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LAW231 Law Of Torts

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LAW231 Law Of Torts

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LAW231 Law Of Torts

1 Download9 Pages / 2,232 Words

Course Code: LAW231
University: University Of New England

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Country: Australia

Question

Bob, a very important business man in Squid Bay NSW, was about to close a deal on a shopping complex. While driving his mobile rang and he pulled over on the side of the road to take the call. After the call Bob did not check if any cars were approaching in the lane before pulling out onto the road. Bob collided with Laura’s car and she was forced into the opposite lane resulting in Laura’s car hitting Meredith’s car. Meredith suffered severe brain injury. Miraculously Laura was not injured and her car hasn’t been damaged. However, the evidence indicates that Laura was going well above the speed limit and if she had been driving within the speed limit she would have had time to react and avoid the collision with Bob. Meredith is not negligent and therefore cannot be sued. Bob was severely injured.
Later that day Kevin hosted a small party at his house. Kevin had activities, such as egg and spoon races, three legged races and apple bobbing. Kevin set up the apple bobbing in an inflatable paddling pool. Apple bobbing involves players catching apples bobbing in water with only their teeth. Bob’s 14- year-old son Craig attended the party and due to the sweltering heat was very hot and needed to cool off with a swim. Seeing the inflatable pool Craig took a run up and dived into the paddling pool. Kevin had carefully measured the level of the water in the pool to one metre. There was no signage indicating the depth of the pool. Craig hit his head and as a result suffered serious injuries.
Advise the parties of their rights and liabilities in tort. 
All events took place in New South Wales in November 2018.

Answer
Introduction
Tort law comprises common law as well as legislation. Thus, tort can be referred as a civil wrong other than breach of contract. In other words it can be referred as  violation of responsibility, potentially owed to the whole world, obliged by law. Further, it exercises to prevent an individual’s interest in his or her physical safety, tangible property, financial resources or status. Intrusion with these interests can be restructured through an action for reimbursement, generally in the form of unliquidated damages. Moreover, the key objective of tort law is to reinstate the harmed individual to the position in which he or she was prior to the occurrence of torts.  Present report emphasizes on right and duties to be applied in case of tort relating to negligence. In order to provide appropriate explanation case studies have been referred so that situation can be related easily.
Facts of the Case
In the present case Bob, a popular businessman in Squid Bay NSW was about to end the deal on a shopping complex. When he was driving the car,and during that time his phone rang and to receive the call he parks his car to the side of the road. Subsequent to talking on the phone he had not checked the lane before going on the road. Due to the same, his car collided with Laura’s car,and she was forced into the opposite lane leading to a collision of Laura’s car with Meredith car. Furthermore, Meredith suffers the injury of the brain,but the Laura was safe as she was not injured by accident. A severe injury was suffered by Bob also. Moreover, the speed at which Laura was driving the car is more than a normal limit. Later on,the small party was organised by Kevin in-house. He had planned some games like egg and spoon race, three-legged races along with apple bobbing. The son of Bob, Craig, was also in the party and because of sweltering heat, he thinks to swim in the paddling pool.One metre water was measured by Kevin for the game. Since no mark was put by Kevin regarding the depth of the pool, the head of Craig was hit die to which he suffered severe injury.
Provision and Regulation Relating to the Case
Tort Law and Policy
The term tort is of Anglo-French origin, implies wrongful or unlawful act. It is a law of torts that decides when a person has performed a civil wrong. Further, the law of torts also deals with the other parts of civil liability like contracts, property law. In short it can be stated that tort law protects people from wrongful act to other and provide a right to claimant to sue against same.Moreover, it is believed that the existing gaps will be filled by torts law through establishing new torts as per gaps crammed in contracts law in legislation for when there is a gap.
Further, there are some conditions under which only conduct will be considered as tort that is it should be serious and illegal.Those conditions are, the conduct must be injurious to another individual.It should include an official response that is perceived as doing justice among parties.Apart from this, the conduct should not fit more contentedly in another group of common law or reasonable wrongdoing.
Negligent Tort
A negligent tort can be defined as a tort conducted by apersonwho fails to serve as a rational individual to someone to whom he or she owes,as obliged by law under situations. They are not intentional,and it justleads to an injury due to the violation of duty. Some instances of negligent torts are car accidents, slip and fall accident,mismanagement cases of medical.
Furthermore, constituents of negligent torts are,there should be a violation of the duty to a recognized standard of care.Violation of that duty was the real cause and the contiguous cause of the injury to the claimant. Moreover, pretender was injured too, which treatment is provided by law.
Contributory Carelessness
With accordance to subsection 1 of section 102 of law of negligence and limitation of liability act 2008 when a damage is suffered by an individual as the result of his own mistake and part of the mistake of another individual, a claim regarding that damage is not accountable to be overwhelmed by reason of the fault of entity suffering the damage, but the damages recoverable regarding the same should be decreased to an extent as the court considers just and reasonable having regard to plaintiff share for damage.
Section 2 does not operate to overwhelm any defence taking place in a contract. Further, it has been specified that court must determine and record the total damages which separately from any limitation of liability specified by enactment or any limitation of the jurisdiction of the court, should have been recoverable when the plaintiff bad net been at fault.
Proclaims by third parties
According to section104 of the law of negligence and limitation of liability act 2008:

