Background
Tort law is considered as civil wrong done by one person towards another person, and the most common form of tort law is negligence. Negligence is considered as an action or failure to act by one person who owns duty of care towards another person, and such act or failure to act cause injury or damage to person.
In the present case, P is a lifelong fan of ABC Club and at the time of watching a game, p was hit by a stray ball which broke the glasses of P. In this case, P can take action against the defendant under tort of negligence.
This part of the answer defines the position of each possible defendant related to legal action, and for the purpose of this case relevant defendants are player, Football club, Coach, and the local council who owns the football club.
It must be noted that in some cases several tortfeasors are held liable for the tort committed by these parties against one party, and in this context all the tortfeasors are jointly liable for the harm. They are liable towards the plaintiff may depend on their individual degree of liability, as well as the rules for that particular jurisdiction.
In the present case, P can take actions against the Football Club because club owned duty of care towards the P and other defendants are also jointly liable for the negligence. In this case, Football club is mainly liable towards the P and P can take action against the Football club.
This can be understood through case law Miller v. Jackson (1977), in this case plaintiff sued the cricket club for damage caused to their property by balls. In this case, defendants were the members of the Lintz Cricket Club and in this ground cricket had been played from last seventy years. This land was owned by the National Coal Board (NCB) and this board also owed some fields adjacent the grounds. Four years before the action, one of the grounds was sold out by the NCB and on this Wimpey homes was developed near the cricket ground. Mrs. Miller bought one of the houses and take action under tort of negligence against the cricket club. In this Mrs. Miller seeks injunction to prevent the players from playing the cricket at the ground. At initial stage, there were number of balls which hit the house of Mrs. Miller.
Possible Defendants and their Liability
However, during the period of 1976 cricket club made the higher fence and the number of balls hit the house was reduced. No personal injuries resulted from the ball but it result in some property damages for which cricket club made the payment. She also made complaint that it was not possible for her to use her garden during the matches.
In this case, court decided that defendants were liable for both negligence and nuisance. However, injunction was refused by the Cumming Bruce LJ on the ground that it would not be fair to provide injunction against the cricket ground because this ground had been used for so long and it also result in loss to the community. Injunction would also provide advantage to Mr. Miller of being adjacent to an open space.
Lord Lane in this case granted the injunction on the basis of the decision in Sturges v Bridgeman and this case involves the assumption that there was no defense on the part of defendant to show that they result in the nuisance.
Therefore, it can be said that P can take action against the football club under tort of negligence and football club is liable towards the P for damage caused to P.
Answer 1: tort of negligence is considered as legal action which can be taken by the plaintiff against the defendant who owned duty of care towards the plaintiff. Liability in this arises when there is duty to take care and breach of such duty cause damage to the plaintiff. Following elements must be satisfied for taking action under tort of negligence:
- Defendant must own duty of care towards the plaintiff.
- Such duty of care must be breached by the defendant.
- Breach of duty must cause damage to the plaintiff.
This can be understood through case law Jaensch v Coffey (1984) 155 CLR 549, in this case plaintiff was the wife of a policeman who suffered injury at a road accident. Plaintiff was not present at the time of the accident and she went to the hospital after she gets the information about the serious condition of her husband. When she heard about the injuries of her husband she developed a psychiatric illness. In this plaintiff took action against the person who was responsible for the accident.
In this case, High Court unanimously decided that plaintiff had right to receive damages from the defendant because might be she did not get damages at the place of the accident but on attending at the hospital. Court held that injuries caused to plaintiff were foreseeable in nature.
Case Law
In the present case, Bruce owned duty of care towards the Ann and carol because all the injuries in this case are foreseeable in nature. On the basis of above stated case, it can be said that Bruce is liable towards the Ann and carol because he owns duty of care towards them, such duty is breached by the Bruce, and such breach cause damage to the Ann and carol.
Answer 2: contributory negligence is happened when injured person themselves contributed in the cause of their loss and injury. In case, plaintiff itself failed to take reasonable care for their own safety or loss then they will be considered as contributory negligent. In case of contributory negligence amount of damages will be reduced to the extent up to which plaintiff contributed in the negligence.
For the purpose of establishing the contributory negligence, normal test will be applied. This test is stated below:
Duty of care- in this duty of care is always present because person always owns duty to take reasonable care in context of his own safety.
Breach of duty of care- breach of duty of care occurred when plaintiff have to reasonably foreseen that if he fails to act with reasonable care then it might be possible that he hurt himself. For this purpose, reasonableness is measured subjectively on the basis of what specific person knows or must know at that time.
Damage- Plaintiff must suffered damage from the breach of duty of care he owned towards himself.
