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Law Understand The Tort Of Negligence

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Law Understand The Tort Of Negligence

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Discuss about the Law Understand the Tort of Negligence.

In the present case, the main issue is whether Skye can seek damages from Charlene under tort of negligence, and for resolving this issue it is necessary to understand the tort of negligence.
Negligence- negligence is considered as a situation, in which one person owns duty of care towards another person and fails to do something or not do something which any reasonable person would do or not do in similar situation and such conduct of person cause loss or injury to any other person. If person sues another person under tort of negligence, then such person seeks financial compensation from another person in lieu of damages or loss suffered by him. In general, injured person wants to be in the position that he would have been if negligence not occurred, and there are number of situations in which negligence may be alleged such as car accidents in which property of the person is damaged or he suffered injury. It is difficult to determine negligence on the part of defendant, and for this purpose Court consider four questions. It must be noted that it is necessary that all four questions are satisfied for establishing the liability under negligence, and if even one question is not satisfied then Court will not held defendant liable under tort of negligence[1]:

Whether defendant owns any duty of care towards the plaintiff?
Whether such duty of care is breached by the defendant?
Whether any injury of damage suffered by plaintiff?
Whether such injury or damage caused because breach of duty of care by defendant?

Duty of care- it is considered as a legal obligation under which person is liable to avoid causing harm in those situations in which harm is foreseeable if care is not taken. For the existence of duty of care, it is necessary that close relationship must exist between the parties. This can be understood through example such as relationship exists between the doctors and patients and between the road users and drivers.
Breach of duty of care- for the purpose of determining breach of duty, Court will consider the standard of duty of care that is expected in those situations. Standard of care is determined by Court by considering the actions of reasonable person in similar circumstances. If in those situations actions of defendant does not meet the standard of care or his actions fall below the standard of care then it will considered that defendant breach duty of care. The most common examples for these situations are happen in everyday activities such as driving, as all the users of road are expected to behave in reasonable manner, and there are number of examples which state the situations in which drivers fail to meet standard of care[2]:

When drivers driving after consuming alcohol, and when driver break down the rules related to traffic.

It must be noted that there are number of cases in which it is easy to determine the cause of action from which person suffered injury, but in some cases situations are complex because more than one cause of action is included in these cases.
Contributory negligence- contributory negligence occurred in those situations when injured person itself contributed in the negligence which cause loss or injury, and in case plaintiff has failed to take steps for their own safety then it will be considered as case of contributory negligence. In this situation, damages claimed by plaintiff have been reduced up to that extent that plaintiff contributed to the loss[3]. Some examples of contributory negligence are stated below:

Slip or fall occurring because injured person fails to take reasonable steps for ensuring their safety in those situations in which any reasonable person would take those steps.
Person engaged in any such activity which involves high risk, such as driving car on pier.
In case passenger or driver fails to wear seat belts, and driver turning right without giving any indication to the subsequent car.

Usually, slipping and falling of people is very common occurrence on both residential and commercial properties. In case slip or fall occurred then situation is very different if injured person makes claim against the owner of the property for the purpose of claiming damages under tort of negligence or for breaching the various safety statutes. Causes of these falls or slips are very coon such as poor floor services, environment conditions, contamination, footwear, and in some cases negligence of injured person.
For reducing the slips and trips, various measures and systems are implemented by the owners of property and their managing agents such as put warning signs and system of regular inspection, and it might be possible that incident occurred because of the action of plaintiff and his actions contributed in the accident[4].
 In case Court founds, that owner or occupier of the premises is negligent for the accident then in such cases damages can be claimed from defendant, but if Court also founds that plaintiff contributed in the negligence then damages may be reduced up to the contribution of plaintiff. However, plaintiff is liable under the common as well as civil law, if it was found by the Court that accident causes because of the failure of plaintiff to take reasonable care for his or her own safety[5]. There are number of cases which can used to understand the concept of contributory negligence.
In case law Jackson v McDonald’s Australia Ltd [2014] NSWCA 162[6], Court stated that plaintiff contributed up to 70% in the negligence by walking on the wet floor on which warning sign is posted, and he did not hold any handrails because of which he slipped and suffer injury. In this case, court further stated that McDonalds bear 30% liability because of his failure to clean the wet floor on immediate basis.
In case Fitzsimmons v Coles Supermarkets [2013] NSWCA 273[7], court stated that plaintiff bears 50% liability for contributed negligence for failing to check the wet floor on which sign is positioned around the puddle of water and because of this plaintiff slipped. Court further stated that Coles bear 50% liability because sign placed by them were low lying, and outside the normal field of vision of customers, and that sign is failed to inform the customers about the wet floor.
In case law Hamilton v Duncan [2010] NSWDC 90[8], Court stated that plaintiff is 30% negligent for not take reasonable care related to hole of which he is aware and in which he tripped and even warned another person about the presence of hole just minutes ago the accident. Court further stated that 70% liability is occurs by occupiers because they have been fails to inspect the area and fill the hole on time.
In case law Mist Pty Limited v Palmer [2012] NSWCA 239[9], Court stated that plaintiff is not contributed negligent for her injuries because as per expert it is not possible to see the liquid present at stairs on the glass steps, and plaintiff notice the liquid at that time when her foot about to touch the step.
In this case, yoga classes were conducted by Charlene at the Melany School of Arts building, and floor of this building is properly of hardwood. In this hall Charlene attend very limited number of students because hall is very small, and she has found from her last experience that it is difficult to manage large number of students such as 35 students in that hall. After yoga sessions Charlene provide hot tea and towels to their students, and the stalls of tea and towel is established in the same hall that is adjacent to the exercise floor. Charlene provides socks to students because she recognized that floor is too slippery and gives strict instructions to students to wear the socks.
Because of some reasons Charlene arrange class of 45 students and in this one of the student of Charlene named as Skye joined the class little late and shocked to see so much students, she consumed three glass of wine and found place near the table where tea and towels are kept. Charlene also provide socks to Skye but she decided not to wear the socks because of which she slipped on the floor and toppling the urn and steamer onto her body.  The hot tea, towels and appliances severely scolded her skin. 
In this case, both Charlene and Skye contributed in the negligence because both fail to takecare reasonable steps when risk is foreseeable such as Charlene fails to manage small number of students in class as he know that large number of students is not managed in the class and Skye does not wear the socks even after the strict instructions of Charlene. Therefore, in this case Skye can sue Charlene for damages but damages reduced up to the extent of Skye own negligence.
Law vision. Law of Torts. Available at: https://www.lawvision.com.au/uploads/PDFs/Tort%20Law%20.pdf. Accessed on 22nd May 2017.
Legal service commission. Negligence. Available at: https://www.lawhandbook.sa.gov.au/ch01s05.php. Accessed on 22nd May 2017.
ALRC. Authorising what would otherwise be a Tort. Available at: https://www.alrc.gov.au/publications/right-sue-tort. Accessed on 22nd May 2017.
Federal Register of Legislation. Law of Negligence and Limitation of Liability Act 2008 (NI). Available at: https://www.legislation.gov.au/Details/C2016Q00058. Accessed on 22nd May 2017.
Jackson v McDonald’s Australia Ltd [2014] NSWCA 162.
Fitzsimmons v Coles Supermarkets [2013] NSWCA 273.
Hamilton v Duncan [2010] NSWDC 90.
Mist Pty Limited v Palmer [2012] NSWCA 239.

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