Did the Defendant Have a Duty of Care for the Plaintiff - Assignment Example

Negligence law Name University Course Tutor Date Negligence law 1. Issue: Did the defendant have a duty of care for the Plaintiff? Relevant Law (a) Reasonable Feasibility Test Was it reasonable to foresee that the conduct of the defendant was the actual cause of the harm? Was the Plaintiff accompanied by an individual or group of individual with the possibility of being harmed by the actions of the defendant? (Statsky, 2010) Case: Nova Mink Ltd v Trans Canada Airlines [1951] (b) Control of Vulnerability Was there a relationship of dependency or vulnerability between the plaintiff and the dependant? Was it possible (by position, legal duty, or resources) for the defendant to be protective to the plaintiff; and was the plaintiff relying on the dependant? Bryan v Maloney (1995) Application In the case Nova Mink Ltd v Trans Canada Airlines [1951], the pilot of the airplane that flew over the plaintiff’s mink farm did not have the responsibility of taking care of the farm thus he/she did not have the duty of care. In addition, the crew was not aware of the presence of the farm implying that it is not reasonable to claim that the harm was caused by the behavior of the pilot who flew the defendant’s plane over the farm. In addition, at the time of the incident, the plaintiff was not in the company of an individual or a group of individuals who could ascertain that the harm was as a result of the plane that flew over the dependant’s farm. In the case Bryan v Maloney (1995), the house would not have developed a crack if the building was not defective. In this case, there was causal proximity that could have prevented the harm. Ideally, the harm and negligence of the builder had direct connection which according to the Control of Vulnerability law was in capacity to prevent the harm. 2 Issue: Did the defendant breach the duty of care (standard care)? (Statsky, 2010) Relevant Law Foreseeable risk of harm: Section 9(1)(a) of the Civil Liability Act on whether the risk of harm was foreseeable Section 9(1)(b) on whether the risk was significant or insignificant Section 9(1)(c ) on whether an individual in the position of the defendant was capable of taking precautions to stop the risk of harm (Cross & Miller, 2014) There are at least four issues arising from this relevant law, starting with section 9(2)(a) which raises the issue of what would have been the possibility of care diverting the harm (Statsky, 2010). Section 9(2)(b) raises the issue of the how serious the harm was likely to be Section 9(2)(c ) raises the issue of the burdens that would be associated with any precautions that would have been taken in attempts to avoid the risk. Ideally, this issues concerns the expertise with which risk of harm would have been evaded or the inconveniences that would have occurred if such a move had been taken (Miller & Hollowell, 2004). Section 9(2) (d) raises the issue of the social utility of the activity with the capability of creating risk of harm. Case: Bolton v Stone [1951] Application In the case Bolton v Stone [1951], the risk was not foreseeable as it ought to be according to section 9(1)(a). It was not easy to see the possibility of such a harm considering that the court had a 17ft high fence with the distance between the wicket and the fence being 78 yards. This is quite a long distance for any one to see the possibility of the plaintiff being hit by the cricket ball. The risk of this accident was insignificant. With the measures that had been taken around the cricket pitch and the distance between the plaintiff and the wicket, it could not be possible to sense the possibility of an accident. In this case no one could reasonably claim that a defendant could take precautions to divert the risk of this harm. Indeed, in order to have the rare risk avoided, perhaps the game would have been postponed. 3 Issue: Causation and damage: Did a breach of duty by the defendant result to the harm on the Plaintiff? Relevant Law There are two limb tests provided by Section 11 of the Civil Liability Act: these are Factual causation and Scope of Liability (a) Factual Causation-Section 11(1) (a) seeks to find out whether action of the defendant has been the actual cause of harm on the Plaintiff. Section 11(3) applies if the court has established that if there is factual relevant causation; in this case the “but for test” provided by section 11(3) is applied. Case: Barnett v Chelsea and Kensington Hospital Management Committee [1969] (b) Scope of Liability Section 11(1)(b) seeks to find out whether it is right for the defendant’s liability’s scope to have an extension to the harm that has occurred on the Plaintiff. This has the implication that it ought to be found out whether the defendant has responsibility for the harm (according to section 11(4). Otherwise, the court ought to find out whether the harm is sufficient enough to be termed as a negligence of the defendant or whether it was just too remote (Elzinga & Breit, 1976). Case: Commonwealth v McLean; Barnett v Chelsea and Kensington Hospital Management Committee (1968) Application In the case Barnett v Chelsea and Kensington Hospital Management Committee [1969] the husband of the Plaintiff did not actually die because of the act of the defendant. Although the doctor on duty instructed the nurse to tell the husband of the Plaintiff to go home, that was not the actual cause of the death. In the real sense the tea that had been taken by the husband of the Plaintiff had arsenic poison. In the case Commonwealth v McLean; Barnett v Chelsea and Kensington Hospital Management Committee (1968), the scope of the defendant’s responsibility was not wide enough to have it termed as liability. After the collision of HMAS Melbourne and the HMAS Voyager the Plaintiff suffered an injury but throat cancer. 4 Issue: Is there possibility of the defendant relying on the Defenses of ‘contributory negligence’ or ‘voluntary assumption of risk’? Relevant Law (i) Contributory Negligence: this has the implication that the Plaintiff had partial participation in the harm (Australia, Law Reform Commission, 1988) In such a case, the court is expected to apply section 9 which provides for factual causation and breach of duty factors with an objective of establishing whether the Plaintiff has contributed to the harm or not (Turner, 2009). Upon establishing that there is contributory negligence, it is the duty of the court to have liability apportioned between the Plaintiff and the Defendant in terms of percentages. (ii) Voluntary Assumption of Risk: In this case the court ought to establish the possibility of the Plaintiff having been aware of the risk and deciding to take it. If the court establishes that, the Plaintiff was aware of the risk, and decided to take it, the decision holds that the Plaintiff has full responsibility for the harm (Davenport &Parker, 2012) Application Ingram v Britten (1994) In the case Ingram v Britten (1994), the Plaintiff was well aware of the risks associated with speeding in the midst of tress yet the tractor did not have a metal frame fitted for protection. This is thus voluntary assumption of risk. General Conclusion In any case the ruling of the court will be upon the establishment of who played a bigger role in negligence (between the Plaintiff and Defendant). Following defenses of negligence, the court twill either decide between contributory negligence and voluntary assumption of risk. Thus, the Plaintiff and the defendant may share the liability in percentages or the Plaintiff may bear 100% responsibility. References Australia, Law Reform Commission (1988) Discussion Paper No. 30, Sentencing Penalties, paras. 283-307. Cross, F. & Miller, R. (2014). The Legal Environment of Business: Text and Cases. Stamford: Cengage Learning. Davenport, S. &Parker, D. (2012). Business and Law in Australia. Australia: Thomson Reuters. Elzinga, K. & Breit, W. (1976). The Antitrust Penalties: a Study in Law and Economics. New Haven: Yale University Press. Miller, T. & Hollowell. (2004). Business Law Text and Exercises. Stamford: Cengage Learning. Statsky, S. (2010). Torts: Personal Injury Litigation. Stamford: Cengage Learning. Turner, C. (2009). Australian Commercial Law. Sydney: Lawbook Company. Read More