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LAW231 Torts Law

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LAW231 Torts Law

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LAW231 Torts Law

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Course Code: LAW231
University: University Of New England

MyAssignmentHelp.com is not sponsored or endorsed by this college or university

Country: Australia

Questions:
Janelle lives in Farmidale, New South Wales. On an overcast night in February 2017, Janelle was driving to Brian Bay, a town 360 km distance from Farmidale, for a birthday party. Janelle was so excited about the party that she became distracted and drove straight through a stop sign. Janelle’s car collided with Peter’s car, injuring Peter. Following the accident, Peter’s legs had to be amputated to save his life. He developed severe depression, anxiety, and agoraphobia (fear of public places / open spaces). He is no longer able to work as a professional stand-up comedian and as he is unable to leave his apartment, he cannot find alternative employment.
Several months after these events, Sully, who is Janelle’s sister, hosted a pool party for her son Trevor’s 16th birthday. The party was held at Sully’s house. There was alcohol at the party, which was brought by the individual party goers. James, who was one of Trevor’s mates (16 years old) had several alcoholic drinks and then decided to dive into the pool. Unfortunately, James dived into the shallow end of the pool (there was no signage indicating the depth of thepool) and as result he sustained serious spinal injuries. Doctors state that it is likely he will be in a wheelchair for the rest of his life.
Trevor’s younger sister, Emma, who just turned 12, was also injured at Trevor’s birthday party. Even though Emma was not drinking alcohol, she slipped and fell and lacerated her leg on one of the many broken beer bottles that were lying around the pool area. Sully thought about picking up the beer bottles on many occasions that night but she was distracted by the birthday festivities.
Please advise the parties of their rights and liabilities in tort.
All events took place in New South Wales in 2017.
Please do not discuss the Motor Vehicle Accidents Act 1988 (NSW), the Motor Accidents
Compensation Act 1999 (NSW), Motor Accidents (Lifetime Care and Support) Act 2006, or the
Motor Accidents Compensation Amendment Act 2006 (NSW). DO NOT discuss criminal law. 
Answers:

1.Peter v Janelle 
As per the facts, Janelle was driving for a party and was so excited that she became distracted and drove straight through a stop sign. Janelle’s car collided with Peter’s car, injuring Peter.
Damage 
Peter has suffered physical injuries and his legs had to be amputated. He developed severe depression, anxiety, and agoraphobia. He is no longer able to work or find alternative employment  and is unable to leave his apartment.
The law of negligence signifies that whenever the defendant has indulged himself in a wrongful act which he must avoid, then, the plaintiff has a legal right to bring an action against the defendant and claim the loss that is suffered by him. In Donoghue v Stevenson the law of negligence was established and it was held by Lord Atkin that the consumer has legal right to bring an action of negligence against the manufactures if any defective product is supplied by such manufacturer and the consumer suffers losses. In order to hold any defendant negligent, there are few essential which must be established by the defendant. The same are duty of care, breach and damages.
Duty
The defendant is under a legal duty to carry out his actions in such a manner so that no plaintiff suffers any kind of injury from him. In driving cases, the drivers are under the obligation to driver with utmost care.
In the given case, Janelle is also under a duty to drive in such a manner provided no injury is caused to Peter.
But, the duty is only imposed on Janelle provided:
Neighborhood principle
Peter is the neighbor of Janelle. The duty of care is imposed on the defendant, if, the plaintiff shares proximate relationship, that is, the acts of the defendant falls directly upon the plaintiff. There must be closeness amid the parties. In the given case, Janelle was driving a vehicle and in Gifford v Strang Patrick Stevedoring Pty Ltd it was held that every driver is in proximate relationship with the persons who are co-passengers or pedestrians. The driver must drive in such manner so that no injury is caused to them.
Likewise, Janelle should drive in such a manner so that no loss is caused to Peter because Peter is the pedestrian and any wrongful action of Janelle will directly fall upon Peter.
Reasonable forseeability 
The defendant owns duty against those plaintiffs who are reasonably foreseeable.
Janelle was driving the car and it is reasonably foreseeable that people would be walking on the road. Thus, the presence of Peter is reasonably predictable by Janelle.
The compliance of these two ingredients imposes a duty of care upon Janelle and he must drive carefully so that no loss is caused to Peter.
Breach 
Once the duty of care is imposed upon the defendant, it is necessary that the duty is violated to hold the defendant negligent. The duty is violated when the level of care that is expected from the defendant is not met and the non-compliance of standard has resulted in causing injury to the defendant.
Thus, in order to analyze whether the duty is breached the level of standard must be analyzed.
Standard
The defendant must carry out his acts by complying with the reasonable standard of care. The level of care varies from situation to situation. For instance, the level of care that is required towards a child is not similar with what is required against an adult. In driving cases, the level of care is very high because the injury is inevitable if wrongful driving is carried out. 
In the given case, Janelle was driving the car and drove straight through a stop sign. Thus, she totally neglected his duty to take care while driving and collided with Peter. Thus, the level of care that is expected from her was not met resulting in breach of duty of care.  
But, Janelle is only answerable to the losses of Peter provided the damages that are sustained by Peter are reasonably foreseeable and there is presence of causation.
Causation and Scope of Liability for Consequences 
Causation
The defendant is answerable to the losses of the plaintiff only when the loss that is caused is directly because of the acts of the defendant. There must be direct causation amid the act of the defendant and the loss of the plaintiff.
In the given case, the loss that is caused to Peter is because of the acts of Janelle directly. Thus, there is presence of causation.
Remoteness of damages 
Also, the loss that is caused to the plaintiff should be reasonably foreseeable by the defendant. The loss should not be of such a nature which is too remote to predict.
In the given case, Janelle is aware that any wrongful driving by her will surely cause some harm to the pedestrian.  Thus, the loss is not remote and can be reasonably anticipated by her.
Thus, all the above elements prove that the acts of Janelle are negligent in nature and have caused loss to peter.
But, can Janelle rely on any of the defense that is available in the law of negligence.
Defences 
In the law of negligence there are two basic defenses that are available.

