Torts and Negligence Case Study

Torts and Negligence Case StudySajesh MaharjanIntroductionAnna, a caf leter, went to the expedition Honey Bee Nature keep Tours operated by Trevor and had injured her knees by and by stumbling down the hill side. She got treatment in the hospital and richly recoered in a month. Now Anna decides to enforce tort law against Trevor who is non only the operator but also the sole owner of the charm company for negligent exemplify and seek 12 months earnings in lost income and punitive restoration. In this regard, Anna is the plaintiff who has domiciliateed soulal speck and Trevor is the defendant who will realize to compensate for change to the complainant if proven illegal in the stage. However, the burden of proof lies with Anna and she must represent following tierce amours on the balance of probabilities that the suspect owed Plaintiff the responsibility of explosive charge, the defendant br to each oneed their traffic of heraldic bearing and the Defendant s actions bind caused the Plaintiff to suffer loss or damage. Trevor has causative scorn as a part of the defence against Anna.Duty of sustentationThe issue is whether the Defendants conduct/actions could cause harms/ combat injury to Plaintiff during the time of tour. In other words, Anna is required to prove that the someoneal injury suffered by her was jolly foreseeable and was a result of the act(s) or omission(s) of the Trevor in order to establish the craft of occupy.The neighbor principle laid out by schoolmaster Atkin in Donoghue v St blushson 1932 is dominantly used in testing whether the Defendant owed Plaintiff a duty of c ar. According to that principle, the Defendant is said to owe a duty to take intelligent care of the Plaintiff where the Defendant would have reasonably foreseen the injury to the Plaintiff by the Defendants action or carelessness. register of the duty of care is more easily recognized in bailiwicks involving open categories such as Parents and their children, employers and their employees, doctor and patients, teachers and students, manufacturers and consumers, etc. These established categories crumb be easily found in cases such as JD v eastbound Berkshire Community NHS Trust and others 2005, Smoldon v Whitworth 1997 etc.Honey Bee Nature Appreciation Tours is solely owned and operated by Trevor. He takes maximum of six lot ( nonrecreational trekkers) once per week on a six hour passing play during daylight to in bird watching and similar activities. The established fellowship of a Professional and their customers can be applicable to the case of Trevor and Anna since Trevor provides master key service of walking tours and bird-watching activities and Anna pays for that service. Moreover, it is reasonably foreseeable that his activities and carelessness have impacts on those who attend his walking tours and owe duty of reasonable care to the paying trekkers. This is supported by the case of Smoldon v Whitworth 1997 where facts were similar. Therefore, it is evident that Trevor had duty of care over Anna who attended the walking tour.BreachAfter duty of care has been well established, the next issue is whether the Defendant breached the duty of care over Plaintiff. Alternatively, the next step is to identify whether Trevors act(s) or omission(s) failed to meet the example of care required by the law. A Defendant will be held liable for negligent conduct that falls below the legally accepted stock of care for the significantly foreseeable risk of injury. It is stated in the s9 (1) of cultivated financial obligation moment 2003 (QLD) that a soulfulness is non said to have breached the duty to take precautions against the risk, unless the risk was foreseeable, the risk was not insignificant and a reasonable psyche in the similar position and circumstances of the Defendant would have taken precaution. sectionalization 9 (2) of courteous obligation Act 2003 (QLD) lists out the factor s that are taken into considerations for determining whether a reasonable person would have taken preventive measures against risk of injury which are as followsthe probability of circumstance of injury/harm without precautionthe likely sincerity of the injurythe burden of taking precautions to avoid the risk of injurythe favorable utility of the activity that cause the risk of injuryThese factors are apply in determining the standard of care that a reasonable person would have taken by balancing the first two factors against the fleck two. The risk of harm/injury is compared against the practicality of taking precautions to avoid the risks.Before the tour, Trevor sensible the tour participants to wear sensible shoes and clothing and that all the walks are conducted during daylight. He also notified regarding several fall injuries in the past because of voyages during iniquity time. He also mentions that the participants will be provided with the water and sandwiches during the hop out. One of the all important(p) facts presented in the case is that he left over(p) the tour participants (trekkers) on their own during the break so as to scout for a new-fashioned location. Moreover, he gets lost in his work and takes much longer that he pass judgment which delayed the return trip and compelled to walk during dark.A reasonable person in Defendants position would not have left the participants unsupervised for such a long time. The facts do not dis shut out whether Trevor instructed to the participants that the alcoholic beverages were allowed during the trip. However, a reasonable person would have clearly indicated whether the alcoholic beverages were allowed during the trip too sensible shoes and clothing. Similarly, a reasonable person would have scouted new places in the beginning the trip. And if the reconnoitring has to be done during the trip, a reasonable person would have taken the note of time and wouldnt delay the return. The only thing which wasnt foreseeable for a reasonable person is that someone would change into richly frump shoes in the middle of the trip during bird observation. Therefore, it can be concluded that Trevor has breached his duty of care from the given facts. This is reinforced by the case of Vaughan v Menlove 1837 where the Defendant did not acted as a