Law of Torts- Assignment 2020 PDF

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Facts: Initially, we need to discuss the definition of the occupier and it’s responsibility. The occupier can be a person or entity like Caravan park, and they control the land, premises or structures 1. There are many responsibilities of occupier. One of the main duties is to make sure that the premises are safe enough for those who will enter into that property. Georgina Lloyd and her partner Errol Ferguson made payment to Caravan park(occupier) to stay there. So, there was an implied contract between them that the place will be safer for them. As the placed was occupied by the caravan park. Caravan park must need to ensure the safety and security for all guests. However, Georgina Lloyd (‘plaintiff’) injured while she was coming back from the toilet at 2 am. She fell over a large rock and injured her knee which required eighteen stitches. This injury could be more serious, and she may become permanently disable or die. Legal Scope: According to the Civil Liability Act 2002 (NSW), the negligence measures who is liable for these consequences and what would be the remedies. The tort of negligence enacts the legal responsibility on a defendant when defendant have failed to do something that a reasonable person would, or would not, do in a certain situation which causes another person’s damage, injury or loss as a result2. Georgina Lloyd is a plaintiff and the defendant is the Caravan park authority. She needs to prove that the caravan Park breached the duty of care and they are also responsible for her injury. Relevant Legislation: Part 1A Negligence of the Civil Liability Act 2002. Discussion: Negligence: In most situations, Negligence applies where the defendant is liable for any harm caused to the plaintiff. There are three elements in negligence. 1. 2. 3.

Duty of Care Breach of Duty of Care Damage

Duty of Care: Although the Civil Liability Act 2002 (NSW) is not proving enough information regarding the duty of care, but this has been explained clearly in common law. To identify the negligence in any course of action, it must need to establish firstly that the dependents owed the duty of care to the plaintiff3. According to the neighbour principle which was initiated by Lord Atkin in Donoghue v Stevenson, you must take reasonable care to avoid acts or omissions that you can reasonably foresee might injure your neighbour’4. The caravan park is the occupier of this place. So, they were responsible for providing safer premises to Georgina. Sonja (Friend of Georgina) took some photographs. The first photograph shows a dark rock positioned between two posts and one rock was colour with white. In this case, CP didn’t take any action removing the black large rock. CP authority should make sure that there is nothing which could hurt or cause injury to their guests. There was a large rock which could injure anyone which the authority didn’t move it to safe place to avoid any accident. Standard care: The standard of care is the level of care that the defendant should take to meet the duty of care. If there is a high risk of injury/incident, then the reasonable person should act immediately to reduce the risk to meet their standard of care. For example, A reasonable party or authority would make sure that there are no small children where there is a swimming pool without a fence5. Similarly, the caravan park didn’t notify 1 Civil Liability Act 2002 (NSW) 2 Julia Davis, Connecting with Tort Law (Oxford University Press, 2012) 314; see also, Harold Luntz et al, Torts Cases and Commentary (LexisNexis Butterworths, 7th ed, 2013) 350-352 3 These elements of negligence emerged from Donoghue v Stevenson (1932) AC 562.

