The Area of Law The area of common law relevant to tort of negligence will be discussed to determine whether Terry Fagan Mining Pty Ltd is liable to Brendan Yze. Principle of Law Negligence is a tort, which can be dictated as a conduct that are not caused deliberately by defendants to result in another person suffer from damage or injury in term of physical, emotional, financial or property. It often happens when a person is departed from a conduct and expected another reasonable person is acting under a similar circumstance. Failure to do something that a reasonable person would do or would not do, will increase the chances of the plaintiff to suffer from damage. In short, negligence can be defined as the defendant at fault due to careless acts (Squelch, Bowyer & Monterosso, 2015). In order to established negligence, a plaintiff must prove that the defendant had a duty of care to plaintiff but the defendant has also breached the duty by failing to conform to the required standard of conduct. As a result, the plaintiff was suffering from damage or injury, which are reasonably foreseeable due to negligent act of the defendant. In brief, the existence of these three elements is crucial to establish the tort of negligence (Gibson & Fraser, 2007). Duty of care is defined as an individual is to obligation impose a standard of reasonable care for avoiding any foreseeably harm to other. Historically, a duty of care can be claimed only if the plaintiff and defendant have a sufficient relationship of proximity (direct relationship), which belong to one of the recognized categories such as manufacturers, authorities, builder and occupiers of premises. In modern law, Lord Atkin’s has redefined the existence of duty of care between the plaintiff and defendant from absolute need of proximity to no pre-existing relationship by satisfying two elements. The first element being the concept of proximity, that a duty of care is owed to a person when an individual’s action could be closely or directly affecting the other. The second element is whether the defendant has fulfil his duty of care to prevent foreseeably damage or injury from happening to another due to his or her omission or careless. The defendant should not put the plaintiff on risk that may lead him or her to suffer from damage. For example in Donoghue v Stevenson (1932), Ms Donoghue sued Mr Stevenson for breaching the duty of care to his customer due to a snail found in the ginger beer drink consumed by her despite it was purchase by her friend. Lord Atkin held that sufficient proximity has been established between the plaintiff and defendant as the manufacturer and consumer. Hence, Mr Stevenson should be liable to Ms Donoghue (Squelch, Bowyer & Monterosso, 2015). The breach of duty of care is explained as the defendant fails to comply with the standard of care required by law. The standard of care is objective and examined based on the fact that reasonable person will react under similar circumstance. When deciding the breach of duty, the court will consider foreseeable harm or damage to the plaintiff and reasonableness of the defendant in response to the risk. In addition, the court will take account to the elements that can affect the act of reasonable person. The first element is the seriousness of consequences. For instance in Paris v Stepney Borough council  AC 367, Paris has only one eyes, became blind due to metal chip flew into another eye during work. The defendant claimed that there was not a practice standard to provide worker with a safety googles. The court held that the defendant was negligent because of the seriousness of harm to plaintiff was greater than other normal worker with both vision. Another element is the likelihood of risk. As example in Bolton v Stone  AC 850, Stone took action against the cricket club because she was struck by a cricket ball that flew over 17 foot high fence. The court judged that the cricket club did not breach of duty because they had fulfilled all the required practical precautions for the circumstance and the risk was low. The last element being the reasonableness of precaution against the chances of getting harm. This could be illustrated in Haley v London Electrical Board  3 All ER 185. The defendant argued that they had taken necessary precaution by installing visual warning sign. However, the judge held that the defendant was at fault because the plaintiff was blind. The risk should be foreseen by the defendant and the barrier should be presented (Squelch, Bowyer & Monterosso, 2015). Damage can be explained as personal, monetary or property loss suffered by plaintiff due to the omission acts by the defendant. Two elements must be taken into consideration in defining damage. The first element is causation, which can be illustrated as the careless act of defendant that directly causing damage to the plaintiff. The “But For” test is used to determine the source of harm. If the injury would not have happened, “but for” a particular fault. The particular fault is then the source of damage. As example in Amaca Pty Ltd v Ellis  HCA 5, the lung cancer of Ellis was determined with “but for” test, either caused by long term smoking or exposure to asbestos during work. The court held that the exposure to small amount of asbestos was insufficient to cause lung cancer. However, smoking for over 25 years has greater chances to cause his