A1. Background Negligence is covered by Chapter 4 of the Civil Law (Wrongs) Act, 2002. Elements of Negligence As per Donoghue v. Stevenson1, the elements…

A1.

Background

Negligence
is covered by Chapter 4 of the Civil Law (Wrongs) Act, 2002.

Elements
of Negligence

As
per Donoghue
v. Stevenson1,
the
elements of a negligence claim are duty, breach and causation. The
plaintiff is vested with the ultimate burden of proof with respect to
each element. In this context, the duty of care, as explained under
Section 42 of the Civil Law (Wrongs) Act, is covered by the standard
of care taken by a reasonable person who was in possession of all
information or ought to have reasonably such information, at the time
of the incident when the harm occurred.

Breach
of Duty of Care

The
safeguards by which the duty of care must be exercised is laid down
in Section 43 of the Civil Law (Wrongs) Act. The principles for
breach of duty of care is in Wyong
Shire Council v Shirt2as
follows. A breach of duty care involves asking the question of
whether a reasonable man in the defendant’s position would have
foreseen that his conduct involved a risk of injury to the plaintiff
or to a class of persons including the plaintiff. If the answer to
this question is in the affirmative, a reasonable man’s response to
the risk must be determined.

Causation

As
per Section 45, Civil Law (Wrongs) Act, a decision that negligence
caused particular harm comprises the elements of the negligence being
a necessary condition of the happening of the harm and it is
appropriate for the scope of the negligent person’s liability to
extend to the harm so caused. As per March
v E & MH Stramare Pty Ltd3,
In
determining whether a defendant’s breach of duty has caused the
injury for which they are claiming damages, the “But For” test is
applicable. According to the “But for” test, the pertinent
question is “would the injury have occurred but for the wrongful
act?”

Contributory
Negligence

As
per Section 47 of the Civil Law (Wrongs) Act, contributory negligence
may be claimed for reducing the extent of damages. As per Nance
v British Columbia Electric Railway Co4breach
of a duty of care to the other person resulting in the other
suffering damage or injury is actionable negligence. Contrarily, a
failure to ensure safety of one’s own person or property, instead
of breach of duty to another results in contributory negligence.
As per Noall
v Middleton5,
in certain circumstances, a breach of a duty of care to another can
result in contributory negligence. In the case of March
v Stramere6,
the
approach towards assessing contributory negligence was discussed. The
central question in such an approach is regarding the “effective
cause” of the injury, being the one “to which may be variously
ascribed the qualities of reality, predominance, efficiency”. In
other words, the effective cause of the injury needs to be determined
with respect to the relevant party for ascribing liability of
contributory negligence. Another applicable test is that of “last
clear chance” as laid out in the case Alford
v. Magee7where
the plaintiff may recover, despite his negligence, if the defendant
had the last opportunity of avoiding the accident but failed to do so
due to negligence. In such a situation, the “effective cause” of
the injury is ascribed to the Defendant. In this regard, the burden
of proof is on the plaintiff that his injuries are “caused or
materially contributed to” by the defendant’s wrongful conduct8.
Further, the “effective cause” of the relevant damage is a
question of fact and resolved by the application of common sense9.
This is determined by the discussion on causation’s “But for”
test and the defendant’s responsibility for damage.

Apportionment

Apportionment
is when 2 or more persons combine to cause Plaintiff’s harm.
Flowing from the concept of contributory negligence the damages can
reduced if one of the parties is the Plaintiff. Section 102 of the
Civil Law (Wrongs) Act discusses Apportionment. As per 102(1), if the
damage suffered by the claimant is partly because of the claimant’s
failure to take reasonable care (contributory negligence) and partly
because of someone else’s wrong, the claim for damage will be
reduced on account of the claimant’s share in the responsibility of
the damage The High Court in Podrebersek
v Australian Iron & Steel Pty Limited10held
that “The making of an apportionment as between a plaintiff and a
defendant on their respective shares in the responsibility for the
damage involves a comparison both of culpability, that is of the
degree of departure from the standard of care of the reasonable man
and of the relative importance of the acts of the parties in causing
the damage.”

