Elements required to establish negligence

Issue

The main issue of this case is related to the possibility of claims of negligence being made by P against the player, local council which owned the football ground, football club, and/or coach.  

Rule

Negligence is denoted as the breach of the duty of care resulting in injury or harm being caused to the party to which this duty of care had been owed (Bailey, 2016). In such instances where an individual is deemed as negligent, monetary compensation can be claimed upon by the injured party. For establishing a case of negligence, there is a need to show the presence of certain elements which include duty of care, breach of it, damages resulting from the breach, foreseeability, remoteness, proximity and direct causation (Gibson & Fraser, 2014).

The first step is to show duty of care being owed. In this regard, the case holding utmost significance is Donoghue v Stevenson [1932] UKHL 100 (Abbott, Pendlebury & Wardman, 2007). In this case, there was a relationship of proximity between the plaintiff and defendant, and direct causation of the sickness of Donoghue owing to dead snail in bottle manufactured by Stevenson, leading to presence of duty of care (Latimer, 2012).

The proximity of the parties is thus an important concept in this regard. When it comes to the sporting tournaments, this duty is raised amongst the coach to competitors, competitors to spectators, and competitors to competitors (Davies, 2012). For a claim of negligence, the damages cannot be too remote (Martin & Lancer, 2013). In order to award the damages, Barnett v Chelsea & Kensington Hospital [1969] 1 QB 428 put forth a test, whereby it has to be shown that the injuries would not have been caused where the duty of care had not been breached (Strong & Williams, 2011).

An important aspect is the foreseeability of losses. Bolton v. Stone [1951] AC 850 is helpful in this context. This case had the cricket club being sued for negligence by the plaintiff who had been hit by the cricket ball when she was outside her house. Though, the risk of harm was not deemed as foreseeable here by the court (E-Law Resources, 2018). A duty of care is owed by the competitors in sports to spectators. Cleghorn v Oldham (1927) 43 TLR 465 provides that a risk of accident was not assumed by the spectator. Langham v Connell Point Rovers Soccer Club [2005] NSWCA 461 made the organizers and occupiers owe a duty of care to the spectators, which led to damages of $233,758 being awarded to spectator (Davies, 2012). 

Legal principles applied in determining duty of care, foreseeability, proximity and damages

The principle of vicarious liability makes the employer liable for the work undertaken by their employees (Giliker, 2010). McCracken v Melbourne Storm [2005] NSWCA 107 saw the club being made liable for the injuries which the player sustained owing to the illegal tackle of the other player (Davies, 2012).

The case study given here shows that for holding the different parties liable, there is a need to establish the presence of negligence. Based on Donoghue v Stevenson, the duty of care would be owed in this case based on proximity between the parties. Here, there was proximity between P and the four defendant groups since the acts of these defendants could impact P in an easy manner. P’s glasses got broke and this can be deemed as an economic loss in this case which can give P the right of claiming damages for his injuries and for this economic loss. Based on Barnett v Chelsea & Kensington Hospital, these injuries would not have been caused to P, had the requisite care been undertaken by the defendant groups towards P.

An issue can be raised here by the player that he could not have foreseen in a reasonable manner that P would get hit and that based on Bolton v. Stone, the duty of care would not be owed by him. The player was not having the duty of installing the barricades in order to protect P and the player could not have predicted for P to be harmed in this manner. This means that the player could not be held accountable. For the coach and the club, this would be the same case. This is because for holding the club liable, based on principle of vicarious liability, the player would have to be held liable as well. The coach did not owe a duty of care to spectator, owing to the absence of reasonable foreseeability.

Based on the case given, the local council which was the owner of the football club is the party which can be held accountable for being negligent by not installing the requisite safety measures, which could have protected the consumers from getting injured. Based on Cleghorn v Oldham proves that being a spectator meant that P had not assumed the injury’s risk. Based on Langham v Connell Point Rovers Soccer Club, P would have to be compensated for his loss by the local council.

Conclusion

Thus, a thriving claim of negligence can be made by P only against the local council, but for the remaining three defendants, the same cannot be made owing to the lack of foreseeability.

Case study 1: Football ground injury

Issue

The key issue of this case relates to the possible case of negligence being made by Carol or/ and Ann against Bruce.

Rule

For negligence to be present, some elements have to be shown to be present. For this, there is a need to apply the leading matter of Caparo Industries plc v Dickman [1990] 2 AC 605 where the threefold test had been given. This case put forth three separate requirements which were required for showing that a duty of care had been owed. The first one is to show that there had been a reasonable risk of harm in this case; followed by the parties being in proximity to each other; and lastly to show that where the penalties are imposed, they would be fair, reasonable and just, in order to fulfil the test given in this case (Lunney & Oliphant, 2013).

