Torts Law Spring 2020 Final Exam PDF

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Mariam Achi 19793375

Torts Law Spring 2020 Final Exam Chris v Dusty Duchess

In order for the Dusty Duchess to be liable in negligence for Chris’s harm, he must prove that the duty of care assumingly owed to him was breached. As in Heydon v NRMA, a duty is breached when the defendant falls short of the standard of care generally expected of a reasonable person. S5b of the Civil Liability Act 2002 (NSW) compels us to consider if the required standard of care has been breached. Corresponding to s5B(1), negligence cannot be established unless the foreseeability of the risk is shown, that is was ‘not insignificant’ and a failure to take the precautions of what a reasonable person in that scenario would take against the risk. CLA s5B(1) also denotes that the determination of what a reasonable person would do to prevent the risk of harm includes how probable the harm is to occur without precaution, the seriousness, the burden that taking the precaution holds and the social utility of the risky activity. The claim in negligence by Chris against the Dusty Duchess arises from a personal injury sustained as a passenger on the cruise ship during his travels. As per the notions of Donoghue v Stevenson, the tort of negligence arises from the alleged carelessness of the defendant, where an act or omission caused damage or loss to the plaintiff. On the facts of the case, Chris’s personal injury was caused as a result of the carelessness of the Dusty Duchess to take reasonable care to implement an outbreak response plan for the contagious disease. The principles established in Shirt (1980) question whether a reasonable person in Dusty Duchess’s position knew or ought to known that not taking the responsible step of implementing a strategy and regulations to combat the disease and protect the safety of their passengers would cause

Mariam Achi 19793375

adverse effects at a personal, mental and emotional level. Viewing the facts of the case with a ‘common-sense’ approach as an ordinary individual, it appears on the facts of the case that it would be a common agreement that by the Dusty Duchess not demonstrating initiative to combat the virus and ensure passenger safety, it could lead to passengers contracting the virus and a foreseeable risk. As described in the IPP Report, the phrase ‘not significant’ refers to how probable the occurrence of the risk is which ‘is intended to indicate a risk that is of a higher probability than is indicated by the phrase ‘not far-fetched and fanciful’, but not so high as might be indicated by a phrase such as a ‘substantial risk’. Ultimately, it is not concerned with how a risk has occurred, but that if the plaintiff was at risk then it cannot be argued as an insignificant risk. The risk was clear. Whether this risk is ‘not significant’ should be judged from the defendant’s perspective and not in retrospect. Therefore, it is arguable that the probability of Chris contracting a contagious disease and suffering permanent lung injury is not insignificant as contracting a disease during a pandemic on a cruise ship (a hot bed of infection) is common. The question of whether a reasonable person in the Dusty Duchess’s position would have taken relevant precautions to prevent the personal injury of Chris is considered through the application of the s5B factors, namely the ‘calculus of negligence’. Chris is required to identify precautions that could have been taken by the Dusty Duchess as a response to the risk. The implementation of many precautions could have prevented the injury suffered by Chris such as following the International Cruise Ship Health and Hygiene Code and common law principles.

Mariam Achi 19793375

In order to determine causation, there needs to be a connection between the negligence of the defendant and the injury of the plaintiff, as per McGhee v National Coal Board [1973]. Chris must prove that the injuries he sustained were caused by the Dusty Duchess’s negligence. In this case, the but-for test must be applied to establish whether the negligence was a necessary condition of the harm, whereby Chris would not have suffered the damages but for the negligence of the Dusty Duchess. Based on the factual scenario of the case, it is clear that if the Dusty Duchess had taken reasonable precautions in sustaining the spread of disease and ensuring passenger safety, Chris’s injuries would have been prevented. The CLA labels the scope of liability as a second limb of the approach to causation. In Chris v Dusty Duchess, liability has been imposed on the Dusty Duchess as it has been determined that their negligent conduct was indeed the factual cause of the harm and injuries suffered by Chris. The liability of the Dusty Duchess is limited to the harm inflicted which was their duty to take reasonable care to prevent from occurring. The test for remoteness of damage is that of reasonable foreseeability of damage as outlined in Overseas Tankship Ltd v Morts Dock and Engineering Co Ltd. It is reasonably foreseeable that conducting a cruise without adequate protection during a global pandemic will result in injuries and loss. Chris sustained personal injuries and suffered permanent lung injury, and disabilities that arose from the personal injuries that he will be compensated for. In order to determine whether Chris contributed to his suffering, the Dusty Duchess will be required to prove that there was fault by the plaintiff which contributed to the damage and argue the complete defence of ‘assumption of risk’. A plaintiff who is aware of a risk and still puts himself in the position