An individual that is harmed and he suffers from damagesdue topartlyof his own fault and partly from the mistake of another person.
Through reason of damage of injured individual third party bears damages whether by way of loss of society or services of an injured person or else

The mistake of the harmed individual should, in a claim through the third party for the damage which he had experienced, be consideredin section 102 for the objective of decreasing damages recoverable by the third person since if the mistake of the injured entity were the fault of the third person.
Applicability
The same provisions will be applied in the present case as the accident has taken place due to the partly mistake of Bob and partly the fault of Laura. Due to the fault of both the individuals the accident was suffered by Meredith as the core of negligence exist in a significant manner. The landmark case of Caparo Industries Plc v Dickman [1990] of England, establish a threefold test for a duty of care. It was concluded in a specified case that harm should be rationally foreseeable, the relationship of immediacy among the claimant and defendant should be there and it should be reasonable, just and fair to oblige the liability. Therefore, these serve as a code of conduct for courts in introducing a duty of care, much of principle is still at the judgment of judges. In the presentcase, it could be assessed that harm is foreseeably reasonable in both the case as if Bob had checked whether any other car is approaching or not and even if Laura was driving in limited speed than it was possible that no collision would have occurred with Bob’s car. There is a relation between claimant and defendant,i.e. the collision of a car and severe injury to Meredith. Lastly, it is fair to impose liability by Meredith as a huge health loss was borne due to the negligence of Bob and Laura.Moreover, in another case, as no mark was placed by Kevin relating to the depth of water, the head of Craig struck when he dived in the pool to swim. Since it is the responsibility of Kevin to be careful as the children were also there at the party but he has not paidattention to the accident has occurred.  The mark or everyone could be warned not to go near the pool because the game was setup there would be exercised by Kevin. Thus, as the responsibilities are not compiled in an appropriate manner due to which Meredith and Craig have experienced an accident, therefore, the fair and reasonable compensation has to be provided to them.
The decision of case law of Lee v Carlton Crest Hotel (Sydney) Pty Ltd [2014] can be applied in present case in which it was considerable amount was provided to the claimant against the negligent act.  In the specifiedcase, a complete psychological collapse occurred after witnessing the accident. Thus, in the present case also the loss can be claimed by Bob after witnessing the loss of his son due to the accident.
Conclusion
It can be concluded from the above discussion that irresponsible behaviour has been presented by Bob and Laura. Since it is the duty of Bob to check that if any car is coming prior to pulling out onto the road.  In addition to this, every person should drive their vehicles on normal speed,but in the presentcase, Laura was driving at a very high speed due to which Meredith suffers a brain injury. Thus the following rights are available to Meredith and Craig:
Right to sue
As a tort is a legal wrong action in which is committed by an individual against another person or organization for which usually remedial action is taken for the damages. Thus, right to sue is provided to the claimant but he requires proving that tort is justified.
Right to claim an economic loss for damages
Damages are referred to as the monetary value of the harm done based on the principle of restitution in integrum. The objective related with the same is that it isconnected with quantification of loss relating to the degree of breach of care. As once the breach of duty is proven, it is necessary to compensate the victim for loss. As in the presentcase, it can be assessed that Meredith is required proving the negligence behaviour of Bob and Laura and further they will be required to pay off for the loss relating to severe brain injury. In another case, Craig will require to prove that Kevin did not makean appropriate arrangement for the safety of kids during the games and due to same Craig suffered serious injuries. Thus he is liable to pay off for the damages.
