Highlights Such A Breach Of Duty Of Care

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Highlights Such A Breach Of Duty Of Care

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Highlights Such A Breach Of Duty Of Care

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Questions:

Whether Benji Can Bring Legal Action For Negligence Against Jack, Bronco, And Parramatta Storms Rugby League Club, Or Not?
Whether Harry, Zara And Hilary Have Any Rights Under The Law Of Negligence, Or Not?

Answers:
Introducation

Negligence, as defined under the common law, highlights such a breach of duty of care, due to which the party which owed the duty of care is injured, harmed or bears a loss, which is substantial in nature and which was foreseeable in the given circumstances[1]. The Civil Liability Act, 2002[2], under section 5 defines negligence as a failure of exercising the required skill and care. Harm is something which includes an economic loss, damage to property, and a death or personal injury[3].
There are certain key elements which have to be shown to establish a case of negligence. The first one in this regard is the duty of care. The duty of care is raised in such cases where, owing to the activities under by one person, the other person is harmed, and this harm is reasonably foreseeable[4]. Section 5B of the Civil Liability Act, 2002 contains provisions regarding duty of care, where the person cannot be held negligence till it is shown that the risk was not insignificant, was foreseeable and a reasonable person would have undertaken the precautions to evade it[5].
This duty of care is established due to the relationship between two parties and the proximity between them[6]. For instance, in sports, the duty of care arises between the competitors to competitors; the competitors to spectators; coach to competitors; and the like[7]. The case of Ollier v Magnetic Island Country Club[8] saw the golfer being held for a breach of duty of care for hitting the other golfer with tee shot.
The next step is the establishment of the contravention of the owed duty of care. The contravention can be established only when the risk is deemed as foreseeable. So, the person has to know that there are chances, where if the work is not undertaken properly, the other person may get injured[9]. Further, that a prudent individual would have undertaken such precautions. In the matter of Vaughan v Menlove[10], the chances of fire were present, as there was poor ventilation, so a case of negligence was present. Wyong Shire Council v Shirt[11] saw the requirement of the view of a prudent person being taken into account for judging the foreseeability of harm.
The last step relates to showing the loss being suffered by the plaintiff. This loss has to be a direct result of the undertaken negligence by the defendant and the harm has to foreseeable and cannot be too remote. In case a claim of negligence is found to be true, the plaintiff can apply for relief[12]. A “but-for” test was given in Barnett v Chelsea & Kensington Hospital[13], where it was held that the damages are to be awarded only in such cases where the injury or harm would not have taken place, if the negligent act had not been undertaken.
Vicarious Liability is a common law principle which makes the employer liable for the negligent acts undertaken by the employee[14]. In the case of McCracken v Melbourne Storm[15], the club was held responsible for the injuries sustained by one played due to two of its players undertaking an illegal tackle.
In cases of negligence, the defense which can be used by the other party lies in the voluntary assumption of risk. In case it can be shown that the player had voluntarily undertaken the assumption of risk, the case of plaintiff would fail as it is considered that the plaintiff has waived off their rights to complain about any harm or damage[16]. Johnston v Fraxer[17] was a case where the jockey deliberately rode his horse close to other horses which was a breach of the riding rules of the competition. Here, the defendant failed in showing that the plaintiff had given consent to such riding practice.

