Tort and Civil Liability Act 2002 - Coursework Example

Torts Law Question Introduction Tort means a wrong or an injury. Tortious liability arises from the breach of a duty fixed by law towards persons generally and that breach is redressed by an action for un liquidated damages. The law relating to tort is concerned with the situations where the conduct of one party causes or threatens harm to the interest of other party. The business of law relating to tort is to determine when the law will and will not grant redress for the damage suffered and the particular rules by which these redressal is granted The tortious liability in New South Wales is dealt with the legislation brought in 2002. The Civil Liability Act 2002 effective from March 2002 determines the liabilities of the persons who cause injuries to others and the compensation to be paid to the injured (Civil Liability Act 2002 Section 2). The Civil Liability arises when a person is doing harm of any kind to others which include personal injury or death, damage to property and economic loss (CLA Section 5). The liability comes in when the Act by which the injury of damage is caused due to the negligence of the person who did the harm. Negligence is the breach of a legal duty to take care which results in damage. It is the failure to exercise reasonable care and skill. The person is liable in negligence if he is under a duty to take care. The important character feature of tort is that it is redressive in an action for damages at the instance of the person injured. Tort and Civil Liability Act- 2002 The liabilities and right of the persons in the referred question are to be examined in the above background. Here, Bill decides to sell his collection through a garage sale and he arranges the collections in and outside his house. The sale items are displayed in his property. When he decides to sell his collections through a garage sale he has to arrange the merchandise in a way that is easy for the buyers to have a look and select the items without much strain. Bill is inviting the buyers to his house or his property to select and buy the merchandise. It is not necessary that there should be a proper invitation to each individual. His action is equal to giving a general invitation to anybody who is interested to buy the materials. The sale takes place in his property. Here he has a duty to display the materials in a way which enables the buyers to select and buy the goods without causing any harm. It is his duty to arrange the things properly to attract the buyers. He has a primary duty to see that the buyers after entering his property leave without any injury or damage. He has a duty of care [Wyong Shire Council Vs Shirt- 146 CLR-40 at 47-48] Mavis, the purchaser enters Bill’s property with intention to select and buy the material. It is her right that so far the sale goes on she can enter the property and select and buy the goods. She has the right to move freely through the property where the goods are displayed. When she enters the property she believes that she can do the selection after having detailed examination of each item and nothing is prevented her from doing so. She expects a free walk in front of each item taking into account the quality of and utility in the merchandise. It is only quite natural that since her entrance Bill’s property, her attention is mainly on the displayed goods. She does not expect uneven concrete path while the selection is going on. Bill, who displayed the items for sale has a duty to arrange it on a place for the buyers can freely move. He has the knowledge that the concrete path in his property has become uneven over the years and he has to foresee its menace that there is possibility of falling down when people who are not familiar with the property walk on it looking on the displayed items. As a seller it is his duty to arrange the sale on a place where no harm is posed to the prospective buyers. Before displaying the items Bill had to set right the concrete path or he had to avoid that particular area from the display. There was no obvious risk and so Mavis could not notice it [ Waterways Authority & Anor v Mathews (2003) NSWCA 330 ] Here the question is whether Bill had the knowledge of the fact that the concrete path was lying uneven. It is to be presumed that Bill had the knowledge the unevenness of the concrete path as it is his property. It is not a recreational service to exclude the liability in negligence [Mc Cracken Vs Melbourne Storm Rugby Football Club and others[2005]. The decision in Angel Vs Hawkesbery City Council (2008) NSWCA 130 is apt in the present case. In that case the Plaintiff, a 65 year old woman, while walking through the foot path caught on the leading edge of a displaced concrete slab which was displaced due to the root of a tree, tripped and fell down. She went to the City Council and informed the matter. The Council informed the plaintiff that it had marked the place for repairs. The plaintiff filed a complaint before the District Court and gave evidence that the Council had earlier knowledge of the displacement of the slab and not providing a barricade at that place was negligence on the part of the Council. The Defendant argued before the Court that as per Section 45 of the CLA 2002, the Council is not liable as it had no knowledge in the displacement of the slab on the foot path. The District Court decided the case in favor of the Council. In the appeal the Court decided in favor of the Plaintiff and opined that ‘it is true that a pedestrian is required to make reasonable care for his or her own safety. But that does not