Once a duty of care is shown, its breach and resulting injuries have to be shown to be present. In Paris v Stepney Borough Council [1951] AC 367, the plaintiff could see only from one eye. This was known to the defendant. Yet, the defendant did not provide the safety gear to the plaintiff, which led to his complete blindness. This was deemed as breach of duty of care resulting in injuries being caused (Martin & Lancer, 2013). 

In order to claim damages for negligence, there is a need to show that the damages did not have remoteness in them. The Wagon Mound (No 1) case is an example of the damages not being awarded owing to the remoteness of losses. This case is fully cited as Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd [1961] UKPC 2 in case name terms (H2O, 2016). The next point which has to be established in such cases is to show that the risk of harm had been foreseeable and that too in a reasonable manner. For this purpose, Wyong Shire Council v Shirt (1980) 146 CLR 40 puts forth the requirement of showing that a reasonable person would have foreseen the risk of harm (Swarb, 2015). When a case of negligence is presented, the damages can be claimed by the injured party for the harm caused to them, which includes the harm in terms of the mental distress, the economic losses, and physical injuries as well (Legal Services Commission, 2016).

The case study shows that the lawnmower owner was Bruce and this lawnmower had exploded. As a result of this explosion, Ann was injured physically and this also caused the files of Carol being destroyed. For holding Bruce liable for these, there is a need to show the presence duty of care. The work being carried on by Bruce was in proximity to the two individuals and the acts undertaken by him had the capacity of impacting both of these individuals. This means that a duty of care was present towards Ann and Carol by Bruce. The crucial aspect of this case is the foreseeability of risk of harm based on Wyong Shire Council v Shirt. It could not have been foreseen by any reasonable manner that the lawnmower would explode owing to the faulty fuel tank, as this was not a thing of common knowledge. This proves the presence of risk of harm in this matter. Further, applying the threefold test, Caparo Industries plc v Dickman, only the condition of proximity is fulfilled, but the requirement of reasonable foreseeability is not established. So, a duty of care was not owed by Bruce. Agreed that the losses sustained were substantial, instead of being remote fulfilling Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd, but the very duty of care, was absent.

Case study 2: Lawnmower injury

Conclusion

Thus, it becomes clear in this matter that where Ann and/or Carol attempt to make a case of negligence against Bruce, the same would not succeed, due to foreseeability being absent.

2.Issue

The key issue of this case relates to the possible case of negligence being made by Ann, Carol and Brue against Hank’s, Distributor and Mower.

Rule

When a case of negligence is raised before the court, the defendants often raise the defence of contributory negligence. Under this doctrine, the plaintiff adds in the harm they bear due to the negligence which the defendant undertakes. Upon this happening, the court diminishes the damages awarded to the plaintiff, based on their contribution in the loss caused to them (Dongen, 2014).

For holding the three defendants responsible, there is a need to show presence of duty of care. Donoghue v Stevenson provides duty of care owed to the consumer by the manufacturer. This was owed towards Bruce by the three defendants. Based on Caparo Industries plc v Dickman, proximity was present due to consumer manufacturer relation with Bruce. Though, this was not true for Carol and Ann since they were not the consumers here. Risk of harm could be deemed to be predictable in case of Bruce as he was a consumer and because the faculty machinery would lead to his injury based on Donoghue v Stevenson. Though, the defendants could not have foreseen two other individuals getting injured, based on Bolton v Stone. For Bruce, the imposition of penalties would be just. Where the defendants raise a defence of contributory negligence, it would fail, as there was no contribution by Bruce in the injuries which he got. 

Conclusion

Thus, Brue can make a case against Hank’s, Distributor and Mower under negligence; but this cannot be done by the remaining two plaintiffs as there was absence of proximity between them and the defendants.

3.Issue

The key issue of this case relates to the possible case being made by Ann, Carol or Bruce under ACL’s Part 3-5 against Hank’s, Distributors Ltd or Mower Ltd.

Rule

Competition and Consumer Act 2010 (Cth) under its Schedule 2 covers the provisions for ACL, i.e., Australian Consumer Law. The goal of this act is to make certain that there is presence of healthy competition and that there is proper protection given to the consumers in Australia (Corones, 2012). This act protects the consumers on different fronts like misleading or deceptive conduct, unconscionable conduct, and false representations amongst the other things. Where the ACL provisions are not upheld, penalties are imposed on the parties (Coorey, 2015).

Case study 3: Machinery injury

In order to initiate a case against the manufacturer based on the different provisions of ACL, the first requirement is to establish that the criteria of manufacturer covered under section 7 is fulfilled. Under this section, any individual who extracts, produces, grows, processes, or assembles goods and also fulfils the other requirements of this section, would be considered as a manufacturer. For the suppliers, the conditions covered in section 2 of the ACL have to be fulfilled. For making a claim based on Part 3-5 of ACL, the individuals are not required to be shown as consumer based on section 3 of ACL, in which the usage for personal purpose and monetary limits have been prescribed. Under section 9 of ACL, the claims under the quoted part of ACL can be undertaken only where the product covers a safety defect (Austlii, 2018).