Liability of Bob and Kevin:
Liability to pay Compensation
Compensation is the fundamental jurisdiction for tortuous liability. It is considered as fair and reasonable that an individual who has caused an injury must provide the compensation for rectification of damaged done by him. Thus, the main objective behind giving the compensation is to place the person who is injured in the same position they would have been in but for the wrongdoing which is conducted. Moreover, as per the study of Erbacher (2017), compensation most evidentlyimplements to the tort of negligence and evaluation of damages for personal harm. The concept of mistake and justice are bound in the assessment of reimbursement.
Further, mistake covered in case of Perre v Apand (1999) specifies that fault is the root cause of the law of negligence. Thus, Mc Hugh J asserts that negligence at common law is yet a fault-based system. It would offence present society standards to oblige liability on a defendant for acts or faults which he or she could not detain would damage the interest of another. Furthermore, the concept of mistake is difficult, does not comprise deliberated conducts but involves negligence. Additionally, in the case of Perre v Apand, Mc Hugh defines the tort law as an instrument of corrective justice, implying that the law of tortsobliges those who have injured others to correct their conduct. Thus, compensation should be provided to Craig and Meredith by Bob, Laura and Kevin as the accident has occurred due to the negligence of them.
Liability for compensatory damages
Damages are specified as a reward paid to an individual as a loss or injury. These are classified as compensatory as well as punitive damages. Compensatory damages comprise loss of property, general damages, medical expenses etc. Thus, in present case Kevin is liable for medical expenses of Craig, on the contrary, Bob and Laura are responsible for damages of severe brain injury of Meredith’s as well as damages of the car.
References
Bermingham, Vera, and Carol Brennan. Tort law directions. (Oxford University Press, 2018).
Best, Arthur, David W. Barnes, and Nicholas Kahn-Fogel. Basic tort law: cases, statutes, and problems. (Wolters Kluwer Law & Business, 2018).
Epstein, Richard A., and Catherine M. Sharkey. Cases and materials on torts. (Wolters Kluwer Law & Business, 2016).
Erbacher, Sharon. Negligence and illegality. (Bloomsbury Publishing, 2017).
Field, Iain D. “Contributory Negligence and the Rule of Avoidable Losses.” Oxford Journal of Legal Studies (2018).
Goldberg, John CP, Anthony J. Sebok, and Benjamin C. Zipursky. Tort Law: Responsibilities and Redress. (Wolters Kluwer law & business, 2016).
Grant, Genevieve M. “Judging gender in tort thresholds.” Griffith Law Review 25, no. 1 (2016): 104-128.
Graziano, Thomas Kadner. Comparative Tort Law: Cases, Materials, and Exercises. (Routledge, 2018).
Levine, Lawrence C., Dominick Vetri, Joan Vogel, and Ibrahim J. Gassama. Tort law and practice. (Carolina Academic Press, 2016).
Luntz, Harold, David Hambly, Kylie Burns, Joachim Dietrich, Neil Foster, Genevieve Grant, and Sirko Harder. Torts: cases and commentary. (LexisNexis Butterworths, 2017).
Mackie, Tom. “Proving liability for highly and fully automated vehicle accidents in Australia.” Computer Law & Security Review 34, no. 6 (2018): 1314-1332.
Mendelson, Danuta. The new law of torts. (Oxford University Press, 2014).
Mendelson, George, and DanutaMendelson. “Methods of Ascertainment of Personal Damage in Australia.” In Personal Injury and Damage Ascertainment under Civil Law, pp. 467-504. Springer, Cham, 2016.
Simons, Kenneth W. “Victim Fault and Victim Strict Responsibility in Anglo-American Tort Law.” Journal of Tort Law 8, no. 1-2 (2017): 29-66.
Stickley, Amanda P. Australian torts law. (LexisNexis Butterworths, 2016).

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