The Tort of Negligence, Breach of Duty of Care, Harm or Loss Suffered - Case Study Example

THE TORT OF NEGLIGENCE ISSUE 1: LEGAL DUTY OF CARE Does a legal duty of care exist between the Rocky Shire Council and Nerla? A) Relevant Law According to CLA section 9(1) (a), for a legal duty of care to exist, the risk of harm must be reasonably foreseeable, and the defendant must be in a position of control. This can be assessed by looking at: (a)Reasonable Foreseeability Test: In this test, a fictitious person deemed to be reasonable is used. For a legal duty of care to exist, that fictitious person is put in the situation of the plaintiff. If he can foresee the plaintiff’s conduct could cause harm to the applicant, then a legal duty of care is deemed to exist. (b)Control / Vulnerability / proximity Furthermore, for a duty of care to exist, the defendant and the plaintiff must be in positions of control and vulnerability respectively. This situation should also result in the plaintiff relying on the representation of the accused expecting him or her to have their interests at heart. A duty of care can also be deemed to exist in a situation where the plaintiff and defendant are related to some extent. B) Case Examples: Donoghue v Stevenson; Chapman v Hearse; Hanlon v Hanlon and Swain v Waverley Municipal Council C) Application of law Rocky Shire Council has a legal duty of care to ensure climbers such as Nerla are warned of the danger of climbing in wet conditions. This is because: 1. A reasonable person in Rocky Shire Council’s position could reasonably foresee that a new and inexperienced rock-climber such as Nerla may visit the park. The Park had become popular with rock-climbers as Rocky Shire Council had taken steps to attract climbers to the park by upgrading the pebbly road leading to the Park, establishing one entrance and a designating parking area for visitors to the Park. 2. A reasonable person in Rocky Shire Council’s position could also reasonably foresee that a new and inexperienced rock-climber such as; Nerla may be at risk of suffering some type of harm from Rocky Shire Council’s failure to warn them of the danger of climbing in wet conditions. It is foreseeable that someone who went rock-climbing in wet conditions when the rock-faces were unstable may injure themselves or even die. 3. Rocky Shire Council controls and manages the Rocky Forest Park. It is therefore in a position of power and Nerla relied on the Rocky Shire Council to ensure that rock area was safe to climb. ISSUE 2: BREACH OF DUTY OF CARE Did Rocky Shire Council breach its duty of care? A) Relevant Law: According to CLA section 9(1), the risk of harm must be: (a) Foreseeable, (b) Not be insignificant and (c) A responsible person in the position of the defendant would have taken the precautions against the risk of harm. According to section 9(2), in this issue, the Court considers the following factors:- (a) The probability that the harm would occur if care were not taken (b) The likely seriousness of the harm (c) The burden of taking precautions to avoid the risk of harm (d) The social utility of the activity that creates the risk of harm B) Case Examples: Bolton v Stone, Paris v Stepney Borough Council and Waverley Council v Ferreira C) Application of law. The Rocky Shire Council breached its duty of care to Nerla because: (a) Rocky Shire Council ought to have known the risk of harm to a new and inexperienced climber like Nerla. (b)The likelihood of injury was not insignificant because it is expected that an inexperienced rock climber who is new to the Rocky Forest Park and inexperienced would not be in position to know that the rock-faces were usually unstable in wet conditions (c) A reasonable person in the post of Rocky Shire Council would have taken precautions against the risk of harm by ensuring that climbers such as Nerla are warned of the danger of climbing in wet conditions because:- i. There is a fair probability of harm occurring if a rock-climber went climbing in wet conditions as he/she could slip and fall; ii. The harm in failing to take precautions is likely to cause injuries, fractures, cuts bruises or even death. iii. Putting a warning sign up “unstable rock faces