Part
1: Advise regarding Ashton/Bingle as Plaintiff’s prospects of
receiving damages

Relevant
Parties

The
parties in the instant case are Ashton/Bingle as Plaintiff and Ute
Beaut Motor Repairs and Trevor ad Defendants.

Duty
of Care Relationships per Donoghue

A.
Ute Beaut Motor Repairs

Ute
Beaut Motor Repairs has a duty of care with respect to the Plaintiff
as reasonable standard of care is expected of it in performing the
repair work.

B.
Trevor

Trevor
had a duty of care towards the Plaintiff in conducting himself with
reasonable care while driving so as to not collide with the
Plaintiff’s care while driving.

Breach
of Duty of Care

A.
Ute Beaut Motor Repairs

Applying
the test laid down in Wyong,
the
first question that must be assessed determining whether the
Defendant breached his duty of care is whether a reasonable man in
the defendant’s position would have foreseen that his conduct would
have resulted in a risk of injury to the plaintiff. As the repairs of
the car would have directly impacted the safe driving of the
plaintiff, it was foreseeable to the defendant that faulty repair of
the car would put the plaintiff in danger. Thus, the risk being
foreseeable, the answer to the first question is in the affirmative.
Coming to the next determinant of inquiry in Wyong,
the
question of what would a reasonable man in the defendant’s position
do in response to the risk. The defendant would take due care in
ensuring proper repair work. In the instant case, defendant did not
exercise reasonable care in the management and control of the car as
the apprentice Leonie had failed to replace the motor oil seals
properly and the oil in the engines had drained away while Ashton was
returning from Ute Beaut Motor Repairs the previous evening. Thus,
per Wyong,
Defendant
breached the duty of care owed to the Plaintiff.

B.
Trevor

It
had been found via police investigation that although Trevor had been
wearing a seatbelt at the time of the collision, Trevor had blood
alcohol levels over the legal limit. In applying the test laid down
by Wyong,
the
first question that must be assessed is whether a reasonable man in
the defendant’s position would have foreseen that his conduct would
have result in a risk of injury to the plaintiff or to the class of
drivers on the road where he was driving. The answer to such question
would be in the affirmative as being under the influence of alcohol,
his driving would be adversely affected, thereby putting other road
users at risk of his misjudged driving. The second question that must
be asked is with regard to the response to the risk by a reasonable
man. The reasonable man in Trevor’s position would not drive a car
under the influence of alcohol, to avoid driving under the misjudged
capacities due to the influence of alcohol. Since, Trevor in fact
drove the car under the influence of alcohol, he did not conform to
the standard of reasonable man in response to the risk and
accordingly, breached the duty of care per Wyong.

Causation

In
the instant case, the pertinent question would be framed as “would
the injury have occurred but for the faulty repair work done by Ute
Beaut Motors”? As the answer to this question is in the affirmative
as the faulty repair work led to the heat built up due to increased
friction in the car caused by the car’s engine running out of oil
as a direct result of the apprentice at Ute Beaut Motors failing to
replace the motor engine oil seals properly. Thus, causation is
established per March.

Applicable
defenses

Contributory
Negligence11

In
the instant case, the first nature of inquiry is with regard to the
“effective cause of the damage suffered to the Plaintiff’s car,
per March.
As
the Plaintiff was driving a car without a confirmed license he
undertook a risk as regards his own and his car’s safety per Nance.
This
is evident from his having misjudged a function of the car namely,
the red light warning on the dashboard and continuing to drive the
car despite the warning light for pulling off the car on the road as
soon as possible. As plaintiff could not completely pull off the car,
and his engine died completely, he posed a risk to other road users
and breached the duty of car to such users, thereby contributing to
any negligence caused to him, per Noall.
However, in the intervening course of events, the defendant’s
driving under the illegal influence of alcohol had the ‘last clear
chance’ to prevent collision with Ashton’s car as he was under
the duty to not drive a car under the influence of alcohol. Thus, the
damage to the Plaintiff’s car due to Trevor’s collision, would be
ascribed to Trevor as he had the ‘last clear chance’ to avoid the
accident.

