Critically discuss the following statement:
“The “salient features” approach developed by the Australian Courts for identifying a duty of care in “novel” negligence situations is preferable to the UK Courts’ “fair just and reasonable” approach, because it provides the right balance between establishing the relevant principles and providing flexibility for their application to specific fact situations”.
Your answer should refer specifically to relevant case law.
In the cases relating to the tort of Negligence, there is a dire need of providing the explanation of the relationship between the relevant principles associated with the situation and the application of such principles supporting the fact of the encountered situations. The “fair, just and reasonable” approach was applied by the UK Supreme Court in the case of Christian Brothersin the year 2012 with the issue of the imposition of liability on the defendant for the vicarious liability arising due to the third party actions. Also, in another case of Michael v Chief Constable of South Wales Police,it was explained by Lord Toulson that:
“The development of the law of negligence has been by an incremental process rather than giant steps. The established method of the court involves examining the decided cases to see how far the law has gone and where it has refrained from going. From that analysis it looks to see whether there is an argument by analogy for extending liability to a new situation, or whether an earlier limitation is no longer logically or socially justifiable. In doing so it pays regard to the need for overall coherence. Often there will be a mixture of policy considerations to take into account.”
The referral to the principles rather than the policy can be dangerous in cases where analysis, advising, debating, or deciding the cases in torts that involve claims are considered. The clarity and predictability of the rule of law are considered to be the vital ingredients and the identification of principles by the courts in the field of tort law is affected. Perfect application of a principle may not be possible but its relevance in a majority of cases is possible but there is actual risk in developing new principles in the field of torts, as they may lack operability in other cases and would harm rather than help in the resolution of the issue. It is suggested that the relevance to the policy shall be given more importance over the relevant principles as the policy is an outcome of multiple cases and research, however a principle may have been developed for a specific kind of case. The decision delivered by the court after considering the principles involves a risk as it might not be applicable generally. The common law mostly develops principles and applies them as far as the introduction of the predictability and the logical cohesion in the law is considered but it also equally accepts the developments in the social, economic, ethical, and technological genres where the application of the principles is not possible blindly and needs thorough exceptions regarding the changes or the discarding of those principles at various stages.
The salient features approach by the Australian courts provides more importance on the balance that is to be maintained between the principles and the policies that exist in relation to the novel negligence situations. The salient features include the duty of care that is unlikely to be imposed when there is no connection between the parties. The current concept of negligence under the Australian law involves two components which are the foreseeability of the risk of harm and the so called negligence calculus. The foreseeability includes the precautions exercised by the person against the risks therefore including the knowledge of finding the unforeseeable risk involved. Once the risk has been identified the resolution of the issue is being done after keeping in balance, the principle involved and the policy stated for the resolution of the issue. The application of the policy and the principles in the courts creates a problem in cases where the negligent conduct of the party is present and the same will be the deciding factor if it has caused any harm to the other party.
Two years ago, Molly, who is 85 years old, moved to Top City to live near her son, Dan. Molly moved into an inner-city apartment that Dan owned. Originally, Molly intended to stay for only a month, but she changed her mind and agreed with Dan to rent the apartment permanently.
Since mid-2020, Molly has been disturbed by the activities of a local residents’ collective (“Top Street Dance Inc.” – a not-for-profit incorporated association), which has conducted energetic dance classes in Hollow Park, which is very near to Molly’s apartment. Dance classes are held 7 days a week, from 6.00 am to 6.45am. The classes include loud music, shouting, clapping and cheering.
Three months ago, the Top City Council (TCC) decided that it would try to clean up the growing drug problem in the inner city. TCC asked for expressions of interest to provide a hypodermic needle exchange, drug counselling and meals to Top City’s drug addicts. Fuelled by the success and cash flow generated from the dance classes, Top Street Dance Inc. submitted a successful tender to provide this service. It has now opened a ‘Drop-In Centre and Free Needle Exchange’ (“the Centre”) one block away from Molly’s apartment. It is rumoured that the Centre is also being used by drug addicts as a safe place to inject their drugs. Molly has a horror of drugs and a fear of drug addicts. Molly wants the Centre closed as its activities are ruining her peace of mind and her life in inner-Top City. Dan is also worried about the loss of value of the apartment if these activities continue.
Last month, Dan visited the Centre to speak to the manager and express his and Molly’s concerns. While he was in the waiting room, Dan was attacked by Max, one of the drug-users who frequents the Centre. Max had just injected himself with hallucinogenic drugs and thought that Dan was an undercover drug squad detective. Max rushed at Dan with a knife while loudly threatening to cut Dan’s throat. The Centre staff quickly stopped Max’s attack, and no blood was spilt.