Mariam Achi 19793375

where the risk might eventuate, cannot recover damages if he suffers harm. As per Reeves v Commissioner of Police, ‘a person has the right to choose his own fate… but…a person may not complain of the consequences of his own actions’. The defendant will argue that Chris’s engagement in strenuous activities and failure to isolate against medical advice obtained on the cruise contributed to his injury. According to s5G of the CLA, in proceedings relating to liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk. Given Chris was aware of the risk of being onboard a cruise during a global pandemic, and once contracted symptoms continued to act against the medical advice provided to him, it is likely that the voluntary assumption of risk will be argued, as even if Chris is not aware of the precise nature, extent or manner of occurrence of the risk, he was still aware. As stated in Davis, liability for harm caused may be imposed onto another when there is a sense of responsibility over that person, as in a relationship of an employee and employer. For vicarious liability to be imposed the plaintiff must prove the negligent tortfeasor committed the tort whilst an employee within the scope of their employment. Given the facts, the Dusty Duchess will solely be held liable as the control test is not applicable as the DD did not have control over Chris, being a passenger and not an employee on the cruise. Therefore, Chris may have a claim in negligence as he will be able to establish the breach of the duty of care owed to him and the injury suffered was a necessary condition of his harm. The Dusty Duchess will most prove their defence of voluntary assumption of risk on the balance of probabilities and will be excused for any damages awarded to Chris by the court.

Mariam Achi 19793375

Ben v Dusty Duchess

The claim in negligence by Ben against the Dusty Duchess arises from a psychiatric illness sustained as a passenger on the cruise ship during his travels, as well as the financial detriment inflicted on him. The CLA provides elements that must be satisfied in order to successfully establish negligence. In accordance with s5B (1)(a), the onus to prove that the risk of harm was reasonably foreseeable by the Dusty Duchess lies with Ben. In the Wyong Shire Council v Shirt case, Mason J stated that a risk of injury is real and therefore foreseeable if it is not far-fetched or fanciful. It is reasonably foreseeable that the Dusty Duchess not demonstrating initiative to combat the virus and ensure passenger safety, could lead to passengers contracting the virus and suffering injuries. Referring to sB5 (1)(b), a person is not negligent unless the risk is ‘not insignificant’, hence Ben’s suffering of post-traumatic stress disorder and associated anxiety will most likely occur as a result of contracting the virus, but the degree of this probability will not make a difference to the result. Additionally, s5B (1)(c) allows the questioning of what a reasonable person in the Dusty Duchess’s position would have done to take necessary precautions against the risk of harm. Developed by Mason J, the calculus of negligence weighs differing factors to assess a reasonable person’s response to the foreseeable risk at hand. By not taking precautions to avoid the foreseeable harm that was ‘not insignificant’, the Dusty Duchess have breached their duty of care owed to Ben. Due to the Dusty Duchess’s failure of maintaining their duty and standard of care, Ben, on the balance of probabilities, must prove facts that are relevant to causation in this case and must prove that the DD’s negligence was a necessary

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condition for the cause of harm towards him despite the fact that he was not directly injured by the DD’s negligence. The Dusty Duchess may argue that they are not wholly responsible for Ben’s psychiatric illness as he sustained this as a result of Chris’s injury and contraction of the virus. Hence, they may not be found liable purely because their negligence brought Ben into the position where he suffered the illness. Despite this, Ben may argue that the Dusty Duchess’s lack of responsibility in handling the outbreak and safety of passengers should not be considered as novus actus interveniens, where it does not break the chain of causation as the risk of harm of psychiatric illness in this case was foreseeable. Following the partnering notion of causation, the scope of liability and imposing the responsibility of harm on the negligent party must be considered. Ben can argue that the Dusty Duchess’s acts were negligent and that it was reasonably foreseeable that by not following international health codes and guidelines, an accident would not have occurred. To argue the defence of assumption of risk, the Dusty Duchess will need to prove that Ben was aware of the risk and still chose to put himself in the position where a risk may eventuate. Given Ben was aware of the risk of being onboard a cruise during a global pandemic, and acted against the medical advice provided to him and Chris, it is likely that the voluntary assumption of risk will be argued, as even if Ben is not aware of the precise nature, extent or manner of occurrence of the risk, he was still aware.

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Damages

Ben must prove that he has suffered a loss (or 'damage') in order to be able to recover monetary compensation for the negligence of the Dusty Duchess. Damages are meant to be in line with the ‘restitutio in integrum’ principle of restoring the plaintiff back to the position they would’ve been in if the tort hadn’t occurred. They are recovered only once and cannot be reargued at a later date, as per the once and for all rule. When assessing Ben’s damages that may be awarded to him, the three ‘heads’ of loss must be assessed. Initially, Ben may be compensated for the damage of non-pecuniary loss, which is to be compensated for pain and suffering as a result of the tort of negligence inflicted by the Dusty Duchess. Moreover, Ben suffered an impairment of mental harm, and section 31 of the CLA states that there is no liability to pay damages for pure mental harm resulting from negligence unless the harm consists of a recognised psychiatric illness. Ben was diagnosed by his psychologist with post-traumatic stress disorder and associated anxiety and hence may be awarded damages for this as it was at the hand of the Dusty Duchess failing to comply with their duty of care, that caused this. Accordingly, this psychiatric illness meant that Ben was no longer able to deal with the stress of his job as CEO of a multinational investment bank, which in turn made him depressed and added to his illness. Although he was in a financial position that he did not need to work given his income protection insurance, he may be compensated for the income that he would have earned but now cannot due to his illness. The court will consider his earning capacity and expenses. As well as this, Ben may be compensated for out of pocket expenses; expenses incurred by him during any reasonable medical treatment of the illness, such as his medications.

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