Analysis of Commeriacal Law Cases - Case Study Example

Tort of Negligence Name Course Lecture Date Question 1 Legal Issue John’s leg is broken after he is involved in an accident at the popular scenic Looking Point cliff. Before the accident, John is who completely intoxicated after a night of drinking and partying climbs over a protective fence erected around the cliff by the local council. At the edge of the cliff John loses his balance and falls over resulting in broken leg. The legal issue in question is whether the local council acted negligently and breached their duty of care to John and thus led to his injury. The Law To prove the local council is liable for negligence John has to satisfy that all the elements of negligence are present in the case. Negligence as defined in Blyth v Birmingham Waterworks Company (1856) 11 Ex Ch 781 refer to acts or omissions that a reasonable man would do or refrain from doing to prevent harm to others1. In this case the plaintiff will have to prove the three elements of negligence to succeed. These elements are2: a) He was owed a duty of care by the plaintiff; b) The defendant’s acts were in breach of this duty of care; c) The breach of duty by the defendant caused the injury to the defendant. a) Duty of Care The duty of care was established by Lord Atkin in Donoghue Stevenson [1932] AC 562 at 580.He cautioned people to avoid acts and omission that they can reasonably foresee will injure their neighbors3. As illustrated in Sullivan v Moody (2001) 207 CLR 562, the existences of duty of care between plaintiff and defendant can be determined using the following test4: a). Foreseeability of the possibility the defendant’s action will cause harm; b). Vulnerability of the plaintiff; c). Policy considerations In Grant v The Australian Knitting Mills (1936) A.C. 562, vulnerability of defendant is determined by a test of whether: i. The defendant was in a position to control the defendant; ii. The plaintiff’s reliance on the defendant; iii. Whether the Defendant was capable of protecting the defendant from harm. b) Breach of Duty As set out in Scott v London & St Katherine's Docks (1865) 3 H & C the plaintiff must show that defendant’s conduct did not attain the reasonable standards of care required to protect the defendant from harm5. c) Causation Finally, the plaintiff must show sufficient and direct link between his injury and the defendant’s negligent action6. Application a) Duty of care John will have a hard time proving that the Willow council owes him a duty of care to protect him from possible risk of falling off the cliff at the Looking Point. Going by the reasoning in Stovin v Wise [1996] AC 923, Local authorities do not owe a duty of care to alleviate danger in public places. However, by following the neighbour principle local authorities do owe the public and other visitors of Looking Point a duty of care to alleviate their danger of falling off the cliff7. As seen in Grant v The Australian Knitting Mills ([1936] A.C. 562, duty of care arise if a person could reasonably foresee that their conduct or omission might harm other people8. The Willow council knew of the cliff and the danger of people falling off the cliff and it can therefore be argued that they owed the public a duty of care. John might also find it hard to prove that he was vulnerable9. First, the Willow Council was not in a position to control John’s action. John climbed over the protective fence on his own voluntary will, a factor the council had little control over. Secondly, John’s actions were not reliant on the action or directions of Willow Council. Finally, the Willow council had taken the step of erecting a fence around the cliff to protect the public from foreseeable harm. Therefore it is clear John was not in a vulnerable position as regard his relationship to the council The area of public authority liability is also a contentious one. As seen in Stovin v Wise [1996] AC 923 courts are reluctant to impose a duty of care to alleviate danger on local authorities10. However, the Willow Council seems to have fulfilled its duty of care to the public by erecting a fence around the cliff. b) Proof of Breach Even if John can prove that the Willow Council owed him a duty of care, proving that they breached this duty of care is still hard. As seen in Scott v London & St Katherine's Docks (1865) breach can only be established where the defendant failed to act within reasonable standards of care11. In this case, the council’s move to erect a fence around the cliff is evidence that reasonable action was taken to protect the public from the foreseeable possibility of falling off the cliff. Therefore, the Willow Council had acted within reasonable standards of care by erecting the protective fence. As regard the failure of the council to provide warning of the danger of the cliff, breach of duty of care may be argued. However, such an argument would easily be defeated as the cliff was clearly visible and the popularity of Looking Point arose from the very existence of the cliff. John