BUS203 Negligence Law Assignment Sample

• Subject Code : BUS203
• University : University of Sunshine Coast My Assignment Services is not sponsored or endorsed by this college or university.
• Subject Name : Business Law and Ethics

Business Law and Ethics

In light of the recent case, it can be easily informed that the duty of care imposed by the common law will be applicable upon the defendant as it was very evident that the risk was foreseeable and was under the control of the defendant. The negligent act of the defendant had caused severe injuries to the plaintiff and according to the Civil Liability Act of section 9; duty of care will not be breached if a person had taken all the precautionary care to prevent the potential risk1. However, this was absent in the present facts and circumstances of the case. Section 9 of the Civil liability act says that it is the responsibility of the defendant to take proper care and must foresee the potential risk in such a manner that any other reasonable person would do2.

However, it must be noticed that if the risk is not significant, the defendant cannot be held liable. For deciding whether precautionary measures have been taken by the defendant to protect the plaintiff will be considered by Court on certain grounds. According to the case of Rogers v Whitaker (1992) HCA 583, harm must be is very serious and the onus is upon the dependent to prove that he had taken precautions to avoid that harm. It is very clear in the present case that Jack owes a legal duty of care towards the plaintiff at the time of the incident as he was aware of the fact that he was a minor and do not have a license to ride the boat. Also, the defendant was well aware of the fact that the sizes of the people were huge and there is a probability that an accident could take place. As held in the case of, Civil Liability Act and section 9 was discussed stating that it is the defendant's responsibility to take measures for the risk which was absent in the present case. Thus, it is clear that Jack owes a legal duty of care towards the plaintiff at the time of the incident.

According to a reasonable prudent man, it was the responsibility of Jack to the duty of care towards the plaintiff but as per the lights of the present facts, it is clear that the common law duty of care which is imposed upon the defendant was breached by him as he could have easily foreseen the result office negligent act. As per the case of Wyong vs Shirt4(1980) 146 CLR 40, if in any particular situation, the duty of care arises on the defendant then he must have taken the entire reasonable standard step to perform his duty towards the plaintiff. In any case, if the defendant fails to perform his duty which is enshrined upon him then this is a clear case of breach of duty of care. The case of Wyong and also suggested that there is no strike test to determine the existence of a breach of duty but what can be done is that the court can look into the position of a reasonable person and his ability to determine the potential of the risk at that particular time. It is the responsibility and duty of the court to analyze the response of any prudent person in that particular incident, for which the defendant failed to perform his act. Therefore this is a clear case of breach of duty on the part of the defendant as his negligent act has caused severe injuries to the plaintiff. According to the Victorian parliament, the duty of care will arise upon any person only when the person has the reasonability to ascertain harm caused by his actions and the risk must not be very significant, only in that the duty will not be placed on the part of the defendant.

However, it must be noticed that it is the responsibility of the plaintiff to establish in the court of law that the duty has been breached by the defendant who has caused him serious harm which could have been avoided from the end of the defendant. In the light of the present facts and circumstances of the case, the plaintiff had suffered from head injuries which had also triggered his paralysis caused by the negligent act of the defendant at the time of the incident. If in a case the plaintiff would not have suffered any institute to the negligent act of the defendant, the liability on the defendant can be set aside but this is not the case in the present situation. The various test has been included by the courts like the "but for" but for the test which will determine the actual cause of the injury5. In case if it is found that the injury caused was due to the wrongful and negligent act on the part of the defendant then the liability will be imposed upon him and vice versa. There is a retrospective effect which will determine the negligent act of the defendant. Under the Civil Liability Act of 2003, the defendant must use his common sense and experience to apply in any particular practical situation according to which the judgments will be formed6.

Section 11 of the Civil Liability Act of 2003 suggests that it is very important to establish causation between the two incidents. Section 305 D of the Workers Compensation and Rehabilitation Act of 2003, also refers to the importance of establishing causation to determine the responsibility of both the plaintiff and defendant was each other7. It is the responsibility of the court to establish causation between the incidents and once it is determined that the negligent act of the defendant had caused severe injuries to the plaintiff, this is a clear case of causation. The sequence between the risk and act must not be remote. In the present fashion circumstance of the case, it is the responsibility of Paul to prove that he had suffered significant brain damage because of the negligent act of Jack.

To claim any compensation for negligence act the remedies have been instant under section 14 of the Civil Liability Act of 2003 in Queensland. The only remedy which can be taken is the reduction of the compensation of the negligent act and it is the responsibility of the defendant to prove that there was contributory negligence on the part of the plaintiff in that particular incident. According to section 18 of the Civil liability act of 2003, the provision suggests that it is the responsibility of the plaintiff that he must have taken all the reasonable steps to avoid every potential risk associated with the negligent act of the defendant. In case if it is proven that the plaintiff had failed to take the reasonable precautions which the reasonable and student person would have done then he will be said to have committed contributory negligence under the Civil Liability Act of 20038.

