Business Law Assignment Based On The Elements Of Negligence Case
Task: Brian operates sight-seeing tours off the Slippery Coast in South East Queensland [you can choose Victoria or NSW]. Brian has a small boat. The marine authority, which regulates licensing for tourist operators, has determined that Kevin’s boat can safely accommodate two passengers at a time.
Dot has invited her brothers, Tim and Nick, to come from Tasmania to the Slippery Coast for a holiday. Dot arranges to take a sight-seeing trip with her brothers on Brian’s boat the morning after they arrive.
The morning of the trip, Brian woke up with the flu and told his son, Jack, to take the boat out instead. Jack is 16 years of age and does not have a boating licence. Jack decides that it will be all right to take three people out because the regulations are very conservative. Jack knows that other operators frequently exceed their limit. He makes sure he has three lifejackets on board for his passengers.
The brothers arrive early at the dock to board the boat. Jack notices that the three brothers are all very large men. On boarding Tim notices a sign attached to the boat, which says ‘Lifejackets must be worn at all times.’ Tim thinks that a jacket would be hot and uncomfortable and ignores the sign. The weather looks fine. They head out to sea.
One hour after leaving the dock, a sudden storm causes the boat to take on water. Jack struggles into a lifejacket. He yells to the others to put theirs on. Tim can’t hear him above the sound of the water lashing the boat. He sits with his head down against the rain, hanging onto the side. A big wave hits and the boat capsizes. Jack, Dot and Nick surface from under the water and hang onto the upturned boat. Tim surfaces some minutes later, unconscious. Nick grabs Tim and hangs onto him.
They are all rescued within 30 minutes by a coast guard patrol. Tim is revived and rushed onshore to hospital. Jack, Dot and Nick are remarkably unharmed. Tim, however, has sustained some brain damage due to nearly drowning. He has also sustained permanent paralysis down his right side and is confined to a wheel- chair. Evidence reveals that the excessive weight of the passenger load contributed to the capsizing of the boat.
Tim comes to you for advice. He wishes to sue Jack in negligence.
Read the above scenario and prepare a business law assignment addressing the following questions:
1. Did Jack owe Tim a legally recognisable duty of care at the time of the incident?
2. If Jack owed Tim a duty of care, did he breach that duty of care?
3. Could Tim prove the element of damage in an action in negligence against Jack?
4. What defence, if any, could Jack raise against Tim? How would proof of a defence affect Tim’s claim?
What remedy could Tim claim against Jack?
Did Jack owe Tim a legally recognisable duty of care at the time of the incident?
The first legal issue toconsider herein business law assignment is whether there existedany legal duty of care owed byJack to Tim when the incident took place.
In Donoghue v Stevenson , duty is casted on the defendants to take care of the plaintiff while carrying out any acts or omissions provided the plaintiff is the neighbour of the defendant.
Thus, the first element under the negligence law is DUTY OF CARE.
When there is physical damage caused to the plaintiff, then, the only element to prove Duty of care on the part of the Defendant is “RESONBALE FORSEEABILTY” as laid down in the case of Donoghue v Stevenson. (Leeming, 2019)
The main requirements that need to be comply with are:
i. Physical damages – once physical damage is proved, then, there is reasonableforeseeability and proximity amid the party’s trend to be present:
ii. Reasonable person and reasonable foresight -A reasonable person is aperson with normal intelligence and an average person. The plaintiff is said to be reasonably foreseeable when the defendant is aware that his acts or omissions will impact the plaintiff and thus the presence of plaintiff is presumed by the defendant and is analysed in Bourhill v Young .
iii. The duty of care exists when the defendant like a reasonable person can reasonably foresight the real likelihood of the harm that is caused to the plaintiff.
iv. Reasonable foresight on the part of the defendant is relevant. Reasonable foresight exists when:
- the plaintiff is relying on the defendant and
- the defendant is aware of the risk and
- it is evident that because of the acts of the defendant, the plaintiff can suffer harm and;
- The control and knowledge that the defendant owns towards the risk and the situation.
When the elements are present then the defendant is under the obligation of DUTY OF CARE.
Since there is physical damage caused to Tim thus the only element that needs to be prove is reasonable foreseeability. There is duty of care on the part of Jack because:
i. All Dot, Tim and Nick take the boat of Jack for use and any acts by Jack will affect them. So, Tim is directly in association with Jack and any acts by Jack, whether positive or negative, will hamper them. Thus, there is reasonable foreseeability.
Ii. Also, any act and omissions on the part of Jack will impact Tim.Jack is a reasonable person and has reasonable foresight and can evaluate the real likelihood of the harm that can be caused to Tim because of his actions. Thus, there is proximity as so reasonable foreseeability;
iii.That Jack has control, knowledge over the situation. He is aware that Tim is relying on the knowledge of Jack and thus there is reasonableforeseeabilityand presence of Duty of care on the part of Jack.
So, both the elements of duty of care are present.
it is thus concluded that Jack owns a duty of care towardsTim and must ensure that none of them must suffers damages.
If Jack owed Tim a duty of care, did he breach that duty of care?
