the part of Annie includes claiming for compensation due to the damages experienced on her part which was due to the careless action of Brett[2]. In the particular case, the action required to be taken on the part of Annie under tort of negligence also includes referring to the concept of negligence which includes both the legal action taken and the defendant’s conduct which is claimed to cause the injury on the part of the plaintiff.  Hence, applying the concept of negligence in Brett’s case, it would refer to the legal action taken on the part Annie and the careless conduct on the part of Brett that resulted in the damage on the part of Annie.       

In cases of tort of negligence, burden of proof plays an integral role. To get in depth of the matter, following the presentation of the plaintiff’s case with the help of arguing the proof of the three elements associated with the cases of tort of negligence which includes duty of care, breaching of the duty of care and damage, the burden of proof passes on to the defendant for the purpose of proving and raising any defenses[3]. In this process contributory negligence and voluntary assumption of risk is essential. Thus on the basis of the above mentioned aspect, once Annie as the plaintiff has presented her case with the help of arguing her proof on the basis of duty of care, breached duty of care and damage, the burden of proof passes would pass on to Brett.

The standard of proof, i.e. the elements which are required to be established in tort of negligence cases for winning the conviction on the part of Annie are the individual causing injury i.e. Brett [defendant] owned duty of care to the plaintiff i.e. the injured person[4]. Annie is also required to establish that the beach of duty has been performed by the defendant, which is Brett in this case. It is also essential to establish in case of Brett that breach of duty on the part of defendant i.e. Brett resulted the injury to Annie, as a result of which Annie had to suffer from injuries.

In case of tort of negligence, the legal actions which required proof of three legal elements required to be established on the part of the plaintiff i.e. Annie includes duty of care, breached duty of care and damage.

 

Analysis of Application of Tort of Negligence and its Interpretation to the Facts of the Question

In the above made discussion the three elements requiring proof has already been established which includes duty of care, breached duty of care and damage. Duty of care is one of the major elements which have been dealt under Civil Liability Act 2003[5].  In this context it has been stated under Duty of Care that, not every incident of careless behavior will result to an action associated with negligence. It has been further stated under the aspect of duty of care that acts which are considered as morally incorrect are not always legal wrong. With the help of help of Donoghue v Stevenson [1932] AC 562 a distinction between the both the concepts has been made by Lord Atkin. Furthermore with the help of this case the concept of neighbor principle has also been established which further broadens the arena of functioning of duty of care which was previously restricted to the defendant who would have owed a duty of care from the defendant that is required to be legally recognized when the incident of careless act occurred. In such cases the duty of care made the defendant duty to avoid injury to the plain. However with the help of neighbor principle, it is the responsibility to care to avoid injure of the neighbor which is foreseen in nature[6]. If this concept is applied in this case, it can be noticed that the injury experienced on the part Annie was reasonable foreseen in nature on the part of Brett who was within reasonable foresight on the part of Brett who had a duty to take care of the visitors the negligence of which resulted in the loss on the part of Annie. 

In the aspect of Duty of care, test of reasonable foreseeability is essential wherein it is required to look into whether failure on the part of defendant to take reasonable care is associated with foreseen harm to the plaintiff[7]. In the case of Brett it is noticeable that, it was considerably predictable that failure to perform the duty or to be specific to deal with the mess at the main door would result to the injury on the part of the visitors like Annie. Hence, in this case the impact of breach of duty of care on the part of Brett due to which Annie had to face injury can be stated as reasonably foreseen in nature.

In the particular case establishing Breach of the Duty of Care is also another essential element which Annie as the plain is required to establish. To get in depth of the matter, under Civil Liability Act 2003 the aspect of breach of care has been dealt with. It has been stated under the aspect of breach of duty of care it has been stated that a defendant i.e. Brett will only be held responsible for the irresponsible conduct under Breach of Duty of Care if it fails in legally stated standard. The standard as stated in this case is objective in nature. The standard in this case refers to standard of a rational individual in the same situation. In this context Wyong Shire Council v Shirt (1980) 146 CLR 40, case is mentionable in which whether duty of care has been breached, the way in which it will be determined has been stated[8]. In the case it was stated that in order to establish breach of duty of care it is required to stated that any rational individual in the same situation foreseen that such a behavior would have resulted in the injury. In this context it is mentionable here that the careless act performed on the part of Brett and the impact faced on the part of Annie was foreseen in nature establishing the breach of duty of care on the part of Brett.

In case of Brett if test of breach of the duty is implemented it can be observed that it was foreseen risk, which was not insignificant in nature and ration person in such cases would have taken precaution further establishes the breach of duty of care on the part of Brett[9]. 

