Georgina's legal rights in negligence against Andrew As a plaintiff, Georgina (P) has suffered a legally-recognisable harm, as she broke several of her ribs and suffered from severe internal bleeding. Georgina then need to establish a duty of care owed by Andrew (D) to her. Duty of care In order to establish a duty of care, the question to ask is that is it foreseeable that careless conduct of D will result in an injury against a class of person which P belongs to (Chapman), and that the risk that is not far-fetched or fanciful (Sullivan). Here in this case, D is a lifeguard and P is a swimmer, it is foreseeable that any careless conduct by the lifeguard may result in injury sustained by a swimmer. The careless conduct to be analysed is …show more content…
It would be incongruous for the law to forbid the plaintiff's conduct yet allow recovery in negligence for damages suffered due to an unlawful conduct (Miller). Under section 14G of the Wrongs Act 1958 (Vic), the court must consider whether the plaintiff was engaged in an illegal activity. However, G can argue that her illegality does not prevent the finding of a duty of care owed by A because she did not intentionally enter the water area where corals are present. She was able to do so because A has erected the flags for safe water zone incorrectly. Conclusion - duty of care established On balance, Georgina has a relatively strong case in finding a duty of care owed to her by Andrew. Georgina's specific reliance on the flags and Andrew's control in determining where the flags and swimmers swim point to a duty of care. Additionally, the ability to determine a class of individuals to be owed liability to (swimmers at the specific local of Sandy Beach) points to a duty of care because policy would not likely be an issue. Although Georgina might need to overcome the Andrew's arguments about the coherence of law (Miller) and knowledge, she will most likely succeed in establishing a duty. …show more content…
While the common law cases have no precedential values, they are used as illustrative purposes to argue the alleged breach of Andrew's conduct, in order to allow Georgina's claim against him under the tort of negligence. The probability that a harm would occur if care is not taken is low to medium, as there is a possibility of drowning and injury due to sharp corals and strong undertow, but it is arguably not a common occurrence. Unlike in Dederer, where there has been no previous injury before as a result of diving from the bridge, it is not known by the facts presented here whether past injuries have occurred as a result of swimming in an area of strong
The respondent (driver) is required to take reasonable care when operating his vehicle to ensure the safety of the appellant. The primary judge highlighted that "content of this duty depends on the circumstances of the case". However, the respondent breached his duty of care by taking his eyes off the road, violating s 5B and s 5C of the Civil Liability Act (NSW) 2002. The respondent nevertheless is not considered negligent as outlined in s5B (1) if he could prevent the outcome of a risk that was not
On December 12th 2012, round 5.40pm, my client, Mrs J. Smith, was involved in a car accident, which has caused her to be off work since the accident due to a broken back and several major surgeries. The accident was caused by the negligence of your client, Mr J. Sherwood, who was reported, by Mrs Smith, to be driving while ‘texting on his phone’, which led to him to crash into her car, as he did not spot at the red lights. In the previous letter I had sent, I stated what the liability requirement in the tort of negligence were, regarding this case. Now I am going to apply these criteria to the case in question. Firstly, there is evidence that the offender, Mr Sherwood, owed my client a duty of care, which he breached. The offender should have been driving reasonably, as he is an ordinary person doing a task, driving. The first part to check if a duty of care is owed is foreseeability, and it is clear that it was foreseeable that such accident would happen, as driving while using a hand-held phone would be classed as careless or dangerous driving, as the person capacity to drive would be lowered, due to them not being focused on the task, which in this case lead to a c car accident, and serious damage to a person, physical as well as mental, including the car itself.
A Civil Action portrays a fictional account of the real legal case pertaining to the hazardous waste site in Woburn, Mass. The waste site affected its surroundings, and in particular, Woburn, Mass. The waste site contaminated the river in which the community of Woburn used to drink from. Due to the water contamination, the children in Woburn have been dying of Leukemia. Although we are still ignorant of the exact cause of Leukemia, the contaminated water did affect people.
The movie “A Civil Action” released on January 8, 1999 provides viewers with an extraordinary story of the nightmare that occurred in Woburn Massachusetts in the late 1970’s. The people of this small town at the time had no idea what was going on until there were various cases of Leukemia in small children that ultimately resulted in the early passing of them. The people eventually had gone to find out that the drinking water in this small town was contaminated and there were many women that stepped in to get answers. This movie is a tremendously jaw dropping, eye opening account of a heartbreaking true story incident. There are various elements of negligence in this movie including, duty, legal cause, proximate cause and damages.
