Elements of Negligence

Whether Li Min can successfully sue Wang Wie or ScubaEats for Negligence, or not?

Whether Li Min can successfully sue Wang Wie or ScubaEats for negligence, or not?

A civil wrong done is denoted through a tort and negligence is deemed as one of the torts. In a case of negligence, party “X” owes a duty of care towards party “Y” and there is a violation of this particular duty[1]. The result of this duty, to create of case of negligence, has to be substantial injury, which is not remote and where the breach of duty of care directly results in the injury suffered by “Y”. In such cases, “Y” gets the opportunity of initiating a legal claim against “X” for negligence and gets compensated for their losses[2].

In order to show that a person was indeed liable for negligence, there is a need to show the presence of certain elements, which includes duty of care, breach of duty of care, dames/ loss/ injury, loss being not too remote, direct causation and foreseeability[3]. For establishing a duty of care, it needs to be shown that “X” owed a duty of care towards “Y”. Section 42 of Civil Law (Wrongs) Act, 2002[4] provides that the standard of care is what a reasonable person would have done in similar circumstances[5].

Donoghue v Stevenson[6] which presented the criteria for establishing the presence of duty of care. Here, the plaintiff D was sitting at a café and he ordered a drink. Upon the consumption of this drink, she fell sick as a dead snail was inside this bottle, which contaminated it. D brought actions against the defendant “S” for negligence. The defendant claimed that he did not owe a duty of care to D. However, the court found otherwise and with this, the neighbor test was presented. The court stated that the relationship between two people and the ability of actions of X directly affecting Y had to be considered. And so, S was asked to compensate D for her loss.

The next step is to show that the duty of care was breached. For this purpose, the case of Paris v Stepney Borough Council[7] proves of help. In this case, the plaintiff was working on a rusty bolt, when it jumped and hit his good eye, which resulted in him being blinded. The defendant was held to have breached his duty of care as the plaintiff was not provided the necessary safety equipments and gears which could protect him, especially when the defendant had been aware of the fact that the plaintiff was already blind in one eye. Due to these reasons, the defendant was required to compensate the plaintiff for their loss.

Duty of Care

The next essential is to show that the damage suffered by Y is substantial and is not remote[8]. In Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd[9], the court did not award any damage to the plaintiff as the damages were remote. The next element relates to foreseeability; in the sense that thee damages have to be reasonably foreseeable for the damages to be awarded[10]. In Vaughan v Menlove[11], the defendant had been persistently given warnings about the chances of the building catching fire as it was not properly ventilated. The defendant never worked on these warnings and chose to ignore them due to which, the court held the defendant liable for negligence. The reason behind this was that a prudent individual would have paid heed to such warnings and by not considering this, the plaintiff was required to be compensated by the defendant.

The next element is to show direct causation between the injury suffered and the negligence of X. Hence, there is a need to show that due to the actions of X, Y suffered the injuries and there was a direct link between them[12]. Upon successfully showing that all these elements of negligence had been present, a claim for negligence can be made. When this is done, the monetary damages for the losses can be made. The claim can be made for the physical injury and also for the economic losses incurred[13].

When a case of negligence is made against “X” by “Y”, party “X” can use the defense of contributory negligence. Upon successfully showing that “Y” had contributed towards the injuries sustained by him, the damages awarded to “Y” are reduced by the amount decided by the court[14]. Froom v Butcher[15] was a case where due to the fault of the defendant, the plaintiff was injured. However, at the time of the incident, the defendant was not wearing the seatbelt. Due to this reason, the damage awarded to the plaintiff was reduced by £100 by the court.

Vicarious liability is a concept which arises from the agency law where the employer is held accountable for the actions of their employees, particularly the ones related to a tortious act. In order to hold the employer responsible, the tortious act is required to be taken during the employment course. Vicarious liability is born from the Latin phrase of “qui facit per alium facit per se” and it means that an individual would be considered to act through another[16]. For holding the employer liable, there is also a need to show that the person was the employee of the employer. There are different tests like the control test and the integration test which help in the making of this decision. However, the most useful test is the multi-factor test as per which the situations revolving around the relationship of two individuals is to be considered for naming the kind of relationship[17]. This test was primarily given in Stevens v Brodribb Sawmilling Co Pty Ltd[18] and received confirmation afterwards in Hollis v Vabu Pty Limited[19]. Hollis v Vabu Pty Limited is particularly important case as in this case the bicycle courier was deemed to be the employee due to the presence of factors like wearing uniform, strict star timings, and bicycle being provided to him.

Breach of Duty

In the given case study, for Li Min to hold Wang Wei liable for negligence, a duty of care has to be shown. On the basis of Donoghue v Stevenson, the relationship between the two has to be analyzed. Here, Wang Wei was driving his bicycle on the road and he owed a duty of care to all of the others who were on road. This is further clear from the ACT Road Rules which required he motorists and cyclists to stop when they saw pedestrians so that a collision can be avoided. Even when this duty was owed by Wang Wei, he failed to undertake care in his bicycle riding and cycled fast to reach early, to cover the loss of time from the detour he took. By doing so, his duty of riding the bicycle carefully was breached. And this breach of duty, on the basis of Paris v Stepney Borough Coun, would make Wang Wei liable to compensate Li Min. Wang Wei’s actions were such that a reasonable person would have foreseen the chances of collision.