Since Max’s attack Dan has been unable to sleep or work. For the past month, whenever he tries to sleep, he relives the terror of that moment when he thought Max was going to kill him. His psychiatrist has diagnosed Dan as currently suffering from acute Post Traumatic Stress Disorder, caused by his fear for his life during Max’s attack. Max does not work but receives a substantial income from a trust set up by his grandfather. Max has not been charged with any offence by the police.
The Needle Exchange Act 2002 (NT) allows ‘licensed operators to provide hypodermic needles to any person reasonably believed to be in need of them’. Top Street Dance Inc holds a licence under this Act.
Advise Molly and Dan of any claims they may have and any remedies they may seek in respect of: a) the 6am exercise classes;
Use only the law of the Northern Territory in your answer.
Rule: PERSONAL INJURIES (LIABILITIES AND DAMAGES) ACT 2003, LAW REFORM (MISCELLANEOUS PROVISIONS) ACT 1956,
Application: According to section 7(7)(c) of the Personal Liability Act, the dancing activity by the dance academy falls under the criteria of recreation and amusement and thus defines itself to be community work. However against the same, such community work if creates any disturbance to the neighbourhood and also decreasing the value of the apartments in the neighbourhood thus causing damages for loss of financial support under section 20 of the Personal Liability Act. The timings of the classes is also critical and for an old age person the intensity and the effect of the level of music and sound can be highly critical. This amount of sound can cause permanent damage therefore the same shall be taken into consideration and shall be stopped and relief shall be provided to the aggrieved party.
The needle exchange centre set up by the government authorities at the dance academy was established with a purpose as mentioned in the problem but the same was misused by the dance academy as a location to entertain the drug addicts. The centre was set up to decrease the drug addicts, whereas it is now increasing the number of these addicts by providing them the required needles easily. No monitoring of the same has been done by the dance academy or the authorities. Also the level of mental trauma that Dan has been facing due to the attack at the centre by Max, he has faced a lot of inconvenience and is highly eligible to be paid compensation as well as strict police action shall be taken against Max.
It is highly likely that the neighbourhood is getting effected negatively by the dance activities of the academy and that too at a very critical timing. Strict police action is requested against Max for the attack on Dan and also it is highly recommended to shut down the needle exchange centre as it has been transformed into a centre of drug abuse rather than drug eradication.
In recent years, the dry seasons of the Top End (the northern part of the Northern Territory) have become hotter and longer while wet seasons have become drier.
In December 2019, Carla purchased a small rural property at Buffalo Point, around 50kms south of Darwin. Before buying the property, Carla was very anxious about the risk of fire. She knew there had been a major fire in the area some years previously. When she first inspected the property in November 2020, she asked the real estate agent handling the sale, Gavin, whether the property had ever been affected by fire. Gavin said that he thought the answer was no, but he wasn’t sure, and would check with the vendor of the property, Tanya. Gavin forgot to ask Tanya about the fire risk, but when Carla called back to follow-up, Gavin told Carla that “this property has never been affected by fire”.
In fact, there had been a serious fire 10 years previously, and the property was extensively burnt out. Only the house was saved. Tanya knew this, as she owned the property at the time the fire damage occurred. Reassured by Gavin’s promise, Carla went ahead and bought the property. Carla would not have bought the property if she had known that it had been burnt out previously.
In September 2020, a small bushfire broke out in the Buffalo Point area, causing minor damage and minimal loss of property. Fire fighters were able to save most houses, however, Carla’s shed and house were both destroyed. Subsequent analysis suggested that Carla’s property was destroyed because some flying embers had landed in a pile of fuel drums behind the shed, which had ignited with explosive force, destroying the shed and setting the house on fire.
Carla knew about these drums, but mistakenly thought they were empty. In fact, they contained some small quantities of aviation fuel, which is highly flammable. Tanya had given permission to Jack, a neighbour who owns a small helicopter, to leave his empty drums there until he could dispose of them properly. Jack had forgotten about the drums which have been there for 3 years. The presence of the fuel could have easily been checked by opening any one of the drums, as the smell of aviation fuel is very strong.
On the night of the fire, Carla went to the Buffalo Point tavern to drown her sorrows. Whilst she was there, a reporter from the local newspaper, the Daily Burbler, interviewed Carla about the loss of her home. Amongst other things, Carla told the reporter: “Gavin is a liar and a cheat. He has destroyed my home and my life. He is a crook, and he should be run out of town.” The following day, the Daily Burbler published a front page article about the fire and Carla’s loss, together with a large photo of Gavin and the headline “Crooked Gavin: Menace to Society”.
Advise Carla on:
Your answer should also consider any defences that may be relevant in respect of both a) and b) above.
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