in wet conditions” was an inexpensive and convenient way to avoid the risk of harm. ISSUE 3: HARM OR LOSS SUFFERED Did Nerla suffer harm as a result of the breach of duty? A) Relevant Law According to CLA Section 11, (a) The defendant’s breach of duty must have caused the plaintiff’s harm (b)The plaintiff’s harm must be reasonably foreseeable Under CLA section 11(4), the plaintiff’s breach must be directly traceable to the defendant’s breach of legal duty failing of which it become too remote and, therefore, irrecoverable. (B)Case Examples: Yates v Jones, Commonwealth v McLean and Barnett v Chelsea and Kennington Hospital (C)Application of law Rocky Shire Council is responsible for: (a)Nerla’s her physical injuries. Nerla’s internal injuries and fractures were as a result of Rocky Shire Council’s breach of duty to warn her of the danger of climbing in wet conditions. This is because; 1. Nerla would not have gone rock-climbing if she saw a warning sign the rock facets in Rocky Forest Park became loose in wet conditions. She would therefore not have injured herself. 2. It can be proved that Rocky Shire Council, in fact, caused the harm by failing to put up a warning sign even though it was aware that the rock-faces were unstable in wet conditions. 3. A reasonable person could foresee that new and inexperienced climbers such as Nerla may attempt to go climbing in the absence of a warning sign and, therefore, get injured. 4. There was no event that is not reasonably foreseeable that breaks the chain of causation between Rocky Shire Council’s negligence and Nerla’s injury. 5. Nerla’s injuries are directly traceable to Rocky Shire Council’s breach of legal duty. (b) Financial losses (i) 6 months’ Pay Nerla’s internal injuries and fractures as a result of Rocky Shire Council’s breach of duty to warn her of the danger of climbing in wet conditions prevented her from walking for six months. She could therefore not engage in her employment as a school teacher and had to take no-pay leave for six months. This is because: 1. Nerla would not have gone rock-climbing if she saw a warning sign the rock facets in Rocky Forest Park became loose in wet conditions. She would therefore not have injured herself missed work and pay. 2. It can be proved that Rocky Shire Council, in fact, caused the harm by failing to put up a warning sign even though it was aware that the rock-faces were unstable in wet conditions 3. There was no event that is not reasonably foreseeable that breaks the chain of causation between Rocky Shire Council’s negligence and Nerla’s injury. (ii)Hospital Bills Nerla’s internal injuries and fractures were as a result of Rocky Shire Council’s breach of duty to warn her of the danger of climbing in wet conditions. This is because; 1. Nerla would not have gone rock-climbing if she saw a warning sign the rock facets in Rocky Forest Park became loose in wet conditions. She would therefore not have injured herself thus incurring hospital charges. 2. It can be proved that Rocky Shire Council, in fact, caused the harm by failing to put up a warning sign even though it was aware that the rock-faces were unstable in wet conditions. 3. A reasonable person could foresee that new and inexperienced climbers such as Nerla may attempt to go climbing in the absence of a warning sign would cause injuries thus causing him or her to be airlifted to hospital. 4. There was no event that is not reasonably foreseeable that breaks the chain of causation between Rocky Shire Council’s negligence and Nerla’s injury. 5. Nerla’s loss is directly traceable to Rocky Shire Council’s breach of legal duty. However, Rocky Shire Council is not responsible for $30,000 loss while gambling on Texas Holdem poker. This is because: 1. It cannot be proved that Rocky Shire Council, in fact, caused the loss by failing to put up a warning sign. 3. A reasonable person not could have foreseen that Nerla would begin gambling and lose money. 4. There is an event that is not reasonably foreseeable that breaks the chain of causation between Rocky Shire Council’s negligence and Nerla’s loss. This is Nerla’s decision to begin gambling. 