Negligence (Essay Sample)

Negligence
Name:
Institution:
NEGLIGENCE
Question 1: Using the 4 step process explain what liability (if any) Terry Fagan Mining Pty Ltd has to Brendan Yze in the common law Tort of Negligence. (25 marks)
Question 2: Using the 4 step process discuss whether Fagan has any common law defence to Brendan’s action (assuming Brendan is successful in proving negligence against Fagan)? (10 marks).
Introduction
The area of law in question, from above facts, is the tort of negligence. The question is whether Terry Fagan Mining Pty was liable under the tort of negligence for the injuries suffered by Brendan Yze.
Relevant Law
The law of tort is apprehensive about accidental injury caused to a person, like when Brendan suffered injuries after being struck by the telescopic duct. The said law rests on two principles. First, an act or omission by the defendant must be one that interferes with the plaintiff’s right to something and cause damage and secondly, such kind of interference must give rise to a cause of action for the damages which must equate to the plaintiffs’ loss.
There are four essential elements that must be proved in court by Brendan being the plaintiff as against the defendant in order to prove liability. These are also the four steps that must be used in assessing liability (Stewart & Stuhmcke 2012). The plaintiff must prove a duty of care, which is a duty acknowledged by law that requires employers to comply with particular standards of conduct in order to protect their employees and others against any unreasonable risk. There must be a breach of that duty of care by the defendant by failing to adhere to the required standard of care. Such act or omission by the defendant must result into damages, which is the injury suffered by the complainant. There must also be a reasonable neighboring connection between the defendants conduct and the resulting injury, normally called the remoteness of damage. In determining liability in our given facts, we will address each of the above elements separately.
Any act or omission must presuppose a duty to exercise care for it to be adjudged negligent. In this context, duty means an obligation that is recognized by law to follow certain standards to t ensure protection of others against risks.
The best test for the duty of care if the neighbor principle which was laid down under common law in the English case of Donoghue v Stevenson [1932] AC 562. The cause of action in this case arose when the plaintiff became sick after taking some ginger beer that had a decomposed snail in the bottle. The drink had been bought by her friends so she could not sue under contract law but tort. The court while determining the matter stated that individuals should take reasonable care to avoid omissions or acts that can be reasonably foreseen to injure one’s neighbor. Lord Atkin defined a neighbor as “a person who is so directly and closely affected by the act or omission that the defendant ought to have thought of them before committing the said act. A similar determination was made and adopted by the Australian court in the case of Grant v Australian Knitting Mills (1933) 50 CLR 387.
Apply the law
From the above, negligence is failing to take care against unreasonable risk of foreseen injury to others. In our case, Brendan was employed by Newbold to carry out some maintenance work for Fagan. Brendan was familiar with the extraction system because he had done the work for over five years. Fagan on the other hand had reconditioned the system and changed the parts contrary to the manufacturer’s advice that required the system to be replaced. Fagan owed Brendan a duty of care, because they were requires to follow certain standards or conduct of replacing the system but they instead conditioned it.
Brendan is therefore the neighbor in this case and he was owed a duty of care by Terry Fagan Pty because he was closely and directly affected by their omitting to replace the parts in the telescopic duct as required by the law. It was reasonably foreseeable that such omission could have led to that kind of injury. In determining the existence of the duty care Brendan must therefore establish that the risk of injury caused to him was a reasonably foreseeable consequence of the Defendant’s conduct and that conduct resulted into his injuries. It is clear from the facts that the defendant acted contrary to manufacturer’s requirements and the risk was therefore foreseeable. As regards the injury sustained, the reconditioned duct that ought to have been replaced by Fagan Pty caused Brendan to fall hence resulting to his injuries.
Therefore, under common law, Terry Fagan Pty owed a duty of care to Branden.
This question is similar to asking whether or not the defendant failed to do what any reasonable person would have done in the circumstances. The key tests as regards this issue is the probability and likely seriousness of harm and the burden and value of taking precautions. For instance in the case of Wyong Shire Council v Short (1980) 146 CLR 40 the court opined that to determine if there is breach of duty of care, one has to look at the likely seriousness of the harm, the probability of the harm, the difficulty in taking precaution against the harm and the conflicting responsibilities of taking precaution.
After he court has established that a duty of care exists, it will go ahead to determine if the defendant and in our case, Terry Fagan Pty was in breach of that duty by falling below the required standard of care (Gibson & Fraser, 2007). Such determination involves the examination of the defendant’s conduct and examining whether or not they have observed an appropriate standard of care under the established facts.
The standard required to establish if there’s breach of the said duty of care is that of a reasonable person with normal intelligence. The court will therefore consider if the risk of injury to the plaintiff was reasonably foreseeable and that the defendant responded to the risk in a reasonable manner. There are several case law that illustrate on what is reasonably foreseeable and what is not. For instance, in Nova Mink v. Trans Canada Airlines [1951] the court held that air traffic noise that was causing minks to eat their young ones was not reasonably foreseeable. Similarly, in Palsgraf v. Long Island R.R. Co. (1928) the court held that a railway guard who attempted to help falling passenger and in the process fireworks exploded causing injury to plaintiff. The injury suffered was not reasonably foreseeable. However in Chapman v. Hearse (1961) court upheld foreseeability where there was a car accident and a doctor stopped to help the defendant who was the initial cause of the accident. The doctor was ran over while offering help and died in the process.
If we look at our case, the plaintiff Brandan was competent in his work and had been doing that kind of work for a period of years. It is the defendant that failed to follow the required procedure and even after so doing, they did not inform Brendan that they had reconditioned the telescopic duct. Had they given him the information may be he would have a bit careful. The risk was therefore foreseeable and could have been avoided by following the right procedure and/ or through proper communication to the plaintiff.
The defendants ought to have taken reasonable precaution against the likelihood of injury. For instance, in the case of Haley v London Electrical Board [1964] 3 All ER where a blind man fell into a trench even though there was a visual sign for the existence of the trench, the court held that a barrier should have been erected as it was foreseeable that a blind person could be walking along the path so the company should have taken precaution against it. Similarly, from our facts, it was reasonably foreseeable that any person working with the telescopic duct could have suffered injury by their malfunction because they were not of the required standard. The defendant company ought to have informed the plaintiff about that given fact because with that information, he would have most likely taken precaution against it.
This again takes us back to the neighbor principle that was established by Lord Atkin in Donoghue v Stevenson where he stated that
…“You must take care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor. Who then, in law, is my neighbor? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question…”
From the above, the defendant owed Brendan a duty of care and he was in breach of that duty of care because he did not have him in contemplation as someone who could be majorly affected by his failure to replace the telescopic duct. Such an omission on their part was reasonable foreseeable to injure their neighbor who in this case was Brendan.
Even if we look at the Civil Liability Act of Australia at section 5B (1) a person is not considered negligent by failing to take precaution against a risk of harm unless: the risk was foreseeable in the sense that the defendant ought to have known which applies to the circumstances of our case; the risk was not insignificant and to this effect the replacing the telescopic duct was the required standard and reconditioning them was a significant risk and lastly, a reasonable person in the circumstances would have taken precaution. They ought to have informed the plaintiff about the reconditioning as a way of taking precaution. By failing to do all the above, they breached the said duty of care.
The plaintiff, Brendan must have suffered loss or injury resulting from the d...