When the plaintiff voluntary assumes the risk then the defendant is not negligent under volenti non-it injuria.
When the plaintiff and defendant have both contributed to the loss of the plaintiff then the defendant is proportionality liable to the loss under the defense of contributory negligence.

But, Janelle cannot take any of the defenses because Peter was not at all negligent in his actions nor has voluntary assume the risk. Rather, Janelle has missed the warning sign that was placed and negligently drives causing harm to Peter.
So, Peter has full right to sue Janelle under the law of negligence.
2.James v Sully  
As per the facts, Sully (sister of Janelle) hosted a pool party at her house for Trevor (son of Sully and 16 years old).  The party goers brought their own alcohol. James (16 years old) was drunk and decided to dive into the pool. He dived into the shallow side and sustains injuries.
Damage 
James sustains serious injuries when he dived into the shallow pool and he is likely to be in a wheelchair for the rest of his life.
James can sue Sully only when he can establish that Sully is under a duty of care which is breached by her causing the injuries that are sustain by him.
Duty
Sully has organized a party at her house.
As per Shaw v Thomas every occupier of the premises is under a legal duty to provide safe premises to the invitees. 
The party was organized at the house of Sully and thus it is the duty of Sully to provide safe premises to all the invitees. But, the duty of care is established provided there is presence of reasonably forseeability and neighborhood principle.
Neighborhood principle
James is the neighbor of Sully because any actions of Sully in her house will directly fall upon James as he is in proximate relationship with Sully. There is close relationship amid the two and thus there is presence of neighborhood principle.
Reasonable forseeability 
Sully can reasonably foreseeable that any wrongful acts by her will directly cause harm to her invitees including James. Thus there is presence of reasonable forseeability.
So, Sully has a duty of care against James.
Breach 
But, the duty that is imposed upon Sully was not adequately catered by her because she lack in providing a safe premises to James. The duty as breached because the level of standard that is required to be met by her fall short of her actions.
Standard
Whenever any person invites any plaintiff upon his premises then he must make sure that the premises is safe and will not cause any reasonably foreseeable harm to the invitee.
Sully is aware that the party was a pool party and thus the invitees will be drunk and will dive in the pool. But, she fails to comply with any kind of warning sign near the pool.
Also, the standard of care increase because James was just 16 years old and the level of care is greater in case of a child a compared with an adult.  
Thus the level of care that is expected is not up to the mark and the standard of care is not maintained.
Thus, there is clear breach of duty of care on the part of Sully.
Causation and Scope of Liability for Consequences 
This breach of duty has resulted in causing serious injuries to James. But, the damages are considered to be because of the negligent acts of Sully provided.
Causation
The pool party was organized by Sully but she has not placed any warning or direction sign near the pool. Thus, it is because of the acts of Sully that injury is caused to James. Thus, there is presence of causation.
Remoteness of damages 
The loss that is caused to James was reasonably foreseeable by Sully because in absence of any warning sign there are clear chances that some person might suffer injuries. Thus, the damages that are caused to peter are not remote.
Thus, Sully is in breach of her duty of care resulting in causing harm to James.
Defences 
Sully cannot take any defense in order to protect her interest because the acts of James were not voluntary nor he has contributed to his own loss. He is not aware that the pool was shallow.
Thus, Sully cannot rely on any defense and Peter can Sully under the law of negligence.
3.Emma v Sully  