dead. The second element being the damage can be recoverable only if it is reasonably foreseen and not remote from the causation. For instance, in Wogon Mound (No.1), the defendant’s ship leaked furnace oil onto the surface of harbour and spark from the welding work has ignited the oil. The fire destroyed the wharf and ships. The court held that the damage was not reasonable foreseen because furnace oil was hard to ignite in the water. In Wogon Mound (No.2), the judge held that the furnace oil is able to ignite in the water because it was “real” happening and not “far-fetched”. Hence, the damage was foreseeable. The plaintiff was successful in the second case (Squelch, Bowyer & Monterosso, 2015). Apply the Law of the Fact Liability between Terry Fagan Mining Pty Ltd to Brendan Yze can be determined by analysing three elements in the tort of negligence. Duty of care between the plaintiff and the defendant can be examined by the concept of proximity and the “reasonable foreseeability of injury” test defined by Lord Atkin. The concept of proximity was established as Brendan was sent by Newborn to conduct maintenance of the coking oven for Fagan. The relationship of Fagan and Brendan was recognised as that of employer and employee. Additionally, the reckless action of Fagan of reconditioning the telescopic duct without obeying the recommended standards directly affected the safety of Brendan. During the work, Brendan was struck by the malfunctioning telescopic duct and suffered an injury, resulting in disability. Fagan should have reasonably foreseen the risk from the reconditioned telescopic duct. He should have taken reasonable safety precautions by switching off the machinery or warning Brendan about the reconditioned telescopic duct, before the maintenance work was performed. This case was similar to Donoghue v Stevenson where the judge held that the defendant had to take reasonable care to avoid any acts or omissions which could potentially cause injury to his neighbour. The neighbour refers to a person who is closely or directly affected by the defendant acts or omissions. Hence, the duty of care exists between Fagan and Brendan. Fagan has breached the duty of care by failing to comply with the recommended standard of the telescopic duct. He had reconditioned instead of replaced the part of the telescopic duct as proposed in the requirement. In addition, he does not consider the seriousness of the consequences by using the counterfeit part for reconditioning. His selfish action has gave rise to likelihood of risk, which was contrary to the case of Bolton v Stone. As result, Brendan was confined to a wheelchair and suffered from blurred vision with occasional headaches as the reasonable precaution was not taken by Fagan. The causation of real damage suffered by Brendan can be analysed through “but for” test as described in Amaca Pty Ltd v Ellis. According to Brendan, he could better assess the integrity of the hydraulic fitting while the machine was operating. Hence, he did not switch off the machinery. However, Brendan was an experienced officer, who was familiar with the extraction system. The sudden extend of telescope duct from the machine was not expected by him unless an artificial part was used in that machine. Hence, Fagan was the greater cause of the damage due to he had violated the recommendation standard. In fact, there is no precaution was taken for the foreseeably damage, which can be discovered by normal intelligent person. As a result, Brendan has authority to claim his damage in the court. Conclusion It appears that Terry Fagan Pty Ltd was liable to Brendan Yze under Tort of Negligence because Fagan has a duty of care to Brendan. However, he breached the duty by violating the standard of care. As a result, Fagan suffered from injuries, which resulting he cannot longer work in mining industry. The Area of Law The area of “common law defend” possibility applied by Terry Fagan Mining Pty Ltd against Brendan Yze’s action will be discussed as following. It is assumed that Brendan was successful providing negligence against Fagan. Principle of Law Two of the common doctrines are voluntary assumption of risk and contributory negligence, which can be issued against claim of negligence (Gibson & Fraser, 2007). Voluntarily assumption of risk is a complete defence to negligence. It is described as the plaintiff volunteers to fully accept and assume the risk of harm caused by the defender’s act. In order words, the plaintiff being fully aware of the danger that caused by the defendant, and deciding to proceed to engage in the activity. As a result, the defendant may be escaped from the legal liability for their negligent conduct. For instance, in Insurance Commissioner v Joyce (1948) 77 CLR 39, the plaintiff decided to get into a car with a drunk driver and eventually suffered from injury in a car accident. The court held that the plaintiff was not entitled to compensation because the plaintiff had voluntarily assumed the inherent risk that the drunk driver would drive carelessly (Squelch, Bowyer & Monterosso, 2015). Contributory negligence is a partial defence to negligence, where the liability will be apportioned between plaintiff and defendant. In this case, the plaintiff is also liable for the damage that are imposed on themselves. This is because the plaintiff breach the duty by failing to take reasonable care for