Torts and Constitutional Law Acts - Assignment Example

Ans 2: The provisions of the Civil Liability Act of New South Wales are reiterations of Common Law, however, the modifications and amendments have been made in the field of liabilities assessed for recreational activities, especially dangerous ones and also including risk waivers and warnings. According to Section 5K of the CLA, recreational activities have been widely defined so that they could include an almost limitless sphere of activities and Section 5L provides for an exclusion of liability if an inherent risk is perceived in a recreational activity, which actually happens and causes injury. Therefore in effect, a Plaintiff will have no recourse to damages if he/she engages in an activity in which the risk warning is apparent. Section 5M of the Act specifically eschews duty of care if a “risk warning” is given. Such a risk warning may be given orally or in writing before the activity is initiated. It is immaterial whether or not the person to whom the risk warning is given comprehends it fully or not. Therefore, this completely absolves those who offer dangerous recreational activities from any liability if minors or customers who do not fully comprehend the risks suffer injuries. Moreover, Section 5 N of the CLA also provides for liability waiver clauses in recreational service contracts as a result of which services that are provided with a reasonable degree of care and skill are excluded from liability for a breach of warranty provided with the service. The basic assumption is that minors are not legally eligible to enter into contracts therefore the express waivers and exclusion from liability that is provided is valid and holds good. But whether or not a minor may enter into contract has to be decided in the Courts. But from the provisions and modifications as mentioned above, liabilities have been limited, but whether this constitutes effective reform is a debatable issue. While “risk warnings” are an effective way to limit negligence liability, the fact remains that most of the modifications that have been achieved have been through restricting and cutting back on risks that are to be assumed, rather than introducing any significant reform measures. In essence, most of the original common law principles remain, whatever changes have been made are limited to introduction of various means to restrict and limit negligence liability. Ans 4: The case of Wilson v Horne concerns direct trespass that is unintentional. In this case, the defendant chose to pursue a path of negligent trespass which was geared towards establishing that there was no direct intent to trespass but rather that the trespass was unintentional and could therefore be construed as negligent trespass. This case set the precedent for this defense in trespass claims and thereby advanced the Law in favor of defendants who unintentionally became victims of trespass claims. This has paved the way for the slow death of the tort of trespass which is yielding to the tort of negligence. The case of Guimelli v Johnston concerns the only defense in a trespass action, which is consent. In the field of sports, the problem of establishing a defense rests on the fact that while compliance with the rules of a game may be said to be equivalent to consent, yet the problem arises in drawing the line where the limitations of consent are breached. This case is notable for the fact that it sets out the parameters for the establishment of a consent defense in a trespass suit. It was said in this case that when a defendant “intends to cause bodily harm or knows, or ught to know, that such harm is the likely result of his actions”, the defense does not apply. (King CJ at 68,709). Hence this may be said to forward the law, because it provides a more equitable basis for a Plaintiff to object to trespass. The case of March v MH Stramare is relevant to the issue of causation in negligence cases, or the issue of assessing what is likely to be. This case established a “common sense” test for causation and established that considerations of policy are also relevant while determining a negligence claim, as are value judgments.(Also see Chappel v Hart). The test does not question only what would have happened, rather it adopts the approach of questioning what would have happened to the Plaintiff but for the negligent conduct of the defendant, therefore effectively answering the question of whether or not the defendant’s negligent conduct is one that makes him/her liable for damage. There is an element of experience and the ability to make value judgments , which have to be coupled with policy considerations in arriving at a decision. This case also advances the cause of law by refraining from applying a hard and fast rule, but rather setting an objective common sense test and coupling it with value judgments to make an appropriate decision in each case. In the Deatons case, the issue was one of vicarious liability. In this instance, a barmaid threw a glass of beer into a customer’s face but the owner of the hotel was not held vicariously liable for her offense because it was deemed to be one of passion, unrelated to the owner or subject to his control. According to Dixon J, it was “an act of