Section 19 of the Civil Liability Act enshrined that the defendant will not be held liable if it is proven that the other person had negligently raised his life and had contributed towards the danger just for taking a part in any recreational activity9. Riding a boat comes under recreational activity and it is very clear from the present facts and circumstances of the gas that all the three brothers had to ride the boat to enjoy the experience and in that particular incidents Paul was quite aware that it is very important to have life jackets while the person is on the boat. By taking an excuse for the hot weather, Paul did not pay any heed towards wearing the life jackets and had intentionally put himself in the risk of drowning in the deep waters. In the light of the present case, the liability of the defendant can be reduced in regards of pink heavy compensation as he can clearly show that the plaintiff had voluntarily risked his life by putting himself and all the brothers in danger as he did not choose to wear a life jacket while riding the boat. The present case revolves around the voluntary assumption of risk where he was aware of the potential of the risk involved in any recreational activities especially of riding a boat and he was the one who had accepted the risk associated with the sport. In the lights of the present facts, contributory negligence can be taken as a defence against the plaintiff by the defendant as the plaintiff had taken part in a dangerous recreational activity without taking precautionary measures.

In the case of Mcghee versus National Coal Board10[1973] 1 WLR 1, contributory negligence comes under the tort of negligence as well as under the common law and Queensland law. Under these laws, the remedies are provided for the unintentional wrongful conduct where the defendant can state in the court of law that he never had any intention to cause harm to the plaintiff. It can be seen in the present case that in the first incident Jack does not have any intention to cause harm to the brothers but it had caused unintentionally due to his wrongful act. It is the responsibility of the code to review the gravity of the damages suffered by the plaintiff due to the wrongful act of the defendant. Any person under the common law of who had not foreseen the evident potential risk associated with the negligent act will be liable to pay fair compensation to the person to whom his act had caused injuries. This will only be possible if the link of causation established between the act of the defendant and injuries suffered by the plaintiff. The onus is upon the plaintiff to prove that there was no remoteness of injuries suffered to him in the court of law.

In the landmark case of Mahony v demolitions11(1985) 156 CLR 522, the court had reflected light upon the concepts of damage and negligence which occur due to an omission caused by the defendant. It is established that in the present facts the risk was completely foreseeable on the part of the defendant and the reasonable steps can also be taken from the end of the plaintiff which was not there in the present case. In the landmark case of Overseas Tankship Limited versus Morts Dock Engineering Co. Ltd.12 [1961] AC 388., the court had held light reasonability and prudence are the soil test to determine the remoteness of damage and the activity or the negligent conduct by the defendant. If such circumstances if there is any shift found in the burden of proof upon the defendant then the same must be proved in the court of law by the defendant.

Also, the Civil liability Act 2003 reflects light upon the responsibility of the defendant, which shows that it is his onus to prove that the injuries suffered by the plaintiff were not because of it direct negligent act but because of the contributory negligence committed by the plaintiff himself. As per the common law and tort negligence, there must be a balance between the probabilities for the causation and burden of proof which has to be established by the plaintive to establish in the court. it is very clear from the facts of the present case that the plaintiff had not taken any sort of remedies but had contributed in the negligent act of the defendant by avoiding wearing the life jacket even when he had seen the sign before riding the board, that every rider was supposed to wear a life jacket to protect their life from drowning13.

Therefore, it can be concluded in the lights of the recent circumstances and facts that the defendant was a legally recognizable duty of care in signed upon him by the laws and legislation of the Queensland civil liability act 2003. Consequently, it is also established that when the duty of care was established, the facts word clear that there was a breach of that particular duty because of the negligent act committed by the defendant under tort. However, it must be noted that the compensation for the damage can be reduced on the accounts of taking a remedy for contributory negligence on the part of the plaintiff.

References for Business Law and Ethics

Legislations/Acts

Civil Liability Act of 2003

Civil Liability Act of Section 9

Section 11 of the Civil Liability Act of 2003

Section 18 of the Civil Liability Act of 2003

Section 19 of the Civil Liability Act of 2003

Section 305 D of the Workers Compensation and Rehabilitation Act of 2003

Cases

Donoghue v Stevenson [1932] AC 562.

Kavanagh v Akhtar (1998) 45 NSWLR 588

Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522

McGhee v National Coal Board [1973] 1 WLR 1

Overseas Tankship Limited v Morts Dock Engineering Co. Ltd [1961] AC 388.

Rogers v Whitaker (1992) HCA 58

Wyong v Shirt (1980) 146 CLR 40

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