THL Western Australia - Civil Liability Act - Case Study Example

Running Head: TOURISM LAW Name: Institution: Date: THL Western Australia - Civil Liability Act Executive Summary Frank’s injuries to his head leading to paralysis and Matt’s Death would not have occurred if the council of Tortoiseshell Island had put up signs along the beaches and in the parking lots of the Island to warn visitors of the dangers that lurked in the waters of the Island namely: Sand bars and sharks. Then council was under rule of care as outlined under Division 2 of part 1A of the “Civil Liability Act” of western Australia to blame for not taking the necessary precautions and for being negligent in their assessment of the both situations by not ensuring that there was no presence of sandbars and Sharks within the radius of the flags that they placed and if that was the case for not patrolling the areas between the flags to keep the already assessed condition under review considering that sandbars are known to shift positions and sharks being mammals are known to rummage the sea from one position to another. The issue is whether both Frank and The issue is whether the safeguards had been negligent in placing the flags where they did and maintaining them there for most part of the day considering that sandbars and Sharks are known to shift positions with the shifting of sea waves and whether the council of The Council was also under legal duty to administer and be in charge of the premise and ensure that the 500 or so people that visit the Island are safe. The Council had therefore been negligent in its failure to warn that it was dangerous to dive in the surf due to the presence of sandbanks and Sharks. The council was also ‘negligent to the extent that it failed to put up relevant signs to warn the public of such dangers. Introduction Frank was body surfing within the radius of the flags that the council had erected in the sea to indicate the safe areas for swimming catching several waves in the process but in the last waves was dumped into a sand bar and suffered a fractured cervical vertebra. The council was liable for; Frank’s injuries which fall under “the tort of negligence (a breach of legal duty to take care)”which was first set up under Lord Atkins “Neighbor” test in Donoghue v Stevenson.1 On the same day after Frank’s accident, Matt was taken by a shark and his body was never recovered. Both Frank and Matt (Matt’s relations since Matt is already dead) have to prove the following; (1) That the Councils owes them a duty of care under Division 2 of Part 1A of the “Civil Liability Act” of western Australia2 (2) That the council did not put into consideration the standard of care as required by the law under “the standard of care” (3) They have to prove that there was material damage had been done to both Frank and Matt who are the plaintiffs by the Council which is the defendant. Tort of negligence The Tort of Negligence has often been accused of being a creation of realists and legal perception and that the sole principle of the “tort” is to transfer or dispense the losses. That may be true when it comes to matters of property and insurance. However the tort in the case of “liability for indirect injury” places liability on the other person under the duty of care which a reasonable person would exercise under the circumstances that have been outlined above. The tort of negligence entails harm that happens as a result of carelessness and not necessarily harm caused intentionally3 Cases Donoghue v Stevenson (1932) Mrs. Donoghue visited a café with a friend and after consuming ginger beer contained in an opaque bottle served with ice cream only to pour the last contents of the bottle onto her glass and she discovered a decomposed snail in the ginger beer which caused her personal injury and she went ahead to sue the ginger beer manufacturer. Her claim was successful4 Lord Aitken: According to the ruling made by the House of Lords, Mrs. Donoghue’s claim was legitimate and the case instituted the law of negligence which is in work today in the legal circles. It also brought about the “good neighbor test”. According to Lord Aitken, we are indebted to love our neighbors and must not injure them in any way. We should also take rational care and should shun any taking actions or oversights that could cause injury to our neighbors. This way we will be good neighbors. A neighbor is herein described as any person that is close to us at any given time and who would be affected directly or indirectly by any actions that we take5 Duty of Care This refers to the events and associations which are recognized under the law as acts of legal duty in relation to “duty of care”. Failing to take such care may give rise to a situation whereby the defendant becomes to paying debts related to any injuries that results from such a failure or a breach of “duty of care”. Frank and Matt have the responsibility to establish that the council was liable to their “duty of care”. The existence of a “duty of care” is always dependent on the kind of loss as well as other differentiated legal factors that apply to various kind of losses. The case of Frank and Matt are also in consideration of personal injury, loss of independence and loss of life. Other factors include “pain and suffering, loss of amenities of life, loss of enjoyment of life and curtailment of expectation of life6. Guy Swain v Bondi Beach7 Guy Swain went for a swim at Bondi Beach on the afternoon of November 7. The year was 1997. The weather was by and large fine. It was a little cloudy but the waves were light. Safeguard employed by the Waverley council were at the beach that afternoon and had assessed the conditions and placed flags to indicate the safe area for swimming on the beach opposite a sand bar. They also kept the condition under review as the day progressed. They never at any particular moment adjusted the position of the flags. At about 15 meters from the shore, Mr. Swain who was swimming within the expanse of the flags tried to dive through a wave, a widespread practice and struck the face of a sand bar which was concealed out of his sight and experienced severe spinal