4 Ibid 5 Wyong Shire Council v Shirt (1980),

their guests that guest should aware of the rock at night-time. They should paint the rock with colour and make sure that it was visible to everyone. So, from the definition of standard of care, the caravan park didn’t meet the condition of standard care. The Plaintiff must prove that the defendant falls short of the standard of reasonable care because defendant failed to take the precaution that a reasonable person in the defendant’s position would have taken.6 b) Breach of Duty of care: According to the s5B of the CLA7,The breach of duty of care is that the negligent person has not given the appropriate level of standard of care. Foreseeable Risk: Under s 5B(1) of CLA , the foreseeable risk can be established when a person knew that there is a risk and still he or she proceeds further. The plaintiff must need to think twice before taking any risky actions. In this situation, we can find that Georgina Lloyd was going to the toilet at night from her tent. She reached to the toilet without any issue. She did see any foreseeable risk on her way and there was no given instruction that there was a large rock. From the discussion, it can be realized that she didn’t see any foreseeable risk. She became injured because the defendant didn’t take any action of removing the larger rock on the way to toilet. According to the case Donoghue v Stevenson [1932] AC 5628, you must take reasonable care to avoid acts or omissions that you can reasonably foresee might injure your neighbour’ 9. In the case Donoghue v Stevenson, manufacturer owes the duty of care to consumer and if the manufacturer is failing to do, then this could be treated as negligence. As there was no given instruction regarding the large rock. So, the defendant breached the duty of care in ignoring it. Not insignificant: According to S 5B(1)(b) of CLA, it is directed towards the assessment of the probability of the occurrence of the risk.10. In some cases, a harm can be foreseeable, and it must also not be an insignificant risk. According to the case, Drinkwater v Howarth11, ‘No duty is owed if the risk is not reasonably foreseeable, then it cannot be said that the risk was insignificant. In one photograph the two posts can be clearly seen but the offending rock is almost invisible to the naked eye because of the fading light which means the risk is reasonably foreseeable. Response to the Risk: S 5B(1)(c) of CLA indicates that if (a) and (b) are satisfied, this is very important guidelines that the plaintiff must show some reasonable precautions that could have prevented the risk. The Caravan park should have a clear footpath to the toilet. There was no defined path from her tent to the amenities block and it was very complicated way from her tent to the toilet and there was not sufficient light too. If there was any clear direction and enough lights at night, there would be a low chance to have this accident. Harm: According to the S 5B(2)(a) of CLA, the plaintiff must show that the probability of harm arising due to a failure to take precautions against the risk. Caravan Park did not take reasonable care/precaution to make the place safer, So the probability of harm to the plaintiff was higher. There were not enough signs for using the facilities there. That’s why Georgina and other guests were confused.

c)Damage:

6 Wyong Shire Council v Shirt (1980), Donoghue v Stevenson (1932) AC 562. 7 Civil Liability Act 2002 (NSW) 8 Donoghue v Stevenson [1932] AC 562 9 Ibid 10 Drinkwater v Howarth [2006] NSWCA 222. 11Ibid

According to S5D(1) of the CLA12, the causation is comprised of two elements: 1.Factual causation13 2.Scope of liability.14 Factual causation: Under S 5D(1)(a ) of CLA, ”the negligence was a necessary condition of the occurrence of the harm”15. The case, R v White16, the defendant was not liable for his mother’s death although he put some poison in his mother’s milk. From the medical report, his mother died in heart attacked not in poison. Here the injury happened due negligence of Caravan park. That’s why they should liable for the damage. Scope of Liability: According to the 5D(1)(b) Civil Liability Act 2002, the court will consider a number of activities to determine whether the defendant should be held liable. The plaintiff must need to establish that It is appropriate to extend the liability for the harm caused by the defendant17. According to the case, Cattanch v Melchoir18, the negligent doctor held responsible for the costs of raising and maintaining a healthy child. The defendant is the occupier of that place and they ignored their responsibility to make sure that the place was reasonably safe for all of the guests. Mrs Hall and her daughter reported the issue to the office before the accident happened with Georgina. That mean’s the didn’t take any action although the risk was notified to team.

d) The defences: Contributory Negligence: According to the division 8, section 5R of the CLA If plaintiff foresees the harm and failure to take reasonable care for his/her own safety, as a result the injury caused. This is contributory Negligence. The contributory negligence can be raised as a defence to part or all liability for damages by the defendant.19 A plaintiff is must need to take reasonable and ordinary care to avoid any risk. 20 According to the case, Butterfield v Forrester21, The judges found Butterfield was not riding the horse with ordinary care because he was riding at a violent speed and if he had applied reasonable care he would have avoided the obstruction.22 It can be established that the caravan park authority has breached the duty of care and also responsible for the damages caused to the plaintiff for the following reasons. 1. 2. 3.

The photographic evidence is showing that there was a large black unattended rock. Other guests in the same compound reported and authority didn’t take any action before the accident happened with Georgina. Georgina was injured by the large rock.

