Through the means of this case study, it is sought to understand the Law of Torts while simultaneously analysing and studying the Tort of Negligence.
As per the Department of Justice and Community Safety (2020), civil law spells out the privileges as well as duties of both individuals and administrative agencies in addition to non-government bodies as regards their interaction.
Violation of rights or responsibilities here does not attract criminal sanctions. Further, proceedings of a civil nature commence generally through persons or a private business, although it is open to the administration as well for enforcement of contracts and similar reliefs sought.
A tort can be said to be “a legal wrong”, where one entity, i.e., the tort-feasor, carries out, contrary to the interests of a separate entity and the usual remedy for which is an award of damages. Briefly, torts safeguard persons from the unjust actions of others as well as grant to the plaintiffs a “right to sue”, seeking either compensation for the wrongs done to them or an injunction to stop similar future instances (Australian Law Reform Commission, 2014).
Negligence, however, is specifically targeted at exercising a reasonable degree of caution for preventing injury to another. It applies to both individuals and businesses (Legal Services Commission of South Australia, 2016).
The following aspects are requisites for a single person or a corporate entity to seek relief against an act of negligence: the existence of a duty of care, violation of the said duty and consequential injury or loss.
Duty of Care: A duty of care levies on an individual, the obligation to remain reasonably cautious to prevent injury to be dealt with another. This duty is present in consequence of the association among parties. Illustrations of relations warranting duty to care are teacher and student, employer and employee, doctor and patient and lawyer and client.
Violation of Duty of Care: Where there is owed a duty of care to another, the measure of the exactness of the obligations comes from the court, and is called the “standard of care”. As per the Civil Liability Act 2002, a professional represents the level of his contemporaries. As an instance, a doctor or lawyer would be measured by the yardstick of the standard accepted most widely among them as proficient qualified practice.
As regards other cases, the standard of care can be defined as what a person of reasonable conscience would do in certain situations for minimising and mitigating the probability of injury. This standard creates an equilibrium position as regards the rights of the parties by bearing in mind the definition of “appropriate” among the parties. In case the standard is not complied with, the individual is said to have breached their duty to the other person.
Consequential loss/injury: For a person to be able to sue in negligence, harm as a consequence of the other person’s actions must be shown. Harm under negligence extends to both physical and mental harm. A court will consider a range of factors and evidence when assessing whether a person suing has suffered harm.
It is important to be aware that the harm suffered must be as a result of the actions of the other person. This is generally determined by applying a ‘but for’ test where the Court will ask: would the person have suffered harm ‘but for’ the actions of the other person (Law of Negligence Review, 2020).
As a case authority to illustrate the above discussion, the matter of Libra Collaroy Pty Ltd V Bhide ( NSWCA 196) is considered. Here, the New South Wales Court of Appeal deliberated as to who was to be held liable for the collapse of a balcony. Here, a man named Deepak Bhide was the owner of housing property in the region of Collaroy, and he engaged Libra Collaroy Pty Limited for managing the said property.
In the year 2012, some children, along with the tenant’s daughter, were standing on the balcony at the time of its collapse. The tenant filed a suit against both the owner and manager of the property. Subsequently, the agent and owner issued cross-claims against each other, pursuing the relief of indemnity as well as on the defendant on grounds of his failure to block access to the balcony despite previously lodged complaints and issues.
The court stated the following:
Delegating responsibility to a managing agent is not equivalent to a defence against a claim for personal loss
The contractual indemnity shall be exempted in the event of the existence of the presence of contributory negligence
A tenant noticing a risk of harm may be held liable for negligence if steps could have been taken to avoid the risk.
The name of the Article is "Construction Company fined $80,000 over the death of worker Wayne Vickery at worksite" by Gordon Taylor for ABC News.
Two defendants were guilty of the Tort of Negligence:
The operator of the Grader
The company of which he was an employee.
Although there are three potential defendants in the given set of facts, the company will most likely be liable for the death of the construction worker due to negligence. The reason for this is that although the driver of the grader was the immediate cause of death, the fact that he is an agent of the company and that the incident occurred during the “course of business” levies a vicarious liability over the company. Applying the facts of the matter to the law relating to Negligence, it is found firstly that the defendant i.e. the company owed a duty of care to the deceased as part of compliance with the “Work Health and Safety” or WHS regulations. Secondly, the fact that there was a violation of such a duty of care is ascertained through the lack of diligence exercised at the time of reversing the said implement and the consequential running over of the heavy machinery on the deceased. Lastly, the presence of physical harm has been expressly mentioned under the article, since the collision, which took place due to the breach of the duty of care owed to the deceased, resulted in his death.
Therefore, the three elements of Negligence would be established quite simply against the defendant.
Through the means of this case study, an endeavour has been made to better understand the law relating to both tort and negligence. These topics of law are significant in as much as they caution individuals and ensure that they observe their obligation of reasonable care and not work in a rash and inconsiderate manner, or behaving in a non-civilised manner.
Foreseeability, Standard of Care, Causation and Remoteness of Damage. Law of Negligence Review. (2020). Pp. 101-119. https://treasury.gov.au/sites/default/files/2019-03/R2002-001_Foreseeability.pdf (Accessed on May 28, 2020)
Legal Services Commission of South Australia. (2016). https://lawhandbook.sa.gov.au/ch01s05.php (Accessed on May 28, 2020)
Libra Collaroy Pty Ltd V Bhide ( NSWCA 196). https://pinpoint.cch.com.au/document/legauUio2914872sl889067249/libra-collaroy-pty-ltd-v-bhide (Accessed on May 28, 2020)
State Government of Victoria. Department of Justice and Community Safety. (2020). https://www.justice.vic.gov.au/justice-system/laws-and-regulation/civil-law#:~:text=Civil%20law%20defines%20the%20rights,to%20criminal%20processes%20and%20sanctions. (Accessed on May 28, 2020)
Traditional Rights and Freedoms-Encroachments by Commonwealth Laws. Australian Law Reform Commission. (2014). https://www.alrc.gov.au/publication/traditional-rights-and-freedoms-encroachments-by-commonwealth-laws-ip-46/16-authorising-what-would-otherwise-be-a-tort/the-right-to-sue-in-tort/ (Accessed on May 28, 2020)
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