With
regard to the fire that spread through the car, the faulty repairs of
Ute Beaut Motors is primarily to blame, as the engine seized due to
the increased friction in the engine. Fire would have been caused
even if the Plaintiff had a confirmed license and could have occurred
if he had pulled the car over at the first instance acting upon the
red warning light. The incompetence of the Plantiff’s was also a
contributing factor in the instant case. However, by the “effective
cause” test in March,
the
primary reason was the faulty repairs of Ute Beaut Motors and the
Plaintiff was driving the car after passing the driver’s test.
Hence, part responsibility with greater liability on Ute Beaut Motors
and the other part responsibility on the Plaintiff would be
applicable.

Apportionment12

The
misjudging of the red warning light by the Plaintiff is of relatively
lesser importance than the failure of the Ubeaut Motors in taking
reasonable care in executing the repairs as the damage caused to the
car was primarily on account of the failure of Ubeaut Motors, as
discussed above. Further, the culpability of Ubeaut Motors in
departing from the standard of car in replacing oil sheets is
confirmed. Similarly, the misjudging of the plaintiff is of 100% less
importance than the failure of Trevor in not driving on the road
under the influence of alcohol which completely impairs judgment on
driving and also makes Trevor culpable for departing from the
required standard of care. Thus, per Podrebersek,
the
damages will be apportioned with a greater share to the defendants
with 100% liability in case of Trevor than to the Plaintiffs.

Advise

Damages
on the car of Ashton due to Trevor’s collision amounting to $1000
would be available to the Plaintiff against Trevor. However, this
will be partly balanced on the amount of damages determined by the
court for the contributory negligence of Ashton. Further, the damages
including the replacement cost of Ashton’s Volkswagon amounting to
$53,000 will be available to the Plaintiff against the Ubeaut Motors.
However, this claim will be balanced on the amount of damages
determined by the court for the contributory negligence of Ashton.

Part
2: Advise regarding Trevor as the plaintiff and his prospects of
recovering damages in negligence

Relevant
Parties

The
relevant parties in the instant case are Trevor (Plaintiff) and
Ashton/Bingle (Defendant).

Duty
of Care Relationships per Donoghue

Ashton
has a duty of care towards Trevor and other road users in conducting
himself with reasonable care while driving.

Breach
of Duty of Care

Applying
the test laid down in Wyong
Shire Council v Shirt, the
first question that must be assessed determining whether the
Defendant breached his duty of care is whether a reasonable man in
the defendant’s position would have foreseen that his conduct would
have resulted in a risk of injury to the plaintiff. As the Defendant
has only a provisional license to drive the car and not a confirmed
license and he had just received such provisional license upon
passing the driver’s test, it was foreseeable that there was a risk
of his improperly driving the car causing danger to other road users.
Answering the second question, a reasonable person would take care to
read the instruction manual carefully and understand all the
functions of the car before driving with abundant caution. The
defendant did not read the instruction manual properly as a result of
which he misjudged a function of the car, namely the red warning
light, resulting in breach of duty of care per Wyong.

Causation

According
to the “But for” test per March,
the pertinent question is “would the injury have occurred but for
the wrongful act?” In the instant case, the pertinent question
would be framed as “Would the injury to Trevor had occurred but for
the parking of Ashton’s car on the road?” As Trevor’s alcohol
level was above the legal limit while driving, his misjudgment in
analyzing the traffic hampered his ability to consider a parked
vehicle on the road. Thus, causation is not established.

Applicable
Defences

Contributory
Negligence

As
Trevor had an alcohol limit above the legal limit, he contributed to
the negligence as his drunken driving contributed to the mishap
resulting in severe damage to his car and his medical injuries per
Nance.
The failure to take care of his own safety as a result of driving the
car was a breach of the duty of care owed to other road users per
Noall.
In
this regard, the “effective cause” of Trevor’s car damage and
medical injuries must be determined per March.
The
“effective cause” was Trevor’s own negligence in driving the
car under the illegal influence of alcohol. Applying the “last
clear chance” test in Alford
as
applicable on Ashton, the same was not available to the Defendant as
the defendant could never have had the opportunity of avoiding the
impact of Trevor’s car driving under the influence of alcohol
resulting in the collision with the Defendant’s car notwithstanding
the negligent acts of the Defendant in driving without a confirmed
license and misjudging a function of the car.

