ORTS-1 - problem question PDF

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Q1 First, families could bring a claim against Bill based on Compensation to Relatives Act 1897 NSW(CRA) . The rule in Baker v Bolton is partly abrogated by CRA. Spouses and children fall into the range of “relative” in s4. Adam and Carl’s executor of the estate could be the plaintiff to bring the claim. Firstly, causation is easily established because the facts show that Adam and Carl died instantly due to Bill’s negligent act. If there are there some time between the negligence or default and the death, we need to consider whether the death is reasonably foreseeable. Haber v Walker doesn’t require the death of the deceased to be reasonably foreseeable. However, latter case, Lisle v Brice requires the death of the deceased people to be the reasonably foreseeable consequence. One argument is s5D in CLA should apply in CRA. Next, Adam and Carl have a good cause of action against the defendant at the moment of his death (The StellaI). In this case,Bill, as a driver owes a duty to other drivers and passengers and he breaks his duty by negligently overtaking other vehicles and the negligence is the precondition of the victim’s death. Death is a reasonably foreseeable consequence if a driver drives negligently in highway. [Paragrah 3] But Bill could argue contributory negligence. Defence of volenti non fit injuria is not available in proceedings normally and would be treated as contributory negligence. (Motor Accident Injuries Act 2017 NSW s4.18(1)) Pursuant to 5R (2)(a) of CLA , Adam has a duty to take reasonable care for his own safety in highway and follows the road lights rules. He breaches the duty by forgetting to turn on the hazard lights. And death is a reasonable foreseeable consequence of his negligence. One thing arguable is causation because no matter whether Adam turned on the lights or not, he would still be killed by Bill. But based on Motor Accident Injuries Act 2017NSW s4.17(2)(e), Adam was contributory negligence because he has breached road rules. For damages, s4 of CRA has been interpreted as referring to recover economic loss only. One of the recoverable damages is the loss of reasonable expectation of financial benefits arising from family relationship, not other relationship e.g. business ( Franklin v South Eastern Railway Co, Burgess v Florence). It also includes loss of domestic services and supports even though the surviving spouse of family members bringing the claim does not intend to replace those lost services with paid outside assistance (Nguyen v Nguyen). And the funeral or cremation fees are also included.( s3(2) CRA), as well as hospital and medical expenses. And contributory negligence provides grounds for reduction of damages under apportionment legislation (Law Reform Act, 1965 NSW, s9). s5T of CLA constitutes an implied repeal of s 13(2) of Law Reform Act 1965 and

provides that court can reduce the claimant relative’s claim because of the contributory negligence of the deceased. To arrive at a “just and equitable” apportionment between the plaintiff and the defendant, there must involve a comparison of culpability.(Pennington v Norris) In this case, Adam failed to switch the hazard lights is a departure from the standard care of the reasonable man. But the degree of departure is far less than the driver Bill who overtakes another vehicle on the highway. I would argue that Bill’s negligence is more culpable because it involves a failure to take care of others whereas Adam’s negligence involves only a failure to take care of himself. Second, they may bring a survival claim based on Law Reform Act 1944 NSW s2(1). All causes of actions vested in Adam or Carl shall survive. As discussed above, a tort claim against Bill shall survive at the time of the death. As to damages, the deceased's executor can claim financial losses between the period of the accident and the death. It can include medical expenses and loss of earning for that period. It also includes funeral expenses but it doesn’t include non-economic loss (death was caused dependently of the tort) or any exemplary damages (s2(2)(a)(i)).

Q2 If Bill wants to establish concurrent liability, he needs to prove that Dion’s act also contributes to the cause of the death. In this case, Dion resists arrest which inevitably makes the police stay a longer time in the emergency lane. There is no established duty of care that Dion owes to the police, so we need to use the incremental approach with due regard to policy consideration.( Perre v Apand Pty Ltd ) First, it could be argued that as a reasonable person, Dion should reasonably foresee that linger in the emergency lane may bring harm to himself and the police, and the nature of the harm on the highway could be severe. If Dion could be more cooperative, the potential harm could be avoided. The nature of his behavior/activity is detestable and highly risky, especially in highway. There is a special relationship between the arrest and police. Further, following Chapman v Hearse, A person whose negligent conduct has placed himself or another person in a dangerous situation owes a duty of care to a rescuer who reasonably foreseeably responds to the situation. Similarly, Dion whose behavior has put himself into a highly risky area owes a duty to the police by submitting himself to the police swiftly and cooperatively so they can get out of the emergency zone more quickly. In short, Dion may owe a duty to the police. For breach of duty, the risk of being hit by car in highway emergency zone is not insignificant (CLA s5B(1)(b)), a reasonable man in the position would have foreseen that his conduct involves a “real” risk (Wyong Shire Council v Shirt). Second, the potential harm is serious and would lead to death, the probability of occurrence is not small and the burden of taking precautions to avoid risk is minor (CLA s5B(2)). It’s clear that Dion fails to exercise the standard of care of the reasonable person in response to a reasonably foreseeable risk. The situation is like Wagon Mound (No 2), we need to

