Georgina's legal rights in negligence against Andrew As a plaintiff, Georgina (P) has suffered a legally-recognisable harm, as she broke several of her ribs and suffered from severe internal bleeding. Georgina then need to establish a duty of care owed by Andrew (D) to her. Duty of care In order to establish a duty of care, the question to ask is that is it foreseeable that careless conduct of D will result in an injury against a class of person which P belongs to (Chapman), and that the risk that is not far-fetched or fanciful (Sullivan). Here in this case, D is a lifeguard and P is a swimmer, it is foreseeable that any careless conduct by the lifeguard may result in injury sustained by a swimmer. The careless conduct to be analysed is …show more content…
It would be incongruous for the law to forbid the plaintiff's conduct yet allow recovery in negligence for damages suffered due to an unlawful conduct (Miller). Under section 14G of the Wrongs Act 1958 (Vic), the court must consider whether the plaintiff was engaged in an illegal activity. However, G can argue that her illegality does not prevent the finding of a duty of care owed by A because she did not intentionally enter the water area where corals are present. She was able to do so because A has erected the flags for safe water zone incorrectly. Conclusion - duty of care established On balance, Georgina has a relatively strong case in finding a duty of care owed to her by Andrew. Georgina's specific reliance on the flags and Andrew's control in determining where the flags and swimmers swim point to a duty of care. Additionally, the ability to determine a class of individuals to be owed liability to (swimmers at the specific local of Sandy Beach) points to a duty of care because policy would not likely be an issue. Although Georgina might need to overcome the Andrew's arguments about the coherence of law (Miller) and knowledge, she will most likely succeed in establishing a duty. …show more content…
While the common law cases have no precedential values, they are used as illustrative purposes to argue the alleged breach of Andrew's conduct, in order to allow Georgina's claim against him under the tort of negligence. The probability that a harm would occur if care is not taken is low to medium, as there is a possibility of drowning and injury due to sharp corals and strong undertow, but it is arguably not a common occurrence. Unlike in Dederer, where there has been no previous injury before as a result of diving from the bridge, it is not known by the facts presented here whether past injuries have occurred as a result of swimming in an area of strong
They reasoned that since Barnett didn’t either argue against the dismissal of negligence claim at the time of its dismissal or include the claim in subsequent revisions, she had no support for her claim that the court had erred in dismissing her claim of negligence. The court also ruled that the language of section 3-108(b) of the Tort Immunity Act meant that complete, unconditional immunity was to be offered if supervision was present. As a result of this interpretation, the issue of if the lifeguards had committed willful and wanton misconduct was rendered irrelevant. Since the issues of material fact raised by the appellant weren’t actually issues of material fact, the Supreme Court affirmed the District and Appellate Court’s motion and subsequent affirmation of summary
The respondent (driver) is required to take reasonable care when operating his vehicle to ensure the safety of the appellant. The primary judge highlighted that "content of this duty depends on the circumstances of the case". However, the respondent breached his duty of care by taking his eyes off the road, violating s 5B and s 5C of the Civil Liability Act (NSW) 2002. The respondent nevertheless is not considered negligent as outlined in s5B (1) if he could prevent the outcome of a risk that was not
The movie “A Civil Action” released on January 8, 1999 provides viewers with an extraordinary story of the nightmare that occurred in Woburn Massachusetts in the late 1970’s. The people of this small town at the time had no idea what was going on until there were various cases of Leukemia in small children that ultimately resulted in the early passing of them. The people eventually had gone to find out that the drinking water in this small town was contaminated and there were many women that stepped in to get answers. This movie is a tremendously jaw dropping, eye opening account of a heartbreaking true story incident. There are various elements of negligence in this movie including, duty, legal cause, proximate cause and damages.
In certain circumstances, when plaintiff succeeds in establishing duty of care, breach of duty and resulting damage, defendant may attempt to shelter behind several defences to avoid liability. Two major defences to negligence are Contributory Negligence and Assumption of Risk (Volenti Non Fit Injuria).
The Responsibility for Accident case is about an argument between an employee, called John Schmidt, and his employer. The dispute occurred when John seriously injured his hand when operating a machine in the production shop and neither John nor the company
To succeed in a negligence action, you must prove each of the following. The first element, did George owe the plaintiff a legal duty of care? Legal duty of care paradigm includes that a person acts towards others with attention, prudence, and caution. George owed a duty of care to people by leaving his car in park.
