LAW1100 10469675

LAW 1100 ASSIGNEMENT

NAME: Sukhpreet Singh Popli

STUDENT NUMBER: 10469675

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ISSUE: Will Kyle be successful in filing a case of negligence against Harry for his broken
ankle?

RULE: “Negligence is omitting to do something that a reasonable person would do or doing

something that a prudent and reasonable person would not do to prevent harm. It is the failure

to exercise reasonable care and skill that results in unreasonable risk of foreseeable

injury.”(Gibson, 2018, pp. 106)

According to Gibson (2018), a plaintiff needs to establish a balance of probabilities against

the defendant that:

 Does he owe a duty of care for the plaintiff?

 Is he breaching the duty of care?

 Has the plaintiff suffered any damage due to that breach? (Gibson, 2018, pp. 108)

Duty of care: Duty of care refers to, a responsibility owed by a defendant towards the

plaintiff and is based on the relationship between them (Gibson, 2018). For establishing a

duty of care, the plaintiff needs to return to the following questions:

 Was the risk reasonably foreseeable that defendant’s conduct could harm the

plaintiff?

 Was there a vulnerable relationship between the defendant and the plaintiff?

 Are there any policy considerations that would prevent defendant being held liable to

the plaintiff? (Gibson, 2018, pp. 109)

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Breach of the Duty of care: A person is not considered negligent or at breach for not taking

precautions against a risk of harm unless the following conditions are satisfied:

 Was the risk foreseeable? - It means was it a risk that any reasonable person in the

place of defendant would have known about?

 Was the risk significant? – this means that was the risk significant enough to cause

any harm or did the risk had higher probabilities of causing damage?

 In the existing circumstances, would the defendant have taken any precautions? –

it means that no harm would occur if suitable precautions were taken? Or does the

action of the defendant create harm? (Gibson, 2018, pp. 123)

Did the plaintiff suffer any damage: To be successful in filing a case, after proving the first

two steps, the plaintiff needs to prove that an actual loss or damage that is recognised by the

law was suffered as a result of the defendant’s breach. (Gibson, 2018)

The decision that the breach caused damage or not depends on two elements:

 Factual causation: that is, if the defendant would have taking precautions, would the

plaintiff have suffered a damage? Did the defendant cause the damage? Is there any

relationship between the defendant’s negligence and damage suffered by the plaintiff?

(Gibson, 2018, pp. 129)

 Scope of liability: it means that, is it appropriate to assign the liability to the

defendant for its actions in causing damage? Or is the defendant’s action remote from

the liability? If the liability is appropriate, should the defendant be held accountable?

This is concerned with whether the harms suffered by plaintiff is the result of

defendant’s negligence.

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Once the plaintiff establishes all of the above listed elements, and the defendant is unable to

please the court during the trial that he did not owe the plaintiff a duty of care or he was at

breach of the duty, or that he was responsible for the damage that occurred, then the

defendant has to establish any defences to reduce their liability. (Gibson, 2018, pp. 133)

The two common defences under common law were:

 Contributory negligence:This defence talks about the apportionment of the guilt

between the defendant and the plaintiff assuming some of the responsibility for self-

injury or damage to their property. The principles are valid in defining whether the

defendant has been negligent also apply in defining whether the plaintiff has been

contributorily negligent. However, the common law rules regarding Contributory

negligence has now been substituted in all states by integration into their civil law

reforms. (Gibson, 2018, pp. 133)

 Voluntary assumption of risk: Until the civil liability reforms, the defendant has to

rely upon voluntary assumption of risk as a defence. The civil liability reforms have

reconfirmed the common law defence but have specified the defence in terms of

‘obvious risk’. The obvious risk refers to the type of risk that would be obvious to any

reasonable person in the place of the plaintiff, such risks have comparatively lower

probability of occurring, and are not physically observable. To defend themselves, the

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defendant must establish that the plaintiff should have taken steps to avoid it. (Gibson,

2018, pp. 134)

Generally, in a tort action, the plaintiff is looking for monetary compensation for the harm

suffered. Degree of damage is concerned with the amount defendant needs to pay as

compensation for the damage suffered by the plaintiff. The precise sum that the defendant

should pay will be dictated by whether they have any defences that they can raise against the

plaintiff. (Gibson, 2018, pp. 137)

APPLICATION:

STEP 1: To establish a duty of care, we have to do the foreseeability test on the current

scenario where Harry is the defendant and Kyle is the plaintiff.