Application
In the given case study, in order to hold Jack and Bronco liable for negligence, there is a need to show that they owed a duty of care to Benji. As has been stated in the law part, the proximity and the relationship between two parties decide if duty of care is present. And it has also been stated that in sports, the competitors are in such close proximity that they owe a duty of care to each other, as was seen in Ollier v Magnetic Island Country Club. So, Jack and Bronco owed a duty of care to Benji by being his competitors.
The harm was reasonably foreseeable in this case as the Section 10 of the National Rugby League’s Laws of the Game clearly identified this action as restricted owing to the chances of grave harm to the player due to such injury. On the basis of Vaughan v Menlove, here also a risk of harm was present, so a case of negligence can be established. The duty of care was contravened as a prudent person, on the basis of Wyong Shire Council v Shirt, would have undertaken care in not using the illegal tackle in the sport, as there were high chances of a person being injured badly due to this tackle. So, the second requirement is also established.
The harm was such that Benji had to retire from the sports, even when he was at his peak of the career. Based on the “but-test” given in Barnett v Chelsea & Kensington Hospital, the injury would not have occurred if the illegal tackle had not been used. So, owing to the breach of duty of care, resulting in serious harm and foreseeability of loss, Benji can successfully claim damages for the ensuing negligence from Jack and Bronco. The principle of vicarious liability, along with the applicability of case of McCracken v Melbourne Storm, where the facts were similar to the given case study, Parramatta Storms Rugby League Club would be liable for the negligent acts of its players, for being the employer.
A defense which can be cited by the defendants is the voluntary assumption of risk can be raised in this question. However, Benji never agreed to an illegal move being used against him and only took such risk which could have resulted in his injury, which were legal. Hence, on the basis of Johnston v Fraxer, the defense of the defendants would fail.
To conclude, Benji can successfully bring legal action for negligence against Jack, Bronco, and Parramatta Storms Rugby League Club. And if the defendants opt for the defense of voluntary assumption of risk, their defense would fail.
Under the common law, a negligence misrepresentation takes place when a careless representation is made by the defendant, when they did not have any reasonable base for believing it to be true[18]. In Hedley Byrne & Co Ltd v Heller & Partners Ltd[19], this concept was born. The issue arose when the company regarding which the claimant had sought advice from the defendant defaulted and the claimant was held liable for the debts of the company. In this case, it was held that a duty of care was indeed owed by the defendant; however, the exclusion clause helped them in evading their liability. The court laid down the conditions which have to be present to show a negligent misstatement was present. As per this requirement, reliance has to be placed on the skill to give rise to duty of care.
In the given case study, neither Steve, nor George had any base to make a claim that the Sydney real estate market was the best investment around. This is also true since the rumors were present regarding the Federal Capital Gains taxes to be raised. They failed to inform Harry of this information about the possibility in rise of tax rates. Harry, Zara and Hilary made their investments. Applying Hedley Byrne & Co Ltd v Heller & Partners Ltd, reliance was made by the three. So, a case of negligent misstatement is present here. When the three suffered economic loss, owing to the negligent misstatement of Steve and George, Hilary suffered from clinical depression.
Section 5 of the Civil Liability Act, 2002, provides damages for personal injury and economic loss. As the loss here was foreseeable, and directly caused due to negligent misstatement of Steve and George with the presence of reliance on such statement, Harry, Zara and Hilary can apply for economic loss suffered by them. In addition to this, Hilary can also claim for the mental injury suffered by her.

References
[1] Andy Gibson and ‎Douglas Fraser, Business Law (Pearson Higher Education AU, 2013)
[2] Civil Liability Act, 2002 (NSW)
[3] Civil Liability Act 2002, s5
[4] Mark Lunney and ‎Ken Oliphant, Tort Law: Text and Materials (Oxford University Press, 5th ed, 2013)
[5] Civil Liability Act 2002, s5B
[6] Keith Abbott, ‎Norman Pendlebury and Kevin Wardman, Business law (Thompson Learning, 8th ed, 2007)
[7] Chris Davies, Negligence And Risk Management And Sport (2012)
[8] [2004] Aust Tort Reports 81,743
[9] Pamela Stewart and Anita Stuhmcke, Australian Principles of Tort Law (Federation Press, 2009)
[10] (1837) 132 ER 490
[11] (1980) 146 CLR 40
[12] Chris Turner, Unlocking Torts (Routledge, 3rd ed, 2013)
[13] [1969] 1 QB 428
[14] Paula Giliker, Vicarious Liability in Tort: A Comparative Perspective (Cambridge University Press, 2010)
[15] [2005] NSWCA 107
[16] Pauline Sadler and Rob Guthrie, Sports Injuries and the Right to Damages (2001)
[17] (1990) Australian Torts Rep 81-056
[18] Paul Latimer, Australian Business Law 2012 (CCH Australia Limited, 31st ed, 2012)
[19] [1964] AC 465

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