As per the fact, Emma (sister of Trevor and 12 years old) was not drinking alcohol but she slipped and fell and lacerated her leg on one of the many broken beer bottles that were lying around the pool area. Sully thought about picking up the beer bottles but she was distracted by the birthday festivities.
Damage 
Because of the broken bottles that were lying around the pool area, Emma slipped and fell and lacerated her leg.
Duty
The pool party was organized by Sully and as per Shaw v Thomas she as an occupier has a legal duty to provide safe premises to Emma as she is an invitee at the premises of Sully.
Neighborhood principle
The duty of care is established against Sully because Sully and Emma are sharing proximate relationship because Emma is the neighbor of Sully. Any actions of Sully will directly fall upon Emma and thus Sully must act with all due care so that no injury is caused to Emma.
Reasonable forseeability 
The duty is against those plaintiffs who are reasonably forseeability Sully. Since Emma was part of the pool party thus, Sully can reasonably foresee the presence of Emma and thus she owns a duty of care against Emma.
Breach 
Sully own a duty of care against Emma but this duty of care is not catered by Sully because even if she is aware that there are broken beer bottles near the pool but she neglected in picking them up and which has resulted in causing harm to Emma.
But, the duty is only considered to be violated provided the level of standard that is required is not met.
Standard
Sully is aware that there are a child at the party thus the level of care that is expected from Sully is very high. But, this level of care is not met by her because she negligence in picking up the bottle. So, the level of standard is not met by her causing harm to Emma.
Causation and Scope of Liability for Consequences 
The duty of care is not met by Sully causing harm to Emma, but, Sully is considered to be negligent provided:
Causation
The loss that is caused to Emma is because of the actions of Sully. If sully would have picked up the bottels, then, the injury might not have taken place. Thus, there is clear link amid the acts of Sully and the injury of Emma. This, there is presence of causation.
Remoteness of damages 
The loss that is caused to Emma is not remote and is easily predictable by Sully. Thus, the damage is reasonably foreseeable.
Defences 
Sully cannot rely on any of the defense because the loss that is caused to Emma is not caused to her voluntarily nor she contributed to her won loss. Also, there were no warning sins which are placed by Sully which should have excluded her liability.
Thus, Sully is liable to the losses of Emma and Emma must sue Sully under the law of negligence.
References
Books/Articles/Journals
Eburn, Michael, ‘Duty of Care'(2017)  < https://law.anu.edu.au/sites/all/files/users/u4810180/duty.pdf>.
Hubbard Samantha, ‘Nature of duty of care owed by occupiers of domestic premises to ten year old boy who fell whilst descending from top bunk of bed – s 5B Civil Liability Act’  (2010).
Katter, Norman,’Who then in law is my neighbour?” – Reverting to First Principles in the High Court of Australia’ (2004) The Tort Law Review 12(2):pp. 85-97.
Souper M, ‘Sixthlawform, (2008), cases, tort, negligence –breach of duty of care.
Case laws
Annetts v Australian Stations Pty Limited (2002) 76 ALJR 1348.
Benton v Tea Tree Plaza Nominees Pty Ltd [1995] SASC 5144.
Chapman v Hearse (1961) 106 CLR 112
Donoghue (Pauper) v. Stevenson (1932).
Graham Barclay Oysters Pty Ltd v Ryan (2002) 77 ALJR 183.
Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 77 ALJR 1205.
Jackson v McDonald’s Australia [2014] NSWCA 162.
Manley –v- Alexander [2005] HCA 79.
Margereson & Hancock v JW Roberts Ltd (1996) CA.
Mansfield v Weetabix (1997) CA.
Smith v Leech Brain & Co [1962] 2 QB 405.
Shaw v Thomas [2010] NSWCA 169
Wyong Shire Council v Shirt (1979), 29 Aust LR 217. 
Wilsher v Essex Area Health Authority [1988] AC 1074.
Wilbe v City of Munno Para [2002] SASC 425.
Young v Kent County Council [2005] EWHC 1342 (QB)
Online Material
Dr Moles, N Robert, ‘Tort and law lectures'(2017)  < https://netk.net.au/Tort/Case1.asp>.
Sydney law Review, ‘Remoteness of Damage’ < https://www.austlii.edu.au/au/journals/SydLawRw/1963/12.pdf>.

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