balance low probability but foreseeable risk of unpredictable and serious harm with small expense. The cost of taking precautions is small while it ‘s reasonably foreseeable that the harm could be huge. Plus, Intoxication does not necessarily modify duty of care and standard owed.(CLA s49). For causation and scope of duty, on balance of probabilities, Dion’s resistance was a necessary condition of the occurrence of the harm (CLA 5D(1)(a)), but for his resistance, the police may leave the emergency zone earlier and could avoid the crash (Adeels v moubarak). Thus, Dion’s negligent act and Bill’s negligent driving are jointly sufficient to account for the harm and meet the test of factual causation.(Strong v Woolworth Ltd).Then, we need to consider whether it is appropriate for the scope of the liability to extend to the harm so caused(CLA 5D(1)(b)), Based on Wagon Mound No.1, the type of harm, the death caused by the car crashing in highway, is reasonably foreseeable thus the remoteness suffices. Further, Bill’s negligent driving has generated a very risk of injury and the conduct of the third party occurs in the ordinary course of things . (March v Stramare) and Bill’s act is not a deliberate, designed act thus could sever the causation chain(State Rail Authority v Chu). Dion is not free from his liability just because Bill is also negligent.(Chapman v Hearse) Bill ‘s negligence is established in [Paragragh 3]. In short, Bill and Dion are possibly concurrently negligent to the police. Police’s families may recover contribution from any one of them. The defendant could use cross-claim or seek contribution from the other tortfeasor as long as it is within the limitation afterwards. (Law reform Act 1946 s5(1)). As for the extent of Dion’s liability, in order to achieve just and equitable contribution, we need to consider the causative importance of each party and their relative culpability. (Law reform Act 1946 s5(2), Podresebersek v Australian Iron&Steel) For causative importance, I would say that Bill’s negligent driving is more liable to the death because his negligence occurs in the highway which is riskier while Dion’s negligence occurs in the emergency zone. For culpability, both are not deliberate and the degree that they depart from the standard is similar. Thus, I would argue that Bill takes around 70% liability while Dion takes 30%.

Q3 Generally, the law imposes no duty of care on people to take positive steps to help others, unless you created a dangerous situation which means the people need rescue, or you have some special relationship with the people, e.g. employee and employer. It’s an established duty owed to rescuers based on Chapman v Hearse. Bill’s negligent driving has placed himself in a dangerous situation owes a duty of care to a rescuer. Jonas is reasonably foreseeable would respond to the situation, and it is not necessary for the Jonas to show that the precise manner in which his injures were sustained was reasonably foreseeable. The ordinary principles of the tort of negligence determine the existence of a duty of care in respect of negligently inflicted psychiatric harm

requires: (a)Reasonable foreseeability on the part of a person in the position of the defendant of injury of that kind to a person in the position of the plaintiff. (b)A relationship between the parties such that the defendant should have had the plaintiff in contemplation as a person closely and directly affected by the defendant’s conduct. Factors including normal fortitude, sudden shock and direct perception are no longer the pre-condition for recovery of negligently inflicted psychiatric injury, though they might be relevant in considering the reasonable foreseeability of the injury.(Tame v New South Wales, Annetts v Australian Stations Pty Ltd) Unlike Common law, CLA s32(1) requires persons of normal fortitude.( Wick v State Rail Authority). In this case, PTSD is a recognized psychiatric injury and Jonas needs to demonstrate that there is a reasonably foreseeable risk that a rescuer of normal fortitude might suffer psychiatric illness as a result of the experiences at the scene. First, it’s reasonably foreseeable that patrol police would come by if there is a car accident. Second, S32(2) reflects control mechanisms in the common law. We need to consider the circumstances like Jonas witness at the scene that his brother, a close family member, was dead and his colleagues were also in danger. He directly perceived the shocking events with his own senses. Besides, he was in part of the rescue, rather than a bystander. Based on Wick v State Rail Authority, the shock in s30(1) is not confined to be what is perceived on first arriving at the scene but continues in more of the scenes. So what Jonas may experience e.g. witness his colleagues Phillipa being rescued immediate aftermath of the incident may also include.( Jaensch v Coffey). Thus, Jonas suffices the requirement of CLA s30 and Bill owes a duty to him. Bill breaches the duty by driving negligently which leads to a car accident and fails to take what a reasonable person would do, driving carefully in highway. Further, his negligent behavior was the pre-condition of Jonas’s PTSD. If he could drive carefully, a car accident could be saved so is Jonas’s PTSD. A psychiatric illness like PTSD is a reasonably foreseeable consequence of the possible car accident that comes from his negligent driving. But we don’t know if there is any intervening act between Bill’s negligence and Jonas’s illness. If Jonas witnessed other car accidents after this one and later suffer PTSD, then the liability of the Bill should be reduced proportionally....