If there existed a duty of care owed toTim, then, wasthe said duty breached by Jack?
In order to hold any defendant liable under the law of negligence, it is important to establish that the standardof care that is expected from the defendant in thegiven situation is not met by him.
Whether the duty of care is breached, both the parts of Section 48 of the Wrongs Act 1958 (Vic) must be dealt with. As per section 48 (1) of the 1958 Act, whether the breach of incurred or not can be judged by evaluating whether the risk is foreseeable. The plaintiff has to prove the balance of probabilities that the defendant has failed to take reasonable standard of care. The breachis said to incur when:
i. the risk is reasonably foreseeable;
ii. the risk of harm is insignificant;
iii. no reasonable precautions are taken by the defendant to prevent the risk.
There are several factors under common law that influence the standard of care in any given situation. The several factors include:
i. If the defendant has special skill then the level of care is higher;
ii. Age is only relevant to children and is held in McHale v Watson (1966) and Imbree v McNeilly(2008)
iii. permanent disability
iv. common practice;
v. the standard imposed by legislations.
In Philips v William Whitely Ltd  when the level of care or the standard of care that is expected/presumed by the defendant in any particular situation is not met by him, then, such duty is breached. Whether the care met is reasonable can be judged by comparing the precautions of the defendant with a reasonable person in the similar situation. As per Swain v Waverley Municipal Council  the defendant must make all efforts to eliminate resemble risks and if the same is not carried on then there is breach. (Plunkett, 2018)
As per Section 48 (2) of the Wrongs Act 1958 (Vic)s, there are several factors which are used in applying whether there is breach of duty of care. The factors include:
i. the probability of risk or injury as held in Graham Barclay Oysters Pty Ltd v Ryan (2002)
ii. The seriousness of the consequences
iii. the cost of taking precautions as per Rogers v Whitaker 
iv. the social utility of the activity as per Bolton v Stone .
Thus, if the plaintiff is vulnerable then the risks is high and thus the duty of care must also be high and versa.
There is clear breach on the part of Jack as:
i. It is stated that Jack can reasonably foreseeable the risk as only 2 passengers are permitted to take in the boat. However, even after knowing that all the three passengers, Dot, Tim and Nick are healthy man, still he decided to take all the three by the boat at the same time.
ii. Further, he is also aware that risk of harm is insignificant and
iii. no reasonable precautions are taken by the defendant to prevent the risk.It is submitted that Jack does not have the license to row the boat, and he still decides to take all Dot, Tim and Nick on the boat. There is clear breach of law on the part of Jack.
The level of care that is taken by Jack is much below the standard of care that is expected from Jack. He intentionally took all Dot, Tim and Nick on the boat knowing that it might cause some accident or damage to the passengers, still, he decides to take all of them together. Thus, there is a clear breach of duty on the part of Jack. Also, Jack is aware that all Dot, Tim and Nick are healthy men and as per the marine authority only 2 passengers are permitted on the boat, still, Jack took all the three men. It is his duty to avoid to take all the three men at once, but he decided otherwise, and thus, the level of care that is expected from Jack is breached from the very first instance when all Dot, Tim and Nick board the boat.
It is thus concluded that the duty that was imposed upon Jack under the law of negligence was breached by Jack because Jack failed to meetthe standard of care in the given situation.
Could Tim prove the element of damage in an action in negligence against Jack?
Whether the element of causation and remoteness are present to prove that damages are caused to Tim because of the acts of Jack?
Now, in order to hold any defendant liable under the law of negligence, it is very important that there are some kinds of harms or damages that must be caused to the plaintiff because of such breach of duty of care.
Damages is some kind of negative impact that is caused to the plaintiff because of the breach of duty of car on the part of the defendant.
As per Section 51 of the Wrongs Act 1958 (Vic), a damage is said be incurred under the law of negligence only when 2 elements are complying with, that is:
i. But for Test- factual causation - Causation simply means that the cause of injury caused to the defendant is because of the breach of duty of care on the part of the defendant as set out in Chappell v Hart (1998). It is necessary that the reason for the plaintiff loss is the act and omission of the defendant and not some other secondary element.so, the cause of loss is the acts of the defendant as per Strong v Woolworths (2012).
As per 51(1)(a) Wrongs Act 1958 (Vic), however, many a times, as a consequence of the breach of duty on the part of the defendant, the plaintiff might suffer damages.
ii. Remoteness (reasonable foreseeability) –As per s 51(1)(b) Wrongs Act 1958 (Vic)/, the loss that is caused to the plaintiff should be such that is not too remote. The scope of the liability is judged by situation to situation. This means that the loss which is caused is reasonably foreseeable. As per Overseas Tankship (UK)Ltd v Mort Dock Engineering Co Ltd (the Wagon Mound Case) (1961), if the loss that is incurred by the plaintiff is such which is too remote and cannot be reasonably foreseeable by a reasonable prudent man, then, the defendant is not liable for such kind of losses and the plaintiff has to bear his own loss. But, since Jack is boating without the license thus, he is in breach of his duty of care and can reasonably foresee that his acts might cause harm to Tim and thus, damages can eb caused to him. (Hodgson, 2016)
It is now submitted that Jack is aware that he is taking more person than the permitted limit on the boat, that is he is taking 3 men instead of 2. Also, he does not have licence to row the boat. Later after 3 hours of leaving the boat, a sudden storm occurred. Because of the storm the boat was upturned. Because of this, Tim sustained injuries. By Applying ‘But for’ test it is submitted that the risk was inevitable and jack can reasonably foresee the same. He also suffers permanent paralysis down his right side and is put on wheel chair.