5. Nerla’s loss is not directly traceable to Rocky Shire Council’s its breach of legal duty. ISSUE 4: Can Defendant rely on the Defences of ‘contributory negligence’ or ‘voluntary assumption of risk’? i). Contributory Negligence A) Relevant Law Under CLA section 23, it is available if the defendant is also to blame due to failure to take reasonable care to prevent itself from plaintiff’s harm. Courts also apply the breach of duty factors under CLA section 9 and factual causation to work out whether the plaintiff contributed to their injury. The Court will calculate the total damages payable to the Plaintiff if there was no contributory negligence but apportion liability between the Plaintiff and Defendant in percentage terms if there is contributory negligence. B) Case Examples: Ingram v Britten and Sayers v Harlow Urban District Council C) Application of Law Rocky Shire Council can rely on the defence of contributory negligence. This is because: 1. Nerla observed rocks showed signs of slippage due to the rain but went ahead and climbed. She should have been aware that, in case she slipped and fell and she would hurt herself. 2. The risk is not insignificant in the sense of being “far-fetched or fanciful” as was in Wyong Shire Council v Shirt. 3. A reasonable person in the position of Nerla would have taken one or more of the following precautions:-  Stopped climbing when she observed rocks showed signs of slippage due to the rain.  asked more about the place from those around as she was new there.  contacted a guide as she was inexperienced. Thus, an appropriate apportionment of liability may be 25% to Nerla and 75% to Rocky Shire Council. 2. Voluntary Assumption of Risk (Volenti non fit injuria) A) Relevant Law The plaintiff was aware of the risk of harm caused by the defendant and went ahead and consented to the risk voluntary. Under CLA section 14, if the risk is obvious, then the plaintiff is presumed to be aware of an apparent risk of harm unless the plaintiff can prove otherwise. According to section 13(1), an obvious risk is a risk that would have been obvious to every person in the plaintiff‘s position. Obvious risks can include risks that: 1. Are clear or common knowledge. (CLA section 13(2)) 2. May be obvious even if the probability of the risk occurring is low. (CLA section 13(3)) 3. Are not “prominent, conspicuous or physically observable” (CLA section13 (4)). B) Case Example: McCracken v Melbourne Storm Rugby League Football Club and Avram v Gusaroski. C) Application of Law Rocky Shire Council can rely on the defence of voluntary assumption of risk. This is because: i. Nerla observed rocks showed signs of slippage due to the rain but went ahead and climbed. She, therefore, accepted the risk that she could slip and fall and hurt herself. ii. It is common knowledge if one climbs on a wet surface one may fall even if the probability of the falling is low. iii. The wetness of a surface is “prominent, conspicuous or physically observable." iv. Rocky Shire Council has no duty to warn Nerla of an ‘obvious risk’ of harm.Nerla is aware of the risk of harm and has consented to risk. Nerla, therefore, bears the responsibility for the harm/loss. Thus, an appropriate apportionment of liability may be 25% to Nerla and 75% to Rocky Shire Council. OVERALL CONCLUSION Rocky Shire Council is negligent, but it has a partial defence in that Nerla was guilty of contributory negligence and voluntary assumption of risk. Nerla is entitled to a percentage of the total damages that a court would award for her injuries and financial loss. REFERENCES Civil Liability Act (CLA): section 9(1) and (2), 11, 13, 14 and 23. Online resources dictionary.aw.com/Default.aspx?selected=599 Foreseeability http://caselaw.findlaw.com/pa-superior-court/1446465.html http://casebrief.wikia.com/wiki/Barnett_v_Chelsea_%26_Kensington_Hospital_Management_Committee http://injury.findlaw.com/accident-injury-law/contributory-and-comparative-negligence.html http://www.unistudyguides.com/wiki/Voluntary_assumption_of_risk Case Law Donoghue v Stevenson [1932] AC 562 Chapman v Hearse (1961) 106 CLR 112 P. Hanlon v. J. Hanlon (3/25/94), 871 P 2d 229 Swain v Waverley Municipal Council[2005] HCA 420 Bolton v Stone [1951] AC 850 Paris v Stepney Borough Council [1950 Read More