their own safety. In general, the damage suffered by plaintiff is partly due to their own negligence, in addition to the defendant’s fault. Hence, the damage is awarded based on amount of plaintiff contribution to their own injury. In short, the plaintiff could not fully claim their loss against the defendant. For instance, in March v Stramare Pty Ltd (1990) 171 CLR 506, a drunk driven collided a truck parked in the middle of the road at early hours in the morning. The drunk driver suffered from injury and sued the defendant for illegal parking. However, the court ruled that both parties were guilty. Because, a normal driver was unlikely to collide a truck with its hazard light on. Additionally, the road was well lit by the road lights. Hence, the drunk driver was held guilty for causing greater damage in the tragedy due to his intoxication. The court apportioned that 70 percent damage should be bared by the plaintiff and 30 percent damage should be compensated by defendant (Squelch, Bowyer & Monterosso, 2015). In employment context, vicarious Liability is an indirect liability imposed on an employer for the wrongful acts of their employee. The reason is the employer should pay for the cost of damage in their business operation. The employer is capable to afford the damage and has authority to pass the liability to the insurance company. Vicarious liability did not implied to the independent contractor. Only the relationship of employer and employee defined by the control test or organisation test can be claimed for vicarious liability. The control test defines the employee as a person who works based on the instruction and command of the employer; whereas the organisation test defines the employee as a person who is part of the employer’s organisation. For example, in Henson v Perth Hospital Board of Management (1938) 4 WALR 15, the nurse had provided different ear drops as prescribed by the doctor to the outpatient. As the result, the patient suffered from ear damage. The court decided that the hospital was vicariously liable for the negligence because the doctors and nurses were the employees of the hospital. Furthermore, vicarious liability can be claimed only if the tort committed by employee was under scope of employment. The scope of employment outlines and describes the employee’s responsibility and scope of work. It also includes work that is incidental to the employment, such as staff party. If the act is outside the scope of employment, then the employer will not be held vicariously liability as illustrated in Twine v Bean’s Express Ltd  1 All ER 202 – The court held that the employer was not vicariously liable to the hitchhiker’s dead. The fault was because the employee violated the rule of the company by giving a lift to hitchhiker with his employer’s van. The employee had act outside of the scope of his employment. He was responsible for his negligent driving (Squelch, Bowyer & Monterosso, 2015). Apply the Law of the Fact The possibility of Terry Fagan Mining Pty Ltd defending against the claim of Brendan Yze can be analysed by the three elements aforementioned in the principle of law. It is improbable that voluntarily assumption of risk can be applied in this case, unlike Insurance Commissioner v Joyce. This is because Brendan was an experienced officer, who was familiar with the extraction system. He did not have an idea about the risk caused by the defendant before the maintenance work was performed. Therefore, the risk was not foreseen by Brendan. As a result Brendan was unlikely to consent and assume the risk of harm for the negligent act caused by the defendant. Contribution negligence can be implemented to mitigate the legal liability of Fagan to Brendan in this case. The reason is Brendan failed to take good care of his own safety by violating the safety rule, by not switching off the machine before the inspection was carried out. Thus, the plaintiff and the defendant were at fault which is similar to the case of March v Stramare Pty Ltd. The award of damage should then be deducted based on the amount the defendant contributed to their injuries. Hence, the legal liability will be apportioned accordingly between the plaintiff and the defendant. Vicarious liability should be given to Jeff Newbold & Co. The reason is Newbold employed Brendan to conduct the maintenance service of the coking oven for Fagan. During work, Brendan was injured due to Fagan and his negligent act. Hence, Newbold should themselves consider the injury of their employee’s and the resulting damage as the part of their business operations. As a result, Newbold should be partly liable to Brendan because it is unfair for Fagan to be fully liable for the damage. Conclusion It appears that contributory negligence is the most favourable defence for Terry Fagan Pty Ltd against Brendan Yze because it is the most likely to be successful. Additionally, vicarious liability is worth mentioning in supporting the contributory negligence. Therefore, the legal liability will be apportioned between Terry Fagan Mining Pty Ltd and Jeff Newbold & Co dependant on the contribution of damage between Fagan and Brendan. Reference Gibson, A. & Fraser, D. 2007. Business law. Frenchs Forest: Pearson Prentice Hall. Squelch, Bowyer & Monterosso, 2015. Laws for Engineers 202 Lecture notes.Topic6. Curtin University.
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