passion and resentment done neither in furtherance of the masters interests nor under his express or implied authority nor as an incident to or in consequence of anything the barmaid was employed to do.” (p 381-382). Therefore, this case definitely advances the cause of law because it establishes that when an employee seizes an opportunity to even out a personal score, the owner cannot be held liable for damages. Since she was not place din charge by the owner neither did she have any authority designated to her by the owner, but was merely settling a personal score, the owner was not vicariously liable. The case of Wynn v NSW establishes the case of continued liability of a defendant when an injury has been sustained by Plaintiff for which foreseeable additional damage potential exists in terms of susceptibility to future injuries (at 23). When an further injury results due to an earlier injury, then “damages would be assessed, as in this case, by allowing for any pre-condition resulting in or having the possibility of resulting in impaired earning capacity (Jobling v Associated Diaries and Baker v Willoughby). This case has resulted in the onus of tort injury being placed on the first defendant to cause an injury to Plaintiff while damages are reduced in the case of the second Defendant. Both 1st and 2nd defendants pay total damages for injury, while 2nd defendant pays a proportionately less amount in spite of the possibility of added injury arising in the foreseeable future. This case has been a drawback rather than advancing the law, because it creates almost unlimited potential for damages from the first defendant, so that if a second defendant knowingly hires a worker with a prior injury, he is likely to sustain less damages for accidents at the workplace. The case of McLean is an important one in terms of the admissibility of heresay evidence. One of the requirements for allowing heresay evidence is that the witness must be one who is making a representation based upon the occurrences claimed being “fresh in memory”. In the case of Commonwealth McLean, submission was made that “fresh in the memory” should not be allowed to exceed a spontaneous utterance, which would be a part of the res gestae, the spontaneity being the one way to assure that the memory was indeed “fresh” However this was rejected. The Court held that the opposing party had been unable to properly challenge the evidence and had therefore been prejudiced, hence this case set an important precedent in heresay evidence and its admissibility. The case of Medlin and the State Government Insurance established that a diminution in earning capacity would not necessarily entail recovery of economic damages. In order for a plaintiff to be eligible for recovery of damages for loss of earning capacity, he or she must establish definitively that a financial loss will indeed be produced. It is not sufficient for a plaintiff to state that earning capacity will be diminished. Even if earning capacity is diminished, this will not entitle the Plaintiff to recovery of financial losses which are not materially established. This is a progressive decision because it will help to curtail cases where unreasonable claims are made by Plaintiffs based upon foreseeable future earnings, which may be exaggerated for the benefit of the Plaintiff. Scott v Davies is a case where vicarious liability was restricted to the circumstances of direction and control. This case is significant in that it has to some extent overturned the precedents that exist in other cases of vicarious liability, such as Soblusky v Egan and Christmas v Nicol Brothers Pty Ltd. Qumran and Bennet established the principle that the owner is not responsible for the faults of an independent contractor. The Court concluded in Scott v Davies that the respondent did no wrong and “there is no principle upon which he can be made responsible for what the pilot did.” (at 21). This majority decision was reached on the basis that the rules of liability that apply in the case of motor vehicles cannot be applied for airplanes. Negligence requires a request by the owner or an interest of the owner in the injury causer driving the vehicle and has been a generally established precedent to make the owner responsible. This case has overturned that precedent to some extent and has extended the exclusion from vicarious liability into areas other than the actions of an independent contractor. This had advanced the law because it provides for the gamut of instances where the responsibility of the owner may not be clearly demarcated. Reference cases apart from the ones cited: Baker v Willoughby (1970) AC 476 Christmas v Nicol Brothers Pty Ltd (1941) 41 SR (NSW) 317. Chappel v Hart (1998) 195 CLR 232 at [26], Commonwealth v McLean (1996) 41 NSWLR 389. Jobling v Associated Diaries Ltd (1982) AC 794 Qumran and Bennet Soblusky v Egan (1960) 103 CLR 215 Scott v Davies (2000) 204 CLR 333 [Online] Available at: http://www.austlii.edu.au/au/cases/cth/HCA/2000/52.html#fn2 Wynn v. NSW Insurance Ministerial Corp (1995) 184 CLR 485 Medlin v State Govt Insurance Commission (1995) 182 CLR 1 [Online[ Available at: http://www.austlii.edu.au/au/cases/cth/high%5fct/182clr1.html New South Wales, Civil Liability Act Read More