 Reasonable Foreseeability: In this case it is clearly foreseeable that Harry’s actions

could harm Kyle or Mitch as he intentionally setup the trenches and turned off the

lights of the garden in order to teach them a lesson.

 Vulnerable Relationship: There is no direct relationship between Kyle and Harry as

Kyle and Mitch were trespassers and not the guests, so technically Harry does not

owe a duty of care to Kyle. But considering a similar case, Hackshaw vs Shaw [1984]

HCA 84, in which it is stated that “an occupier must take reasonable care to avoid a

foreseeable risk of injury to a visitor, even a trespasser.” (Gibson, 2018, pp. 159), we

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can say that Harry owed a duty of care towards Kyle and Mitch, as they were on his

property.

 Policy Considerations: It can be deciphered from the given facts that there are no

such policies that could prevent Harry not being liable to Kyle for his actions, as there

is nothing stated in the case regarding, no trespassing sign or any other source of

preventing the entrance of the boys onto the premises.

From the legal points above, it can be stated that Harry owes a duty of care to Kyle.

STEP 2: To establish that Harry was at breach of his duty of care, Kyle needs to fulfil the

below criteria:

 Foreseeable Risk: From the given facts, it is crystal clear that the risk of Kyle or

Mitch getting injured was foreseeable, as Harry intentionally setup a trap to teach the

boys a lesson. So, we can say that Harry was completely aware about the risk of

causing harm to the boys.

 Significance of Risk: It can be interpreted from the given facts, that the risk of Kyle

getting injured was significant as he broke his ankle and suffered a serious leg injury

because of falling into the trench which Harry dug intentionally.

 Precautions: In this case, Harry could have taken precautions to avoid the injury as

he could have personally met the boys and explain them about his flowers and trees

getting damaged, instead of building a trap and somewhere deliberately hurting Kyle.

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Since the probability of harm was very high in this case and the harm caused is also very

serious (It is unlikely that Kyle could play soccer again). It can be established that, Harry can

be held liable for breaching his duty of care.

STEP 3: To be successful in filing a case against Harry, further Kyle needs to establish that

he suffered harm or damage, due to Harry’s actions.

 Factual Causation: Kyle broke his ankle and suffered a serious leg injury, which

could result in he being unable to play soccer again, because of Harry’s negligence.

From the above facts it can be established that, if Harry acted smartly and didn’t

build a trap, the risk of Kyle getting injured could have been avoided.

 Scope of Liability: It can be construed from the facts that, Harry can be held

completely liable for his actions and the damage suffered by Kyle, as the harm

suffered by Kyle is solely because of Harry, purposely digging up trenches and

turning off the lights of the property.

After the analysis of the above facts, it can be stated that Harry can be held responsible

for the injury suffered by Kyle.

STEP 4: In order to form a defence, Harry needs to prove that there was a contribution of

Kyle in negligence or the risk of him being injured was obvious.

 Contributory negligence: In this case, as Harry deliberately setup the trap for Kyle

and Mitch. It can be contemplated that Kyle had no contribution in the damage caused

to him because of Harry’s negligence.

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 Voluntary assumption of risk: From the given facts, it can be analysed that Kyle

and Mitch regularly took that route to the bus stop and were familiar with the route,

through which we can assume that the risk was not obvious. However, as Harry

purposely dug the trenches, it is clear that the boys were unaware about the risk and it

was not obvious for them.

STEP 5: Harry’s is fully liable for the damage caused to Kyle and cannot transfer the liability

to anyone except himself. In the given scenario, Kyle can claim the medical expenses spent

on his treatment, as the injury was caused due to Harry’s negligence.

CONCLUSION: After studying the given case, we can say that Harry was negligent for his

actions. It is probable that Kyle can successfully file an action of negligence against Harry.

References
Gibson, A. (2018). Business Law ed. 10. Pearson.