injuries. Mr. Swain sued the council of Waverley for negligence and his case was heard before a four person jury for about six days after which the jury resolved that the defendant was liable for the injuries sustained by Mr. Swain and rewarded him handsomely. However, it reduced his compensation by 25% for contributory negligence on his part. The main question which echoed throughout the case was whether Mr. Swain had been swimming between the flags or outside of them. The council was found liable for negligence under duty of care in placing and maintaining the flags where they had placed them throughout the day.8The concepts that emerged were: “obviousness, the effect of obviousness of risk of harm on the need to warn and the concept of obviousness in relation to dangerous recreational activities”9. Conclusion – Duty of Care Under Part 1A Division 2 of the “Civil Liability Act 2002” Western Australia legislation, there are definite general as well as other principles which relate to liability and negligence that results from a failure to take precaution against a risk of harm. Under section 5B, a person (Defendant) is not liable for harm unless he/she was aware of the risk, the risk was not was not immaterial and as in the circumstances of Franks and Matt, a sensible person was capable of taking precaution. Section 5c however sets out conditions which a court is to consider in determining whether a sensible person would have been able to take precaution against the risk10. Frank and Matt are entitled to legally claim damages against the council under the negligence act because the Council obviously failed to adequately warn against sandbars and sharks and the likely hood such dangers lurking in the vicinity of the beach and more so of the fact that the council maintained the flags at the same spot for the better part of the day hence owing a duty of care to Frank and Matt considering that they should have kept the conditions under review and shifted the flags with changing conditions and especially with consideration that sandbars are known to change positions with the current and sharks as well. The Council also owed Frank and Matt the responsibility of putting up other signs to warn the visitors of the likely dangers considering that the number of sharks’ attacks had increased significantly in the years approaching 2000. Negligence here is based on the fact that the council owed Frank and a Matt a duty of care, to warn them of the danger that was involved in diving and surfing and the council owed this much to Frank and Matt. Mrs. Enright vs. Yaroomba Beach In March 3rd 1993, Mr. Enright, drowned at Yaroomba Beach. The plaintiff was brought forth a claim of loss of dependency. The primary issue was the negligence of the defendants who included the resort and its interests, and the local council which was in control of Yaroomba Beach. During the hearing, there was no disagreement over the fact that the defendants owed Mr. Enright a duty of care. The issue was as to the nature and extent of the duty of care was owed and especially whether there was a breach of duty. The plaintiff’s case was one of failure of the defendants to give a warning to Mr. Enright of the dangers that were involved in swimming at the unpatrolled Yaroomba Beach. The council in this case had failed to provide warning signs in the park area through which Mr. Enright accessed the beach. As for the interests of the resort, the resort had failed to warn Mr. Enright and swimmers in general of the dangers that were involved in entering the surf at an un-patrolled beach. The judgment that was passed was a careful one and Mr. Moynihan J, who was the judge referred to a numbers of cases that dealt with the issues of whether a defendant had or had not breached his duty of care to the plaintiff hence resulting to negligence. One of the cases that the judge referred to was the decision of the full court of the supreme court of Western Australia in Prast vs. Town of Cottesloe in which the issue had been whether the local authority should have provided a warning to surfers concerning the dangers of incurring serious injuries as a result of being dumped by a wave. In this case Moynihan J quoted a well known passage from the Ipp JA judgement:- “Sea conditions often change. Currents, rips and surges unexpectedly materialize. Large and unexpected waves materialize out of the deep. These phenomenons are all capable of causing serious injury or death. The currents and rips can take an unsuspecting swimmer far out to sea and result in drowning. Surges and unexpected large waves can hurl an unsuspecting swimmer against rocks or on to the seashore, with serious damage to body and limb. And yet the suggestion that signs should be placed on all beaches in Australia indicating that swimming in the sea could lead to serious injury or death would, I suggest, be absurd. The absurdity lies in the obviousness of the danger that attaches to the common every day, activity of swimming in the sea….” In concluding the case, Moynihan J. referred to Mr. Enright own contributory negligence11 in which he cited evidence that Mr. Enright had gone off on a frisk of his own. For instance Mr, Enright had been warned that Yaroomba Beach was not safe for swimming and that there were other patrolled beaches such as Coolum Beach which were safer for swimming as well as the Resort’s swimming. Secondly, Mr. Enright seems to have ignored all the hotel brochures and signs which indicated that another patrolled beach was available where pleasurable swimming could be enjoyed. The judgment was in favor of the defendants since Mr. Enright seems to have made his decisions without any reference to the defendants. However, the widow of Mr. Enright was compensated for loss Conclusion - Negligence It is evident that the defendants owed the duty of care to Mr. Enright of ensuring that he made an informed decision and that the defendants had done so however, the question of to what extend still begs because there were no signs along the beach to warn Mr. Enright of the dangers that lurked in the water. To this extend, Frank and Matt have a right to demand for their due rights, Read More