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  • Subject Name : General Law

Legal Problem Assessment

Whether Shipowners have a duty of care towards Chris and Ben

Facts

Ben and Chris celebrated their 20th anniversary by taking a 10-day cruise on Dusty Duchess. Towards the end of the trip Chris was diagnosed with a coronavirus and he was put into isolation. It was found that Chris suffered permanent lung damage due to the pressure of Bungee jumping because of Corona and Ben suffered from mental illness that is post-traumatic stress disorder and anxiety.

Issue

Whether Duty of care is owed by Dust Duchess to Chris and Ben as both have suffered damage because of the coronavirus contracted during their vacation.

Rule

Section 5B (1) of the Civil Liability Act 2002 (NSW)

Application

According to Section 5B (1) of the Civil Liability Act 2002 (NSW), A person is negligent if he has failed to act against the risk in the following cases.

  • If the risk is foreseeable
  • If the risk is significant.
  • If the person did not take the precaution that the reasonable person should have taken

In this case, the risk of occurring of the coronavirus was foreseeable. Considering that Earthy Empress had an outbreak of a novel coronavirus. Even though most of the passengers of the ship were from Australia but the staff of the ship was from different countries in the world. So there was a high probability of spreading the virus on the ship. Similarly, the ship was on a trip to the Pacific and passengers went out of the ship to different countries which were also a reason for concern, and thus the probability of occurrence of coronavirus was high.

Even though Section 5B and Section 5C of the Civil Liability Act 2002 (NSW) are classified under the duty of care it does not talk about duty of care. In Harmer v Hare[1] it was held that the heading of this section is misleading and it deals with breach of duty rather than dealing with the duty of care. As far as the Civil Liability Act is considered, it did not make any change to the common law. Whether a duty of care exists is a question of law that can be solved by referring to facts of each case.[2] Thus to find whether the duty of care exists we need to consider the neighbour test under Donoghue v Stevenson.

Donoghue v Stevenson[3] is a classic case that determined when a defendant owed a duty of care to the plaintiff. It laid down that Donoghue was Steveson’s neighbour towards whom he had a duty of care. It was held that bottling without care could have harmed the consumer. Mrs Donoghue suffered from gastroenteritis and shock because she found a snail in the bottle. Similarly in Swain v Waverley Municipal Council,[4] it was held that the Waverly council owed a duty of care towards swimmers. As lifeguards could see the sandbars which could injure any swimmer. In this case, it was held that management has control over the beach thus it was responsible for the safety of people visiting the beach.

The question that needs to be considered is whether Dusty Duchess owes a duty of care towards Chris. The outbreak of the coronavirus in another ship was known to the shipowner. The government has even informed the ships to report of an outbreak. It was known to the ship owners that there are chances that the corona will spread rapidly in the ship considering that it is a contagious disease. According to the general principle, the boat captain owes a duty to its passengers.[5] Thus it can be concluded that based on foreseeability the boat owed a duty of care towards Chris. We can even use the judgment given in Swain’s case where it was held that the management had control over the beach thus management is responsible for the swimmers on the beach. Similarly, in this case, the management of the Ship is with the ship owners thus they have the duty of care towards the people on the ship. Thus they are responsible to ensure that the coronavirus does not spread on the ship.

In Wicks v State Rail Authority of New South Wales, the appellants were police personals, who were involved in rescuing people killed in the train derailment. The question was whether the State railway Authority owed a duty of care towards these officers. If while rescuing the injured and dead they suffered recognized psychiatric illness the duty of care was owed to them.[6]Similarly, in this case, the duty of care is there towards Ben considering the mental illness suffered by Ben because of difficulty cause Chris due to coronavirus. In Annete v Australian Station Pty Ltd. [7] the son was lost during his duty in the desert and died. The owner had claimed that he would always be supervised. In this case because of the relationship between Annete and her son it was claimed that the injury caused to Annete was foreseeable. In this case too Ben suffered from mental illness due to trauma that he had to undergo because Chris was suffering from the coronavirus. We need to determine whether in this case, the injury suffered by Ben was foreseeable. In this case, too because of the relationship shared by Ben and Chris the injury caused to Ben was foreseeable.

Based on the discussion above we can conclude that because of the foreseeability of occurring of the coronavirus ship owed a duty towards Chris and because of the relationship shared by Chris and Ben, the injury caused to Ben was foreseeable. According to the Hygiene code ship owners are required to maintain sensitization station at the entry and exit based on the situation as ships are prone to infectious disease. But based on the facts given above we can't determine whether the ship violated the duty of care that they owed towards Ben and Chris

References for Dust Duchess Duty of Care

Book

Gibson Andy, Business Law (Pearson 10th ed 2018)

Cases

Annete v Australian Station Pty Ltd. [2002] HCA 35

Donoghue v Stevenson [1932] AC 562

Harmer v Hare (2011) NSWCA 229

Swain v Waverley Municipal Council [2005] HCA 4

Wicks v State Rail Authority of New South Wales [2010] HCA 22

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