require that a person must walk along a foot path with their eyes continuously glued to the area immediately in front of them’. The Plaintiff’s appeal was allowed. In the present case Bill is not eligible to get exception as per section 5 b and c of CLA 2002. Because of the injury caused to her while she was doing the purchase in the property of Bill, she lost her earning capacity and is constrained to take treatment for a decade. She lost her ability to distinguish smell and thus lost the pleasure of life to a substantial extent and had to resign consequently from the honorary treasurer of the wine society. She did not notice an obvious risk [Great LakesShire Council - v - Dederer & Anor ] More over she deserves to be compensated for the non economic injury. She deserves to be compensated as per section 12 to 15 of the CLA Act. Her impairment due to the injury is more than 15% and she is eligible to get the compensation (CLA section 26).her impairment is to be assessed as per part 7 chapter 7 of the Workers Compensation Act 1998. Section 322 of Workers Compensation Act says as to how the permanent impairment is to be assessed. As per section 330 of the WC Act She is eligible to get: -cost of medical assessment including the charge foe medical specialist -wages lost for the medical examination -to and fro travel expense for undergoing medical examination including the cost of escort. -cost of private motor vehicle if any used for the medical examination. Mavis will get damages for the past economic loss of her earnings or deprivation or earning capacity, future economic loss or earning capacity and for the loss of expectation of formal support. Bill has done a breach of duty for which he is liable to compensate to Mavis. There is negligence as defined in section 5 b, c and d of CLA on the part Bill. [The claimant has to establish that there is negligence on the part of the defendant [ Romeo v Conservation Commission of the Northern Territory,[] The wrong doer is liable to ‘Restitutio in integrum’ of the victim. The injured person is to be compensated with money so that the injured is put in the original position as far as possible. The second purchaser, Doreen entered the house of Bill where valuable articles like Jewelry are displayed. She was a bona fide purchaser. She entered the house on the general invitation of Bill. Anybody who intends to purchase the articles can enter there. Doreen was selecting the jewelry and at that time a ceiling tile fell on her head and after undergoing physical agony for a few hours she died. Here the question is whether Doreen has any right under Tort Law and who is liable for that. Another point to be considered is whether Bill has got any right against Doreen or he has committed any breach of duty of care and liable for negligence. Bill has the right to conduct a garage sale of the chosen goods. He has the right to display it at the places where he wishes. The relevant point is whether he is legally bound to do some duties connected with it and whether there is any negligence on the part of Bill. It is to be made clear that Bill has a duty to take care of the circumstances in the sale place that the buyers should not be put to any situation which harm their interest. Bill is well aware that when a sale is arranged many persons would visit his house for purchasing the materials. Till the purchase is over the buyers have a right to complete the purchase without any harm to them. As a buyer Doreen did not foresee any incident like what had happened to her. In Harriton (by her tutor Harriton)v Stephens [(2006) 80 ALJR 791], the High Court of Australia, noted that the legislation has made significant alterations to the principles of reasonable foreseeability and causation. But Bill knows that the ceiling tiling done in his house was of a poor quality. It is true that Bill could not foresee an incident like this. But there is negligence on his part in doing the ceiling tiling. He should not have opted for a poor quality work. Quick and cheap tiling was the cause of falling of the ceiling tile. Bill cannot escape from his responsibility in arranging a cheap work and a sale in that house where he expects several buyers. If he had done a quality ceiling work in his house this incident would not have been happened. Bill cannot place the responsibility on his friend Sonny who did the quick and cheap work. The CLA section 5 b says that a person can be absolved from his liability only when could not foresee the work, the risk was not insignificance and the person is not taking a reasonable precaution as a prudent and reasonable person would do. [Wyong Shire Council v Shirt (1980) 146 CLR 40:] Here the falling of ceiling tile could not be foreseen. But it could have been anticipated any time because of the poor quality of the work done.[ Waverley Municipal Council v Swain] Ceiling tiling is very important which needs a high quality performance and adequate time to set in. Having not the work arranged perfectly there is negligence on his part. Bill cannot be absolved on the ground that the harm was insignificant. It was serious. The buyer Doreen could not have taken any precaution against the falling of the ceiling tile. She did not expect such harm from a sale place. If there was an obvious risk she could have taken adequate precautions [Mulligan v Coffs Harbour City Council & Ors NSW Supreme Court 14 March 2003] Bill, being the oocuupier of the premises has a common duty of care to ensure that any one who comes on to those premises is not injured.