Negligence can be defined as any conduct that is ‘careless or unintentional in nature and entails a breach of any contractual duty or duty of care in tort owed to another person or persons’.(Godsell, 1993 P23)
In certain circumstances, when plaintiff succeeds in establishing duty of care, breach of duty and resulting damage, defendant may attempt to shelter behind several defences to avoid liability. Two major defences to negligence are Contributory Negligence and Assumption of Risk (Volenti Non Fit Injuria).
Before an action for negligence can succeed, it is essential that a "duty of care" exist between the plaintiff and the defendant. In Bourhill v. Young Lord Macmillan had explained the meaning of the term "duty of care". According to him, it is a duty to avoid doing or omitting to do something, which may have as its reasonable and powerful consequences, injury to others. The duty is owed to those to whom such injury may reasonably and probably be anticipated if the duty is not
Law of Torts is a civil wrong and is an unreasonable interference with the interests of others. Law of Torts provides protection against harmful conduct, it attempts to provide an impartial set of rules for resolving private disputes over claims of improper interference with individual rights. A common denominator of each Law of Tort is a failure on the defendant’s part to exercise the level of care that the law deems due to the plaintiff, and the normal remedy for this is unliquidated damages. Negligence is one of these Torts, it is an independent tort as it is an element for other torts. Negligence is causing loss by failure to take reasonable care when there is a duty to do so. To succeed in an action for negligence the plaintiff must prove on the balance of probabilities that the defendant owed the plaintiff a duty of care to avoid
The Responsibility for Accident case is about an argument between an employee, called John Schmidt, and his employer. The dispute occurred when John seriously injured his hand when operating a machine in the production shop and neither John nor the company
Contributory negligence is a partial legal defence to negligence case due to the Plaintiff failing to take reasonable care for their own safety and in-turn contributed to the accident, thus the damages reduced so the Defendant only has to pay what is fair and reasonable. Pursuant to the Civil Liability and Other Legislation Amendment Act 2010 (Qld) (CLOLA), Section 48 of the CLA now has a presumption of contributory negligence and applies
Negligence is a concept that was passed from Great Britain to the United States. It arose out of common law, which is made up of court decisions that considered whether a defendant had an obligation to act with greater care. It is conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm and involves a failure to fulfill a duty that causes injury to another. Many torts depend on whether there was intent but negligence does not. Negligence looks to see whether the person had a duty to act with care. It emphasizes the need for people to act reasonably in society. This is important because accidents will happen. Negligence helps the law establish whether these accidents could have been avoided, if there was a breach of duty to act reasonably, and if that breach was the cause of injury to that person. By focusing on the conduct rather than the intent of the defendant, the tort of negligence reflects society’s desire to
For many years there have been questions circling weather the decision held by the house of Lords in Caparo Industries plc v Dickman [1990] 2 AC presents the return to Pre-Donoghue v Stevenson [1932] AC 562 methods applied by the courts in determining and deciding the existence of duty of care in negligence. In this assignment I will investigate cases and the methods of Pre-Donoghue v Stevenson in setting out the duty of care along with the methods set, fixed and established in Donoghue v
Wyong Shire Council v Shirt10, Shaddock v Parramatta2, Majority of the government authorities found guilty by courts because of negligence and misrepresentation. Paddington council could be found guilty against Ellen. She can claim damages, rewards and compensation in the court. Hedley Byrne v Heller Partners, the tort law case on pure economic loss, resulting from a negligence and misrepresentation. Prior to the decision of the notion that one may owe another a duty of care for statements occurred. Before the judgement Civil Liability Act to be consider as a main act. Considering all the legal cases and applying in the case of Ellen v Paddington city council, it seems to be Paddington city councilwould be held responsible or liable for Ellen economic status and mental injury.
The duty of care exists in the relevant situation where risk of harm or injury to plaintiffs was ‘reasonably foreseeable’ and the plaintiff was ‘closely and directly affected’ by the defendant’s act. The injuries not only include personal injury or property damage but also the risk of purely economic loss, for example, resulting from negligent misstatements.
This case deals with the defendant David Jones Ltd versus Willis the plaintiff, on the appeal from the supreme court of New South Wales. The case is related to The Sales of Goods Act 1923(C¡¦th). In the case the plaintiff purchased a pair of shoes from the defendant David Jones, a retail distributor of footwear not manufactured by it. On the third occasion of wearing the shoes the heel came off while the plaintiff was walking down the stairs. She fell over and suffered injuries. She sued for damages. The court held that there was a breach of the conditions of merchantable quality and fitness for purpose.