The partial defences of contributory negligence where a car that is speeding and a person is crossing the road without looking. Here, both parties have some part of negligent and the court will decide in what extent plaintiff is responsible for his/ her in injuries. On that evening of the accident, Georgina with her partner and friends consumed some alcohols at Tide Hotel around 10 pm and a few more drinks after with the Halls in their caravan annexe at 11.30 pm. As the incident happened at 2.00 am on that night. There is also possibility that the alcohol consumption partially contributed the injury as well. 12 Civil Liability Act 2002 (NSW) s 5D(1)(a). 13 Civil Liability Act 2002 (NSW) s 5D(1)(a). 14 Civil Liability Act 2002 (NSW) s 5D(1)(b). 15 Civil Liability Act 2002 (NSW) s 5D(1)(a).

16 R v White [1910] 2 KB 124 17 Civil Liability Act 2002 (NSW) s 5D(1)(b).

18 Cattanach v Melchior [2003] HCA 38; (2003) 215 CLR 1 19 Civil Liability Act 2002 (NSW), S5S. 20Butterfield v Forrester (1809) 11 East 60.

21Butterfield v Forrester (1809) 103 ER 926. 22 (n 2) Charlesworth & Percy on Negligence, Chapter 4 – Section 1 – Contributory Negligence

Voluntary Assumption of Risk: According to the case, Letang v Ottawa 23, in order to be succeed on the basis the voluntary assumption risk, defendants obliged to prove that plaintiff freely and voluntarily put themselves in a situation where there is an element of risk or danger. In this scenario, Plaintiff will not be able to a claim for negligence. This will not apply in this scenario as Georgina was not aware of harm. Non-Delegable Duties: The caravan park is responsible for keeping the area safe and secure for the paying guests. They control the relevant area and they would know that there was a rock which could injure anyone. There was no clear direction where to erect the tent and from there the guests can go to the places they require. So, Caravan park is has a non-delegable responsibility to prove. The timing factor: According to the section S18A(2) of the Limitation Act 1969 (NSW), the plaintiff must requires act within 3 years of the incident 24 or 12 years from act or omission25, whichever expires first. The injury occurred on 14th March 2015. So, An action must commence before 14th March 2018. Conclusion: From the above discussion, it can be established that Caravan park is responsible for the injury caused to Georgina. After analysing two photos, it was shown that there was a hidden large black rock and there was also a risk of injury from it. Some other guests reported to office before the accident happened with Georgina. But the authority didn’t take any necessary action and left it unattended. As caravan park was the occupier of the compound, so they breached the duty of care. On the other hand, the consumption of alcohol on that night also creates the contributory negligence. If she didn’t consume alcohol on that night, the situation could be diffident. The defendant can use this issue as a defence.

Bibliography:

23 Letang v. Ottawa Electric Rly Co [1926] AC 725, 24 Limitation Act 1969 (NSW) S50D: Date cause of action is discoverable 25 Limitation Act 1969 (NSW) S50C(1)(a).

Books: Davis, Julia, Connecting with Tort Law (Oxford University Press, 2012) Luntz, H, Hambly, D, Burns, K et al 2017, Torts: Cases and Commentary, 8th edn, LexisNexis Butterworths, Australia Cases: Joslyn v Berryman (2003) 214 CLR 552 Kelly v Queensland (2013) QSC 76 Nair-Smith v Perisher Blue Pty Ltd (2013) NSWSC 727 Wyong Shire Council v Shirt (1980) 146 CLR 40 Adeels Palace Pty Ltd v Moubarak (2009) HCA 48 Jaber v Rockdale City Council [2008] NSWCA 98 Kelly v State of Queensland [2013] QSC 106 Lormine Pty Ltd v Xuereb [2006] NSWCA 200 Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330 State of Queensland v Kelly [2014] QCA 27 Streller v Albury City Council (2013) Aust Torts Reports ¶82-146 Stuart v Kirkland-Veenstra (2009) 237 CLR 215 Tame v NSW (2002) 211 CLR 317 Cattanach v Melchior [2003] HCA 38; (2003) 215 CLR 1 Butterfield v Forrester (1809) 103 ER 926. Letang v. Ottawa Electric Rly Co [1926] AC 725, Stewart & Ors v Ackland [2015] ACTCA Prast v Town of Cottesloe (2000) 22 WAR 474 Legislation: Civil Liability Act 2002 (NSW) Limitation Act 1969 (NSW)...