therefore knew of the apparent danger of falling off the cliff if he went beyond the protective barrier. Thus, breach of duty of care cannot be proved. c) Causation Failing to prove breach of Duty of care, John cannot claim the defendant’s negligent action were the cause of his injuries. Furthermore, the council may invoke the volenti non fit injuria argument and show John voluntarily assumed the risk by climbing over the protective barrier12. Conclusion John cannot succeed in an action of negligence against the Willow Council over their failure to prevent the injury he sustained after falling off the cliff. John’s case may not even satisfy the first element of negligence as policy considerations protect local authority from assuming a duty of care for public safety. Secondly, the Willow Council had taken reasonable care to protect John and other visitors at Looking Point from the risk of falling off the cliff. Question 2 Legal Issue While trying to open a bottle of French Champagne, Mason is hit by the cap that pops out of the Champagne Bottle. Mason sustains a bloody nose and is in pain for three weeks. There is no warning about the caps behavior on the bottle. Therefore, the legal issue of whether the champagne manufacturer acted negligently by failing to protect Mason from possible risk of harm from the ejecting bottle arises. The law In this case Mason will have to prove the three elements of negligence to succeed. These elements are13: a) He was owed a duty of care by the plaintiff; b) The defendant’s acts were in breach of this duty of care; c) Causation; the breach of duty by the defendant caused the injury to the defendant. This is mostly determined by use of the “But for” test developed in Barnett v Chelsea & Kensington Hospital Management Committee [1968] 1 All ER 106814. Application a) Proof of Duty of care Following the reasoning in Donoghue v Stevenson [1932], it is clear the Champagne manufacturer could have reasonably foreseen that the forceful ejection of the bottle cap may hurt user15. Therefore, he owed Mason a duty of care to protect him from harm while opening the Champagne bottle. In the case, the duty of care test is easily satisfied. As already seen the defendant could have reasonably foreseen the ejecting cap could cause harm to people opening the bottle of Champagne16. Moreover, Mason could be said to have been in vulnerable position when opening the bottle17. First, the Champagne manufacturer was in a position to control risk of harm as he could have used other types of caps. Secondly, Mason opened the bottle the normal way and only shook it after it failed to open. Therefore he was reliant on the fact that Champagne cap designs in Australia make the bottle safe to open. Thirdly, the Champagne manufacturer was in position to reduce the risk of harm by warning that the cap ejects violently when the bottle is shaken. Therefore, Mason’s vulnerability is this case can be easily proved. Furthermore, there is no policy consideration to prevent Champagne manufactures from assuming a duty of care to ensure that customers are not hurt when attempting to open their champagne bottles. b) Breach of Duty of Care Proving that the champagne Manufacturer breached his duty of care to ensure safety of consumers who are opening their wine bottles is straight forward. Failure to warn or notify Mason the champagne violently ejects its cap once shaken falls well below reasonable standards of care for customers18. c) Causation Similarly, a clear link between the Champagne manufacturer’s failure to warn customers of the violently ejecting cap and Mason’s injury exists19. Mason bloody nose and the prolonged period his nose pained him was a clear consequence of the Champagne manufacturer’s negligent omission. The “but for” test is easily satisfied as Mason’s injury could have easily been prevented by using a safer cap or warning him that if he shakes the bottle the cap ejects violently20. Conclusion The Champagne manufacture owes mason a duty of care to ensure that he can open his bottle with no risk of harm. The champagne manufacturer is in breach of this duty by failing to design a cap which does not pop out violently. Alternatively, they should have warned users that the bottle ejects the cap violently upon being shaken. Therefore, the champagne manufacturer is negligently liable for Mason’s injury. Bibliography A. Articles/Books/Reports Francis Trindade, Peter Cane , Mark Lunney .The Law of Torts in Australia (Oxford university Press, 2007). Sappideen, Vines, Grant & Watson, Torts: Commentary and Materials (Lawbook Co, 10th ed, 2009). B. Cases Barnett v Chelsea & Kensington Hospital Management Committee [1968] 1 All ER 1068 Blyth v Birmingham Waterworks Company (1856) 11 Ex Ch 781 Bowater v Rowley Regis Corp [1944] KB 476 Donoghue Stevenson [1932] AC 562 at 580 Grant v The Australian Knitting Mills ([1936] A.C. 562 Scott v London & St Katherine's Docks (1865) 3 H & C Stovin v Wise [1996] AC 923 Sullivan v Moody (2001) 207 CLR 562 The Wagon Mound no 1 [1961] AC 388 Read More