Applying Vaughan v Menlove, Wang Wei ignored the ACT Road Rules. The damage suffered by Li Min was such that she had to be hospitalized for three days. Even though these were minor injuries, they required hospital stay. So, a claim for hospital expenses can be made. Along with this, she can make a claim for the economic losses suffered by her which resulted from her being discharged from internship for poor performance. However, she cannot make a claim for quitting her job as it was a voluntary decision and not occurred due to the negligence of Wang Wei. In short, Li Min can initiate a case of negligence against Wang Wei and claim the expenses of hospital, her physical injury in form of headaches and the course fee.

In this case, a case of contributory negligence can be made by Wang Wei against Li Min. This is because Li Min was indulged in her phone and was not paying attention to the road. Had she been paying attention, she could have moved aside and the accident could have been avoided. These actions of Li Min contributed towards her injuries, and on the basis of Froom v Butcher, the damages awarded to her would be reduced.

The applicability of vicarious liability would make ScubaEats liable for compensation Li Min for her loss, owing to the negligence of Wang Wei. Though, for this, Wang Wei has to be shown as the employee of ScubaEats. Applying the case of Hollis v Vabu Pty Limited, Wang Wei has been given the uniform by ScubaEats and also rides the bicycle given by them. The facts of this case are similar to Hollis v Vabu Pty Limited and similar to this case, the employer would be held liable for negligence of their employee.

Substantial Damage

Conclusion

On the basis of discussion carried above, it is clear that Li Min can successfully sue Wang Wie and ScubaEats for negligence. However, the damages awarded to her would be reduced by the amount of contributory negligence, as decided by the court.

A.Articles/ Books/ Reports

Abbott K, Pendlebury N, and Wardman K, Business law (Thompson Learning, 8^th ed, 2007)        

Bailey VE, Cape Law: Text and cases: Contract law, Tort law and Real property (AuthorHouse, 2^nd ed, 2016)

Gibson A, and Fraser D, Business Law (Pearson Higher Education AU, 2013)

Giliker P, Vicarious Liability in Tort: A Comparative Perspective (Cambridge University Press, 2010)

Graw C, Parker D, Whitford K, Sangkuhl E, and Do C, Understanding Business Law (LexisNexis Butterworths, 8^th ed, 2016)

Latimer P, Australian Business Law 2012 (CCH Australia Limited, 31^st ed, 2012)

Lunney M and Oliphant K, Tort Law: Text and Materials (Oxford University Press, 5^th ed, 2013)

Morissette EL, Personal Injury and the Law of Torts for Paralegals (Aspen Publishers Online, 2008)

Stewart P, and Stuhmcke, Australian Principles of Tort Law (Federation Press, 2009)

Turner C, Unlocking Torts (Routledge, 3^rd ed, 2013)

Cases

Donoghue v Stevenson [1932] UKHL 100

Froom v Butcher [1976] 1 QB 286

Hollis v Vabu Pty Limited (2001) 207 CLR 21

Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd [1961] UKPC 2

Paris v Stepney Borough Council [1951] AC 367

Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1

Vaughan v Menlove (1837) 132 ER 490

Legislations

Civil Law (Wrongs) Act, 2002 (ACT)

Tort of Negligenc

Mark Lunney and ‎Ken Oliphant, Tort Law: Text and Materials (Oxford University Press, 5^th ed, 2013)

Andy Gibson and ‎Douglas Fraser, Business Law (Pearson Higher Education AU, 2013)

Stephen Graw, David Parker, Keturah Whitford, Elfriede Sangkuhl and Christina Do, Understanding Business Law (LexisNexis Butterworths, 8^th ed, 2016)

Civil Law (Wrongs) Act, 2002 (ACT)

Civil Law (Wrongs) Act 2002, s 42

[1932] UKHL 100

[1951] AC 367

Chris Turner, Unlocking Torts (Routledge, 3^rd ed, 2013)

[1961] UKPC 2

Paul Latimer, Australian Business Law 2012 (CCH Australia Limited, 31^st ed, 2012)

1837) 132 ER 490

Pamela Stewart and Anita Stuhmcke, Australian Principles of Tort Law (Federation Press, 2009)

Keith Abbott, ‎Norman Pendlebury and Kevin Wardman, Business law (Thompson Learning, 8^th ed, 2007)              

Emily Lynch Morissette, Personal Injury and the Law of Torts for Paralegals (Aspen Publishers Online, 2008)

[1976] 1 QB 286

Paula Giliker, Vicarious Liability in Tort: A Comparative Perspective (Cambridge University Press, 2010)

Veronica E. Bailey, Cape Law: Text and cases: Contract law, Tort law and Real property (AuthorHouse, 2^nd ed, 2016)

[1986] HCA 1

(2001) 207 CLR 21