Apportionment

The
fact that Trevor was under the illegal influence of alcohol makes him
fully responsible for all injuries caused to himself due to drunken
driving. The effect of Section 102 in according liability on another
person will not be applied as the whole liability of the damage
suffered by the Plaintiff is onhimself. Per Podrebersek,
the
relative importance of the act of Trevor in driving the car under the
illegal influence of alcohol is more than the negligent act of the
Defendant in driving the car without a confirmed license. In fact the
departure of the standard of care on part of the Plaintiff is
complete and the Plaintiff is fully culpable for the damage to his
car and medical injuries. Thus, Court may apply section 47 of the
Civil Law (Wrongs) Act to decide on 100% reduction of damages due to
the drunken driving of Trevor.

Advise
on Damages

Trevor
being caught unawares by the negligent parking of Ashton’s vehicle
owing to the negligent actions of Ashton in driving the car without a
confirmed license and misjudging a function of the car, would be able
to claim damages from Ashton for such negligence.

A2.

Elements
of Defamation

The
tort of defamation is covered in Chapter 9 of the Civil Law (Wrongs)
Act, 2002. Three elements are to be established for satisfying a
claim for defamation.

Firstly,
there must be a defamatory meaning with respect to the complained
matter, per Parmiter
v Coupland13,
that
is, it can be calculated to bring the Plaintiff into “hatred,
contempt or ridicule” by taking the form of an imputation.

Secondly,
the defamatory imputation must be established as referring to a
particular individual or the matter to be actionable14.
In the case of the omission of plaintiff’s name, reference to the
plaintiff’s characteristics, occupation and address may be used to
bring an action against the defendant. It is a question of fact to
determine whether identification has been established15.

Finally,
it must be proven that the published matter was done by or was the
responsibility of the plaintiff16.

Let
us now apply the three elements of defamation in the responses to the
question specific instructions.

TV
Chef in Junk Food Shame

In
the instant case, the magazine article in question had a defamatory
meaning in the sense that it purported the TV chef to indulge in an
act which was contrary to what the chef portrayed to the general
public about her inclinations thereby inviting ridicule. This
defamatory imputation may be drawn by a reasonable man. Accordingly,
the first element in establishing defamation is satisfied.

Secondly,
the article is with reference to the TV chef notwithstanding that her
name is not mentioned in the article. Identification has been
established as she is recognizable by the photograph in the article.
An ordinary sensible man could easily infer from the photograph along
with the article that the same is with reference to the TV chef.

Thirdly,
the article if published would satisfy the third determinant for
establishing defamation.

Thus,
the publication of the article would lead to defamation.

Exploited
for the sake of fashion

The
defamatory imputation is directed against a corporation. As per
Section 121(1) of the Civil Laws (Wrongs) Act 2002, a corporation
does not have cause of action for defamation in relation to
publication of a defamatory matter about the corporation unless it
was an excluded corporation at the time of publication. As per
Section 121(2) of the Act, a corporation is an excluded corporation
if the objects for which it is formed do not include financial gain
for its members or if it employs fewer than 10 persons and it is not
related to another corporation. In the instant case, Bredlabobe Pty
Ltd is an indigenous designer clothing company, employing 220
indigenous staff in the ACT and founded for the purposes of making
profits for its shareholders. Thus, it is not an excluded
corporation. Accordingly,
per Section 121(1), the elements of defamation cannot be applied to
the company.
Thus,
the proposed article would not result in legal action for defamation
by the company.

World’s
Worst Singer

Editor
may take recourse to statutory defenses to prevent any potential
liability as a result of the published article. One of these defenses
is that of “honest opinion” as laid out under Section 139B(2)(a)
of the Civil Law (Wrongs) Act, as per which it is a defence to the
publication of defamatory matter if the defendant proves that the
matter was an expression of opinion of the defendant’s employee or
agent rather than a statement of fact. With regard to the comments
made by the subscribers, the editor may take the defence under
Section 139C which talks about the defence of Innocent dissemination
to relieve itself of any liability arising out of the comments.
However, in the recent case of Trkulja
v. Google LLC17,
it was held that if a subordinate distributor consciously allows the
dissemination of matter such as comments that he knows to be
defamatory then it no longer qualifies under the defence of ‘innocent
defamation’. Thus,
in the instant case, the editor could take the defence of Section
139B with regard to the article written by Mandy. However, the
defence could be defeated under Section 139B(4)(b) as the said
section states that the defence can be defeated if the defendant did
not believe that the opinion was honestly held by Mandy at the time
of publication as the performance was not that bad and Mandy
deliberately wrote the highly critical review, as Callum had recently
broken up with Mandy’s younger sister. Further, with regard to the
subscribers, since the comments were put to the attention of the
editor by Callum, the defence of honest dissemination under Section
139C would not apply, per Trkulja.