Now, the loss that is caused is because of the overweight of the boat and the same is evidenced by a proper report. Arguably,it is objectively stated that because of overweight on the boat there are chances that some accident might happen, thus, there is presence of reasonable foreseeability. Further, Jack was boating without licence and thus the damage that can incur from the same is not remote and can be anticipated as per the situation.
Since, the elements of causation and reasonable foreseeability are present, thus, the damages that are caused to Tim must be borne by Jack.
What defence, if any, could Jack raise against Tim? How would proof of a defence affect Tim’s claim?
Are there any defences that can be raised by Jack against Tim? Whether the defence will affect the claim of Tim?
That when all the elements of the negligence aremet, then, it imposes liability on the defendant and he must compensatefor the losses that are suffered by the plaintiff because of hisnegligent conduct.
But there are somedefences that can be raised by the defendant in order to negate or mitigate his liability and one is contributory negligence.
As per section 26, 62-63 of the Wrongs Act 1958 (Vic), contributory negligence can be raised wherethe losses or the damage suffered by the plaintiff are caused not because of the negligent conductof the defendant alone but also by the plaintiff himself to some extent2 issues that must be considered are:
i. Whether plaintiff has not taken reasonable steps to take care of himself?
ii. Whether such failure resulted in injury to the plaintiff?
If yes, then, there is contributory negligence as per March v Stramare (1991).
When the defence of contributory negligence is proved, the defendant is liablefor only those losses which are caused because of his negligent acts and not which are caused by the plaintiff himself. Thus, the, liability of the defendant will be reduced.
As per the facts of the case, when Tim was boarding the boat then a notice was put on the boat, that ‘Lifejackets must be worn at all times’, however, he ignores the sign as he thought it would be uncomfortable to wear the same. Thus, Tim has avoided taking precautions to protect himself from any foreseeable risks as he is aware that while boating there are chances of accidents and that might cause harm to Tim. It was his duty to wear the lifejacket in order to avoid the risks.
Also, when the boat was about to upturn, at that time also, Jack asked all the passengers to put on their life jackets but because of the sound of water they were not able to hear Jack.Tim was aware that the situation is getting worse and thus it was his duty himself to wear the jacket eve if no command is received from Jack. Thus, Tim himself has not taken any protection to protect his own interest.
It is submitted that one of the reasons that Tim has sustained immense injury is because he was not wearing life jacket. This is because if Tim would have worn the jacket then he would have float on the water immediately and could have prevented his injury. By not wearing the jacket he came offshore a bit late. Thus, the loss that is caused to him is also because of his own wrong and thus, defence of contributory negligence can be raised by the Jack.
It is thus concluded that the loss that is caused to Tim is also because of his negligent actions by not wearing the life jacket, thus, Jack can take the defence of contributory negligence.
What remedy could Tim claim against Jack?
Is there any remedy that can be claimed by Tim against Jack?
When all the elements of negligence are proved then the plaintiff has the right to seek remedies from the defendant and the same is to the extent of loss that is suffered by him because of the negligent acts of the defendant. There are two kinds of damages:
i. Special damages are those which are loss of earnings;
ii. General damages are those which cannot be quantified easily, that is, loss of earning capacity.
Tim has the right to sue for his damages for the injuries and paralysis that are caused to him because of Jack. Tim cam sue for general damages, that is the loss of his earnings but can also sue for special damages that the loss of his earning capacity. But Jack can take the defence of contributory negligence and mitigate his losses.
It is concluded that Jack has to provide remedy to Tim but the remedy can be mitigated or reduced to the extend by which Tim himself is liable for his own losses.
Leeming, M. (2019) The Statutory Foundations of Negligence
Plunkett, J. (2018). The duty of care in negligence.
Hodgson, D. (2016). The law of intervening causation.
Wrongs Act 1948 (Vic)
Barnett v Chelsea and Kensington Hospital Management Committee  1 QB 428
Bourhill v Young  AC 92.Business law assignmentBolton v Stone  AC 850
Chappell v Hart (1998);
Caparo Industries v Dickman  2 AC 605.
Donoghue v. Stevenson  AC 562.
Imbree v McNeilly(2008)
March v Stramare(1991);
Graham Barclay Oysters Pty Ltd v Ryan (2002) 194 ALR 337
McHale v Watson (1966).
Rogers v Whitaker  HCA 58
Swain v Waverley Municipal Council  HCA 4
Strong v Woolworths (2012)
Overseas Tankship (UK)Ltd v Mort Dock Engineering Co Ltd (the Wagon Mound Case) (1961)