It must be noted that, there is no need that action of plaintiff is the original cause of the damage; it is the enough reason that such cause forced the damage. In case law Jones v Livox Quarries Ltd [1952] 2 QB 608, Court held that contributory negligence on part of plaintiff in context of his own damages extends only to those damages which are not too remote in nature.
In the present case, Hank’s, Distributor and Mower can use the defense of contributory negligence against the Ann, Bruce and Carol. They can state that Ann, Bruce and Carol failed to take reasonable care for their own safety or loss.
Answer 3: part 3-5 of the ACL is developed on the basis of EC Directive on Defective Products, 1985 and mirrors the old Part VA of the TPA, but there is one exception that it refers to a person. It is not possible for manufacturer to exclude the liability in the context of part3-5 of ACL. As per the provisions of part3-5 of ACL, buyer of the goods has right to take action against the manufacturer when any goods with safety defects cause injury or loss to that person.
Contributory Negligence
It must be noted that, goods have safety defect if safety expected by person is not provided by the goods and this involves two elements that are an expectation and an entitlement to a certain level of safety. Section 138 to Section 141 of the Australian Consumer Law- Schedule 2 defines the liability of manufacturer in context of safety defects in the goods:
Section 138 of ACL states the liability in case defective goods cause loss by injured the individual. As per this section, manufacturer of the goods will be held liable if because of the safety defects in the goods any person suffer injury or death. In this case, Manufacturer of the goods is held liable for the actual loss suffered by the consumer because of the injuries suffered by consumer. In the present case, Ann and Bruce can take action under section 138 of ACL against the Hank’s, Distributors Ltd. or Mower Ltd because they both suffer injury because of the safety defects present in the goods.
Section 139 of the ACL states the liability of manufacturer for defective goods Causing Injury to a Person Other than the Injured Individual. This section states that manufacturer is also held liable in case any person suffers injury because of the injury or death caused to consumer from defects present in the goods. In the present case, carol can take action against the manufacturer under section 139 of the Act.
Section 140 of the ACL defines the liability of manufacturer in case of loss caused to other goods because of the defective goods. As per this section, manufacturer of the goods is held liable if because of the safety defect in the goods any other goods that are used for personal, household, domestic or consumption purposes are damaged. In the present case, carol can take action under section 140 of ACL against the Hank’s, Distributors Ltd. or Mower Ltd because of the damage caused and disk with important data.
Section 141 of the ACL defines the liability of manufacturer in case defective goods cause damage to land, building, or fixtures. This section held the manufacturers of the goods liable in case damage cause to land building and fixtures because of the defective goods. In the present case, Bruce can take action under section 141 of ACL against the Hank’s, Distributors Ltd. or Mower Ltd because of the damage caused to the window and front fence of the house.
Answer 4: Section 142 of the ACL defines the four defenses which can be used by the manufacturer of the goods against the arguments stated by plaintiff under part3-5 of the ACL:
- Clause a of this section states that manufacturer can use the defense that defect in the good does not exist at the time of supply of the goods.
- Clause b of this section states that manufacturer can use the defense that defect occurred because consumer complied with the mandatory standard.
- Clause c of this section states that manufacturer can use the defense that he is not able to uncover the defect because of the technical and scientific knowledge at the time. This defense is known as the state of art defense.
- Clause d of this section states defect is present in the finished goods and defect is only related to the design, markings or instructions of the goods.
Hank’s, Distributors Ltd. or Mower Ltd can use the above stated defenses n the present case against the Ann, Bruce, and carol.
References:
Australian consumer Law- Section 138.
Australian consumer Law- Section 139.
Australian consumer Law- Section 140.
Australian Consumer law- Section 141.
Australian Consumer Law- Section 142.
Blay, S. The nature of tort liability, https://www.findlaw.com.au/articles/149/the-nature-of-tort-liability.aspx, (accessed on 17th January 2018).
Clayton UTZ, Product Liability, https://www.claytonutz.com/articledocuments/178/ICLG-Product-Liability-Australia-2015.pdf.aspx?Embed=Y, (2015), (accessed on 17th January 2018).
Jaensch v Coffey (1984) 155 CLR 549.
Jones v Livox Quarries Ltd[1952] 2 QB 608.
Lawgovpool, Torts, https://lawgovpol.com/torts/, (accessed on 17th January 2018).
Legal match, Tort Law Liability, https://www.legalmatch.com/law-library/article/tort-law-liability.html, (accessed on 17th January 2018).
Legal Services Commission of South Australia, Negligence, https://www.lawhandbook.sa.gov.au/ch01s05.php, (accessed on 17th January 2018).
Miller v Jackson [1977]3 WLR 20 Court of Appeal.
Sturges v Bridgeman [1879] 11 Ch D 852 Court of Appeal.
Uni Study guides, Contributory negligence, https://www.unistudyguides.com/wiki/Contributory_negligence#cite_ref-9, (accessed on 17th January 2018).
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