Part 3-5 of the ACL is related to the manufacturer’s liabilities where a safety defect is present in the product manufactured by the manufacturing party. The consumers have been given some rights against manufacturers. Under section 138 it is provided that the liability of manufacturer is present for the harm or loss caused to another individual due to the safety defect found in the product, where the user is injured. This section also covers the liability for the injured party’s death. Under section 139, similar liability is imposed for the loss which one party has to bear as a result of injury being caused to another person or owing to the death of such other person. Under section 140 of ACL, penalty is imposed on the manufacturers for destruction of damage of goods owing to safety defects in the product. Lastly, damages to fixtures, building or land are covered under section 141 (Austlii, 2018). 

Glendale Chemical Products Pty Ltd v Australian Competition & Consumer Commission & Anor [1998] FCA 1571 saw the defendant being made liable for loss of plaintiff, where repackaging of product made the defendant as the manufacturer (Jade, 2018).

The three plaintiffs can make a claim against the three defendants as they do not have to fulfil the requirement of being a consumer for raising claims under Part 3-5. The defendants were manufacturers, assemblers, and developers, fulfilling section 7 of ACL. The physical injuries of Bruce and Ann would allow them to raise a claim under section 138 and the claims would be successful based on Glendale Chemical Products Pty Ltd v Australian Competition & Consumer Commission & Anor. For the file damages, a claim can be made by Carol under section 140. Also, for damage caused to home, Bruce can make a claim under section 141.

Conclusion

Thus, successful case can be made by Ann, Carol or Bruce under ACL’s Part 3-5 against Hank’s, Distributors Ltd or Mower Ltd.

4.Issue

The key issue of this case relates to the defendants holding any possible defences here.

Rule

ACL presents safeguards to the plaintiffs, as well as, to the defendants. This defence can be found in section 142. There is a need for the manufactures to follow the standards. Section 142(a) (iii) allows the manufactures to show that when the product was supplied, the defect was not present. Based on section 142(c) it can be shown that the defect could not be established based on available technical/ scientific knowledge. As per section 142(d), components of finished goods could be shown to have defects based on acts or omissions of the manufacturer of finished goods or owing to careless assembly (Austlii, 2018).

For section 142(a) (iii), the defendants need to show that the defect was not present during the supply time and that the standards were properly followed. Technology can be blamed through section 142(c) and through section 142(d) blame can be put on other party.

Conclusion

Thus, the defendants can cite defences under section 142 of ACL. 

References

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Austlii. (2018). Competition and Consumer Act 2010 – Schedule 2. Retrieved from: https://www.austlii.edu.au/au/legis/cth/consol_act/caca2010265/sch2.html

Coorey, A. (2015). Australian Consumer Law. London, United Kingdom: LexisNexis Butterworths.

Corones, S.G. (2012). The Australian Consumer Law. New South Wales: Lawbook Company.

Davies, C. (2012). Negligence and Risk Management and Sport. Retrieved from: https://researchonline.jcu.edu.au/25604/1/25604_Davies_2012.pdf

Dongen, E.V. (2014). Contributory Negligence: A Historical and Comparative Study. Boston: Brill Nijhoff.

E-Law Resources. (2018). Bolton v Stone [1951] AC 850 House of Lords. Retrieved from: https://www.e-lawresources.co.uk/Bolton-v-Stone.php

Gibson, A., & Fraser, D. (2014). Business Law 2014 (8^th ed.). Melbourne: Pearson Education Australia.

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

H2O. (2016). Wagon Mound (No. 1) — “The Oil in the Wharf Case”. [Online] Retrieved from: https://h2o.law.harvard.edu/collages/4919

Jade. (2018). Glendale Chemical Products Pty Ltd v Australian Competition & Consumer Commission & Anor [1998] FCA 1571; 90 FCR 40. Retrieved from: https://jade.io/j/?a=outline&id=116054

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

Legal Services Commission. (2016). Negligence. Retrieved from: https://www.lawhandbook.sa.gov.au/ch01s05.php

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

Martin, J., & Lancer, D. (2013). AQA Law for AS Fifth Edition (5^th ed.). Oxon: Hachette UK.

Strong, S.I., & Williams, L. (2011). Complete Tort Law: Text, Cases, & Materials (2^nd ed.). Oxford: Oxford University Press.

Swarb. (2016). Bolton v Stone: HL 10 May 1951. Retrieved from: https://swarb.co.uk/bolton-v-stone-hl-10-may-1951/