Rotten
Tomatoes goes Live

Trespass
to the person is dependent on the directness of the act interfering
with the plaintiff’s autonomy. The law does not require the wrongdoer
to have intent to trespass per Williams
v Milotin18.
In case the act is unintentional, action may be brought under
‘negligent trespass’. Further, the act must have been directly
interfering with the plaintiff’s autonomy. As in the instant case,
Mandy’s intent to not aim the tomatoes at Callum is not relevant
and the act of throwing the tomato at Callum was directly interfering
Callum’s autonomy, Mandy would be liable under common law negligent
trespass against the person for throwing the tomato at Callum without
the intent to throw the tomato at Callum, per Williams.
Further,
Deatons
Pty Ltd v Flew19,
held
that for an act to be considered within the course of employment, it
must either be authorized or be so connected with an authorized act
that it can be considered a mode, though an improper mode, of
performing it.
In the instant case, since Mandy went in a personal capacity without
the authorization of the magazine, the magazine would not be
vicariously liable for the acts of Mandy.

In
ACN
087 528 774 P/L (formerly Connex Trains Melbourne P/L) v Chetcuti20,
the essential elements of assault were laid out as follows:

1.
There was a threat to harm or cause violence to the Plaintiff by the
Defendant

2.
The threat was made with the intent to scare or threaten the
Plaintiff applying the subjective test of intention

3.
The relevance is with respect to the plaintiff’s perception which
is considered objectively as to whether the defendant intended to go
through with the threat, whether or not the defendant actually
intended to do so.

In
the instant case, Callum by placing his hand on the sword,
threatening to cause violence on Mandy and moving towards Mandy,
satisfied all the three elements as firstly, there was threat to
cause harm to Mandy, secondly, the threat was made with the intention
to scare Mandy and Mandy perceived Callum to go through with that
threat as she was concerned that she would be attacked and fled from
the theatre. Thus, Mandy may bring an action for common law assault
against Callum, per Chetcuti.

1
Donoghue v. Stevenson, [1932] UKHL 100

2
Wyong Shire Council v Shirt, [1980] HCA 12

3
March v E & MH Stramare Pty Ltd, (1991) 171 CLR 506

4
Nance v British Columbia Electric Railway Co, [1951] AC 601

5
Noall v Middleton, [1961] VicRp 43

6
March v Stramare (E and MH) Pty Ltd [1991] HCA 12

7
Alford v Magee (1952) 85 CLR 437

8
Duyvelshaff v. Cathcart and Ritchie Ltd. (1973) 47 ALJR 410

9
March v Stramare (E and MH) Pty Ltd [1991] HCA 12

10
Podrebersek v Australian Iron & Steel Pty Limited, [1985] HCA 34

11
Please refer the Background for explanation of the concept

12
Please refer the background for explanation of the concept

13
Parmiter v Coupland, (1840) 6 M & W 105

14
Sask College of Physicians v CCF Publishers (1965) 51 DLR (2d) 442

15
Knupffer v London Express Newspaper Ltd [1944] UKHL 1, [1944] AC 116
at 122, House of Lords (UK); Law Reform Committee of South Australia
(1982). “69th report: Group Defamation”

16
Gaskin v Retail Credit [1965] SCR 297; Dow Jones v Gutnick (2002)
210 CLR 575

17
Trkulja v. Google LLC, [2018] HCA 25

18
Williams v Milotin, [1957] HCA 83

19
Deatons Pty Ltd v Flew, [1949] HCA 60

20
ACN 087 528 774 P/L (formerly Connex Trains Melbourne P/L) v
Chetcuti, [2008] VSCA 274
Let’s block ads! (Why?)

Do you need any assistance with this question?
Send us your paper details now
We’ll find the best professional writer for you!

 



error: Content is protected !!