The final element which is required to be established on the part of Annie as the plaintiff is damage. In any case of tort of negligence establishment of damage is essential. It is essential on the part of plaintiff to establish a causal link between the damage and the negligence on the part of the defendant due to which the plaintiff suffered the loss[10]. It is also essential on the part of the plaintiff i.e. Annie to prove that the damage experienced on her part was not remote in nature. In this context if the case of Brett is referred it can be stated that it is clearly noticed that the injury experienced on the part of Annie has direct consequential link with the negligent act on the part Brett wherein he is seen to have completely forgot to deal with the issue of main door wherein it is not remote in nature. Hence, on the basis of this aspect it is also mentionable that it is due to the breach of duty on the part of Brett which lead, to injury of the fracture on Annie’s lower back that required surgery which reflects the occurrence of damage.

On the basis of the above discussed aspects on proving the discussed actions the legal remedies primarily available to the plaintiff i.e. Annie is award for the damages. To get in depth of the matter it can be noticed that Annie had experienced personal injuries which includes both pecuniary and non-pecuniary losses[11]. Pecuniary damage is calculable in monetary terms. Here it is mentionable here that Annie had to loss her part-time job at Safeway for a minimum period of six months and the lower back fracture required surgery. The combination of the above discussed aspects lead to pecuniary damage on the part of Annie. Due to the injury she had to suffer from pain and loss which can be considered as non-pecuniary losses. As a result of the non-pecuniary damages experienced on the part of Annie the remedy entitled to her under the law is medical and other expenses. Due to the financial loss she is entitled to other remedies like social security benefits. 

However, in the particular case, there are certain aspects on the basis of which the defendant i.e. Brett may raise defenses to Annie’s action that is required to be established on the balance of probabilities.  The defenses in this case are contributory negligence and voluntary assumption of risk. In the case of Brett contributory negligence is applicable. In this context it is mentionable here that contributory negligence refers to the failure by the plaintiff in taking reasonable care for the purpose of avoiding the injury[12]. The facts available in the particular case state that, other visitors were able to avoid the risk, wherein during the time of injury, Annie was intoxicated. Hence, under contributory negligence if Brett puts forward his defenses, then under Section 47 of Civil Liability Act 2003 if it is established in the court that during the particular incident the plaintiff was intoxicated as in case of Annie, it will result in presuming contributory negligence wherein the award of damages to the plaintiff will be reduced by 25% or more if the court thinks it to be apt.

Likelihood of the Proof of Action

Thus on the basis of the above made discussion of the case of Brett, it is observed that the three elements associated with tort of negligence i.e. damages, duty of care and breach of duty of care can be established on the part of Annie which entitles her to the remedies associated with it which is primarily monetary in nature. However, as she was intoxicated during the occurrence of the incident under contributory negligence, Brett can raise defenses to the actions of Annie the establishment of which would help in reducing the payable damages on his part. 

 

References 

"Standard Of Proof" In Most Personal Injury And Other Civil Cases (2010) tlgattorneys <https://www.tlgattorneys.com/news-resources/standard-of-proof-in-most-personal-injury-and-other-civil-cases/>

Breach Of Duty In Negligence Liability (2007) E-lawresources.co.uk <https://e-lawresources.co.uk/Breach-of-duty.php>

Civil Liability Act 2003 (2016) legislation.qld.gov.au <https://www.legislation.qld.gov.au/LEGISLTN/CURRENT/C/CivilLiabA03.pdf>

Connolly, Ursula, Tort (Round Hall / Thomson Reuters, 1st ed, 2009)

Corbett, Val, Tort (Thomson Round Hall, 1st ed, 2009)

Cornford, Tom, Towards A Public Law Of Tort (Ashgate, 1st ed, 2008)

Magnus, Ulrich and M Martin-Casals, Unification Of Tort Law (Kluwer Law International, 4th ed, 2007)

Oliphant, Ken, "I. Introduction: European Tort Law 2012" (2013) 2 European Tort Law Yearbook

Remedies For Negligence (2012) Kfknowledgebank.kaplan.co.uk <https://kfknowledgebank.kaplan.co.uk/KFKB/Wiki%20Pages/Remedy%20for%20negligence.aspx>

Shapo, Marshall S and Marshall S Shapo, Principles Of Tort Law (Thomson/West, 7th ed, 2008)

Tayfoor, Susan, Tort (Sweet & Maxwell, 1st ed, 1995)

Wyong Shire Council V Shirt [1980] HCA 12 (2007) peterogrady.com.au <https://peterogrady.com.au/1980/05/01/1980-wyong-shire-council-v-shirt/>

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