Negligence, as defined in Pearson’s Business Law in Canada, is an unintentional careless act or omission that causes injury to another. Negligence consists of four parts, of which the plaintiff has to prove to be able to have a successful lawsuit and potentially obtain compensation. First there is a duty of care: Who is one responsible for? Secondly there is breach of standard of care: What did the defendant do that was careless? Thirdly there is causation: Did the alleged careless act actually cause the harm? Fourthly there is damage: Did the plaintiff suffer a compensable type of harm as a result of the alleged negligent act? Therefore, the cause of action for Helen Happy’s lawsuit will be negligence, and she will be suing the warden of the Peace River Correctional Centre, attributable to vicarious liability. As well as, there will be a partial defense (shared blame) between the warden and the two employees, Ike Inkster and Melvin Melrose; whom where driving the standard Correction’s van.
Negligence is a concept that was passed from Great Britain to the United States. It arose out of common law, which is made up of court decisions that considered whether a defendant had an obligation to act with greater care. It is conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm and involves a failure to fulfill a duty that causes injury to another. Many torts depend on whether there was intent but negligence does not. Negligence looks to see whether the person had a duty to act with care. It emphasizes the need for people to act reasonably in society. This is important because accidents will happen. Negligence helps the law establish whether these accidents could have been avoided, if there was a breach of duty to act reasonably, and if that breach was the cause of injury to that person. By focusing on the conduct rather than the intent of the defendant, the tort of negligence reflects society’s desire to
On December 12th 2012, round 5.40pm, my client, Mrs J. Smith, was involved in a car accident, which has caused her to be off work since the accident due to a broken back and several major surgeries. The accident was caused by the negligence of your client, Mr J. Sherwood, who was reported, by Mrs Smith, to be driving while ‘texting on his phone’, which led to him to crash into her car, as he did not spot at the red lights. In the previous letter I had sent, I stated what the liability requirement in the tort of negligence were, regarding this case. Now I am going to apply these criteria to the case in question. Firstly, there is evidence that the offender, Mr Sherwood, owed my client a duty of care, which he breached. The offender should have been driving reasonably, as he is an ordinary person doing a task, driving. The first part to check if a duty of care is owed is foreseeability, and it is clear that it was foreseeable that such accident would happen, as driving while using a hand-held phone would be classed as careless or dangerous driving, as the person capacity to drive would be lowered, due to them not being focused on the task, which in this case lead to a c car accident, and serious damage to a person, physical as well as mental, including the car itself.
Before an action for negligence can succeed, it is essential that a "duty of care" exist between the plaintiff and the defendant. In Bourhill v. Young Lord Macmillan had explained the meaning of the term "duty of care". According to him, it is a duty to avoid doing or omitting to do something, which may have as its reasonable and powerful consequences, injury to others. The duty is owed to those to whom such injury may reasonably and probably be anticipated if the duty is not
The duty of care exists in the relevant situation where risk of harm or injury to plaintiffs was ‘reasonably foreseeable’ and the plaintiff was ‘closely and directly affected’ by the defendant’s act. The injuries not only include personal injury or property damage but also the risk of purely economic loss, for example, resulting from negligent misstatements.
This case deals with the defendant David Jones Ltd versus Willis the plaintiff, on the appeal from the supreme court of New South Wales. The case is related to The Sales of Goods Act 1923(C¡¦th). In the case the plaintiff purchased a pair of shoes from the defendant David Jones, a retail distributor of footwear not manufactured by it. On the third occasion of wearing the shoes the heel came off while the plaintiff was walking down the stairs. She fell over and suffered injuries. She sued for damages. The court held that there was a breach of the conditions of merchantable quality and fitness for purpose.
Contributory negligence is a partial legal defence to negligence case due to the Plaintiff failing to take reasonable care for their own safety and in-turn contributed to the accident, thus the damages reduced so the Defendant only has to pay what is fair and reasonable. Pursuant to the Civil Liability and Other Legislation Amendment Act 2010 (Qld) (CLOLA), Section 48 of the CLA now has a presumption of contributory negligence and applies
Duty of care refers to the circumstances and relationships which the law recognizes as giving rise to a legal duty to take care. The first major case in the development of the ‘duty of care test’ was that of Donoghue v Stevenson [1932].
Wyong Shire Council v Shirt10, Shaddock v Parramatta2, Majority of the government authorities found guilty by courts because of negligence and misrepresentation. Paddington council could be found guilty against Ellen. She can claim damages, rewards and compensation in the court. Hedley Byrne v Heller Partners, the tort law case on pure economic loss, resulting from a negligence and misrepresentation. Prior to the decision of the notion that one may owe another a duty of care for statements occurred. Before the judgement Civil Liability Act to be consider as a main act. Considering all the legal cases and applying in the case of Ellen v Paddington city council, it seems to be Paddington city councilwould be held responsible or liable for Ellen economic status and mental injury.