[AC Billings & Sons Ltd Vs Rodem [1958] [Hackshaw Vs Shaw [1984] Bill is liable for his negligence. He has failed to do his duties. Bill may be able to sue his friend Sonny for convincing the quality of the ‘quick and cheap’ tiling as good. But Bill is liable to compensate the harm done to Doreen. Harm as per section 5 of the CLA is defined as the personal injury or death, damage to property or economic loss. Doreen died but the tortuous liability does not end there. Doreen’s legal heirs are entitled to get compensation for her death. Her husband Henry and her children Zowie and Albert can put the claim for compensation [Section3 of Compensation to Relatives Act 1897]. Henry is to file the claim for the minor children also. She was extending services of a domestic nature to her husband and children (Section 15 CLA). The children lost their mother. Henry’s second wife’s caring of the children will not compensate the loss sustained them. A detailed account has to be filed. The Defendant will pay the amount to the court. No amount out of Court will be paid to the claimant. If Henry is not making any claim, any one for and on behalf of the children can make a claim. The action will survive even after the death of the wrong doer, Bill. The point to remember is that the Plaintiff has to establish that there was negligence on the part of the Defendant [Gharibian v. Propix Pty Limited NSW Court of Appeal [2007] NSWCA 151 In calculating the compensation and interest, the decision in Griffiths v Kerkemeyer is always a torch. The next problem which comes under tortious liability is the production and supply of eggs on organic produce. Here, Ethel, the local supplier of eggs has made a representation to Bill that the eggs supplied by her are organic produce. Bill became a customer of fer solely on the representation made by her that she supplies organic produce. She makes such a representation because she feeds her chicken the feed produced by ‘healthy’ seeds. She found in January 2008 that the healthy chicken feed contains genetically modified materials and the eggs she supplied were not organic produce. Here the tortuous liability is for deceit. The plaintiff has made a misleading statement for which he is liable [Henville v Walker,2] Ethel is liable to pay compensation claimed by Bill as he is deceived. Bill has a right to sue Ethel for having deceived him through the supply of inorganic produce. She may argue that she believed the representation of healthy seeds who supplied the organic feed. She relied the statement of the Defendant and there was a specia relation ship between the Plaintiff and Defendant [Esanda Finance Corp Ltd v. Peat Marwick Hungerfords (Reg) (1997). The law is also against her claim because she resides within 20 kilometers from the feed supplier within which distance she cannot put such a claim. When the misrepresentation was revealed, instead of setting right the problem by suing the feed suppliers, she settled with them and decides not to sue them. By her action she also involves in the deceit and she decides to continue the supply of eggs said to be organic produce. Here Bill has a right to sue Ethel and healthy seed for colluding and deceiving him and others. Because healthy seed has not made any representation directly to Bill, the liability of healthy seed is in association with Ethel. Ethel and healthy seed had a duty to ensure that the feed given to the chicken is free from any genetically modified material. There is negligence on the part of Ethel and healthy chicken feed. Xavier being the receiver of healthy chicken feed is also deceived by them. The misrepresentation by healthy chicken feed has adversely affected his egg business. The credibility he earned during the by gone years has tarnished by the act of healthy chicken feed. He can directly bring an action against healthy chicken feed as he receives chicken feed directly from them. Healthy chicken feed fraudulently made the representation that they had the knowledge that their feed does not contain genetically modified material. Healthy chicken feed made such a representation with an intention that the buyers of chicken feed should act on their claim. The farmers who reside within 20 kilometers of healthy seed are in the same position. The feed firm cannot claim that their feed is genetically modified material. They made such claim intentionally. They are liable to pay compensation to those put claims against them. Conclusion The civil liability act 2002 has become an important legislation of New South Wales as it clearly defines the rights and liabilities of the wrong doer and the injured. The vital point is that liability arises only when the wrong doer had prior knowledge about the negligence. Reference 1. Angel Vs Hawkesbury City Council [2008] NSWCA-130 2. Civil Liability Act 2002 sec.5 3. Great LakesShire Council - v - Dederer & Anor 4. Harriton v Stephens [(2006) 80 ALJR 791 5. Mulligan v Coffs Harbour City Council & Ors NSW Supreme Court 14 March 2003] 6. Mc Cracken Vs Melbourne Storm Rugby Football Club and others[2005]. 7. [ Romeo v Conservation Commission of the Northern Territory,[] 8. Wyong Shire Council Vs Shirt- 146 CLR-40 at 47-48] 9. Waterways Authority & Anor v Mathews (2003) NSWCA 330 ] 10.Waverley Municipal Council v Swain [2003] NSWCA 61] 11. Wyong Shire Council v Shirt (1980) 146 CLR 40: 12. Workers Compensation Act 1998. 13. Compensation to Relatives Act 1897 14. AC Billings & Sons Ltd Vs Rodem [1958] 15.[Hackshaw Vs Shaw [1984] 16 .The Occupiers Act 1957 17. Esanda Finance Corp Ltd v. Peat Marwick Hungerfords (Reg)1997 18.Gharibian v. Propix Pty Limited NSW Court of Appeal [2007] NSWCA 151 19. Griffiths v Kerkemeyer. Read More