reasonable person would have.DamageThe major concern here is whether the breach of duty by Trevor has caused injury to Anna. Anna has to demonstrate to the court that Trevors negligent action was the principal(prenominal) cause, though not necessarily the sole cause, of her damage. department 11(1)(a) of Civil obligation Act 2003 (QLD)clearly states that the breach of duty was a necessary condition of the occurrence of the harm. This calls for the but for test which examines would the Plaintiff have suffered the damage but for the defendants negligence. In addition to the cause, Plaintiff is also required to prove that the damage incurred wa s inside the scope of liability. Anna has to show that her injury was a foreseeable consequence of Trevors negligence.The principal here is whether Trevors negligent action of leaving the tour participants unsupervised during the break, scouting for new location without keeping track of time have caused the Anna to suffer injury. It is true that the Trevors negligent act has caused the Anna to incur personal injury. Firstly, had the Trevor not left the group unsupervised, he could have been able to find that Anna had brought wine for the trip and he could have taken actions which would avoid Anna to consume half the store of wine by herself. Secondly, if Trevor had kept track of time and while he went for scouting location, they could have made the return trip during daylight before sunset when the forest was not dark. Thirdly, Trevor knew that there is risk of fall injuries during the trip made in night or when the forest is dark. Therefore, Trevors negligent act was the cause of Annas injury which is supported by the case of Strong v Woolworths Ltd 2012 and Annas personal injury was a reasonably foreseeable consequence of Trevors negligence as in the case of Hughes v Lord Advocate 1963. defense forceAfter the Plaintiff has established the necessary duty, breach and damage, then the Defendant can institute any defences in order to reduce or eliminate their liability. The common defences are contributive negligence and voluntary effrontery of risk. The issue regarding this case is whether Anna contributed to her loss/injury and voluntarily assumed the risk.For contributory negligence, it is mentioned in the s 23 (2) of Civil Liability Act 2003 (QLD) that the standard of care of the Plaintiff is that of reasonable person in the position of the Plaintiff and what the Plaintiff knew or ought reasonably to have known at that time. In this case, Anna drank half a bottle of wine during break and changes her runners into soaring heel shoes during the return walk . Anna had also offered the wine to other people who walked the tour but everyone refused. A reasonable person in Annas position would not intake alcoholic beverages during walking tour and would not have changed their runners into spunky heel shoes. Moreover, when Anna got injured, she was under the influence of alcohol. Section 47 of Civil Liability Act 2003 (QLD) states presumption of contributory negligence if the person who suffers harm is intoxicated. Therefore, Anna has emphatically contributed towards her injury.Voluntary conjecture of risk arises in cases of recreational sports/activities which involves obvious and inbuilt risk. It is stated in the case that the bush tracks used for walking tours of Bushland border the Bunya Mountains are not particularly strenuous. Thus, there is no voluntary assumption of risk in this case.RemediesThe key concern at this point is whether the damages sought by the Plaintiff recoverable. The issue here is whether Annas claim for 12 mon ths lost in income and punitive damages for Trevors negligence are fully recoverable.Section 52 of Civil Liability Act 2003 (QLD) explains that a court cannot award punitive damage in relation to personal injury damages unless the act that caused personal injury was unlawful intentional act to cause personal injury or an unlawful sexual shock or misconduct. Similarly, it is mentioned in s 54 of CLA 2003 (QLD) that the maximum award a court whitethorn make is for an amount equal to the present prize of 3 times average weekly earnings per week for each week of the period of loss of earnings. Moreover, according to the s 24 of Civil Liability Act 2003 (QLD),In deciding the extent of a reduction in damages by reason of contributory negligence, a court may decide a reduction of 100% if the court considers it just and upright to do so, with the result that the claim for damages is defeated.We are provided with the facts that Anna is transported to the hospital and cured fully in a mon th. Despite full recovery from the injury, Anna unappealing her caf and decides to claim for 12 months in lost income and punitive damages. The facts presented in the case and the prevailing legislation suggest that she would not be awarded for punitive damages since Trevor had no intention of causing damage/harm to Anna. Moreover, she would also not be getting her claim of 12 months earnings since she fully vulcanised in a month and a court could provide a maximum award of 3 times average weekly earnings per week for the period of loss of earnings. Therefore, she may be entitled to welfare of maximum of 3 months earnings with reduction up to 100% because of her high contributory negligence.ConclusionFinally, it can be concluded that Trevor had a duty of care over Anna, breached his duty of care and caused serious knee injury to the Anna. After being fully recovered in a month, Anna decides to close down the caf and sue Trevor. Anna is likely to be awarded with 1months earnings or even less for lost income because of her high contributory negligence.ReferencesLegislationCivil Liability Act2003 (QLD) Section 9(1)Civil Liability Act2003 (QLD) Section 9(2)Civil Liability Act2003 (QLD) Section 11(1) (a)Civil Liability Act2003 (QLD) Section 23(2)Civil Liability Act2003 (QLD) Section 24Civil Liability Act2003 (QLD) Section 47Civil Liability Act2003 (QLD) Section 52Civil Liability Act2003 (QLD) Section 54CasesDonoghue v Stevenson 1932 AC 562JD v East Berkshire Community NHS Trust and others 2005 2 WLR 993Smoldon v Whitworth 1997PIQR P133, CAStrong v Woolworths Ltd 2012 HCA 5Hughes v Lord Advocate 1963 AC 837Vaughan v Menlove 1837 132 ER 490 (CP)