Torts and Negligence Case Study

Sajesh Maharjan

Introduction

Anna, a café owner, went to the tour “Honey Bee Nature Appreciation Tours” operated by Trevor and had injured her knees after stumbling down the hill side. She got treatment in the hospital and fully recovered in a month. Now Anna decides to enforce tort law against Trevor who is not only the operator but also the sole owner of the tour company for negligent act and seek 12 months earnings in lost income and punitive damages. In this regard, Anna is the Plaintiff who has suffered personal injury and Trevor is the Defendant who will have to compensate for damages to the Plaintiff if proven guilty in the court. However, the burden of proof lies with Anna and she must establish following three things on the balance of probabilities that the Defendant owed Plaintiff the duty of care, the Defendant breached their duty of care and the Defendant’s actions have caused the Plaintiff to suffer loss or damage. Trevor has contributory negligence as a part of the defence against Anna.

Duty of Care

The issue is whether the Defendant’s conduct/actions could cause harms/injury to Plaintiff during the time of tour. In other words, Anna is required to prove that the personal injury suffered by her was reasonably foreseeable and was a result of the act(s) or omission(s) of the Trevor in order to establish the duty of care.

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The “neighbor principle” laid out by Lord Atkin in Donoghue v Stevenson [1932] is dominantly used in testing whether the Defendant owed Plaintiff a duty of care. According to that principle, the Defendant is said to owe a duty to take reasonable care of the Plaintiff where the Defendant would have reasonably foreseen the injury to the Plaintiff by the Defendant’s action or carelessness. Evidence of the duty of care is more easily recognized in cases involving established categories such as Parents and their children, employers and their employees, doctor and patients, teachers and students, manufacturers and consumers, etc. These established categories can be easily found in cases such as JD v East 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 people (paying trekkers) once per week on a six hour walk during daylight to in bird watching and similar activities. The established category of a Professional and their customers can be applicable to the case of Trevor and Anna since Trevor provides professional 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.

Breach

After 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 Trevor’s act(s) or omission(s) failed to meet the standard of care required by the law. A Defendant will be held liable for negligent conduct that falls below the legally accepted standard of care for the significantly foreseeable risk of injury. It is stated in the s9 (1) of Civil Liability Act 2003 (QLD) that a person is not 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 person in the similar position and circumstances of the Defendant would have taken precaution.

Section 9 (2) of Civil Liability Act 2003 (QLD)  lists out the factors that are taken into considerations for determining whether a reasonable person would have taken preventive measures against risk of injury which are as follows:

1. the probability of occurrence of injury/harm without precaution
2. the likely seriousness of the injury
3. the burden of taking precautions to avoid the risk of injury
4. the social utility of the activity that cause the risk of injury

These factors are applied in determining the standard of care that a reasonable person would have taken by balancing the first two factors against the second two. The risk of harm/injury is compared against the practicality of taking precautions to avoid the risks.

Before the tour, Trevor advised 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 trips during night time. He also mentions that the participants will be provided with the water and sandwiches during the trip. One of the important facts presented in the case is that he left the tour participants (trekkers) on their own during the break so as to scout for a new location. Moreover, he gets lost in his work and takes much longer that he expected which delayed the return trip and compelled to walk during dark.

A reasonable person in Defendant’s position would not have left the participants unsupervised for such a long time. The facts do not disclose 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 besides sensible shoes and clothing. Similarly, a reasonable person would have scouted new places before the trip. And if the scouting has to be done during the trip, a reasonable person would have taken the note of time and wouldn’t delay the return. The only thing which wasn’t foreseeable for a reasonable person is that someone would change into high heel 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.

Damage

The major concern here is whether the breach of duty by Trevor has caused injury to Anna. Anna has to demonstrate to the court that Trevor’s negligent action was the main cause, though not necessarily the sole cause, of her damage. Section 11(1)(a) of Civil Liability 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 defendant’s negligence. In addition to the cause, Plaintiff is also required to prove that the damage incurred was within the scope of liability. Anna has to show that her injury was a foreseeable consequence of Trevor’s negligence.

The question here is whether Trevor’s 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 Trevor’s 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 bottle 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, Trevor’s negligent act was the cause of Anna’s injury which is supported by the case of Strong v Woolworths Ltd [2012] and Anna’s personal injury was a reasonably foreseeable consequence of Trevor’s negligence as in the case of Hughes v Lord Advocate [1963].

Defence

After 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 contributory negligence and voluntary assumption 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 high 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 Anna’s position would not intake alcoholic beverages during walking tour and would not have changed their runners into high 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 definitely contributed towards her injury.

Voluntary assumption of risk arises in cases of recreational sports/activities which involves obvious and inherent risk. It is stated in the case that the bush tracks used for walking tours of Bushland surrounding the Bunya Mountains are not particularly strenuous. Thus, there is no voluntary assumption of risk in this case.

Remedies

The key concern at this point is whether the damages sought by the Plaintiff recoverable. The issue here is whether Anna’s claim for 12 months lost in income and punitive damages for Trevor’s 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 assault or misconduct. Similarly, it is mentioned in s 54 of CLA 2003 (QLD) that the maximum award a court may make is for an amount equal to the present value 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 equitable 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 recovered fully in a month. Despite full recovery from the injury, Anna closed her café 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 recovered 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 benefit of maximum of 3 months earnings with reduction up to 100% because of her high contributory negligence.

Conclusion

Finally, 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 café and sue Trevor. Anna is likely to be awarded with 1months earnings or even less for lost income because of her high contributory negligence.

References

Legislation:

Civil 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 24

Civil Liability Act2003 (QLD) Section 47

Civil Liability Act2003 (QLD) Section 52

Civil Liability Act2003 (QLD) Section 54

Cases:

Donoghue v Stevenson [1932] AC 562

JD v East Berkshire Community NHS Trust and others [2005] 2 WLR 993

Smoldon v Whitworth [1997]PIQR P133, CA

Strong v Woolworths Ltd [2012] HCA 5

Hughes v Lord Advocate [1963] AC 837

Vaughan v Menlove [1837] 132 ER 490 (CP)