Contributory Negligence and Breach of Contract

Question: Discuss about the Contributory Negligence and Breach of Contract. Answer: Introduction: The law of negligence aims to grant compensation to the plaintiff who has suffered injuries because of the wrongful acts/omissions by the defendant and the defences which can be used by the defendant to secure his position. As per the facts of the case, Anna is the aggrieved/plaintiff and she must prove the elements of the law of negligence against the Trevor who is the defaulter/defendant in order to attain relief for the injuries that are sustained by her. Anna has to prove that Trevor is duty bound to provide care to her which was breached causing harm to her. Whereas, Trevor can prove that Anna has also contributed to her own loss and thus can reduce his quantum of liabilities. Legal principles and its application If Anna has to prove that the injuries caused to her are because of Trevor, then, she has to prove that there is duty of care upon Trevor. In Donoghue v Stevenson (1932) the law of negligence was established for the first time. There were three basic elements which need to be proved to hold the defendant negligent in his actions (Langridge v Levy (1837). The same are duty of care, breach and damages. The duty of care is the duty which every defendant must follow while doing any act/omission. The duty signifies that when the defendant is carrying or not carrying any activity, then, no damage should be caused to the plaintiff (Bryan v Maloney(1995). (P Latimer, 2012) But, the duty of care can only be imposed provided the defendant can foresee the affects of his actions, that is, the affect which can be reasonably foreseeable by the defendant. If the defendant cannot reasonably foresee the impact, then, there is no duty of care (Burnie Port Authority v General Jones [1994]) (Norman, 2004). Also, the law will only impose the duty provided the acts are hampering the interest of those plaintiffs who are connected with the defendant (Grant v The Australian Knitting Mills[1935]. There must be presence of neighbourhood amid the parties so that the acts of the defendant are hampering the interest of the plaintiff directly. (C Witting, 2007) Now, there is a duty of care that can be imposed upon Trevor. This is because there is presence of reasonable forseeability and the principle of neighbourhood. Trevor takes the walking trip on the day light knowing the fact that if the trip is conducted during night then there are chances of injuries that might take place. Thus, he can foresee the impact if this duty is not performed carefully. Also, Anna is one of the walkers on the trip. Thus, whatever acts/guidance that is provided by Trevor will affect Anna directly. There is connectivity amid both Anna and Trevor. So, there is the presence of proximity and neighbourhood principle. So, in such situation, Trevor must take such actions or non actions so that no injury is caused to his walkers because of him. Breach of Duty of care The defendant in all situations must comply with the duty of care that is imposed upon him, that is, he must act in such a manner is that his actions does not hamper any plaintiff who is his neighbour and for all those actions the impact of which he can reasonably foresee. But when the duty of care that is imposed upon the defendant is not fully catered by him, then, there is breach of such duty of care. But, a duty if care is only considered to be violated when the level of care that is expected from the defendant is not met and he short falls from the level of care that is expected from him (Lagunas Nitrate Co v Lagunas Nitrate Syndicate Ltd (1899). The situations are different and so does the level of care, but, whatever may be the situation, the level of care provided by the defendant must achieve the standard that is expected from him Introvigne v. Commonwealth (1982). For instance, if the degree/gravity of harm that might incur from the acts of the defendant is very high then the level of care that is expected from the defendant should also be very high (Paris v Stepney Borough Council[1950]. Likewise, if the defendant is aware that the plaintiff is a child, then, the level of care should be much high when compared with what is given when the plaintiff is a normal person. So, there are various factors that influence the level or standard of care that is required in a y given si tuation, such as, the factors includes, the age of the plaintiff, education, illness, metal condition, etc. Now, in the given situation, the facts reveal that Trevor operates day walking touring service as there were chances of accidents and injuries sustained by walkers when the tours were conducted during night. These walking tours were very easy going and Trevor takes a group of 6 people mainly for bird watching and allied activities. Trevor after understanding from his past experience is aware that the trip should be carried out in day light as any trip in the night has invited injuries. He tried to provide adequate protections to the walkers by informing them that all the walkers must wear sensible shoes and walking. He also made sure that the walkers are supplied with sandwiches and water. All these actions of Trevor may presume that the duty of care that is imposed upon Trevor are complies by him. But, the answer is No. Anna was one of the walkers but has faced injuries during the trip. This is because there was breach of duty of care on the part of Trevor. The level of care that is provided by Trevor is not up to the mark and is considered to be breached. This is because during the mid of the trip Trevor left the walkers alone in search of the new location knowing the fact that if the trekking is carried out in night then there are chances that injuries might be sustained by the walkers. He is aware of this fact because injuries have incurred before when the trip was carried out during night. The walkers have to return alone causing unnecessary hazards to them and Anna. Thus, the level of care is not achieved. He must have made sure that the trip has returned during day light. He must also make sure that no wine consumption should give taken during the trip. But, this duty was also breached as Anna has consumed the win during the trip. Thus, the level of care that is expected from Trevor is not met by him resulting in breach of duty of care. When the duty of care that is imposed upon the defendant is not met by him, then, in order to hold him negligent in his actions it is necessary that there must be injuries that are sustained by him (Carter V Walker(2010). It is only when the injuries are caused to the plaintiff that results in making the defendant negligent in his actions. (McKendrik Liu, 2015) But, the defendant is considered to be negligent only when the injury that is caused to the plaintiff is because of the actions of the defendant. There must be cause and effect relationship amid the actions of the defendant and the injuries that are sustained by the plaintiff. Thus, there is principle of causation that must be complying with, that is, the injuries that are caused to the plaintiff is because of the actions of the defendant. Also, the injuries that are caused to the plaintiff are of such a nature which are not too remote and must have been incurred because of the acts if the defendant. If the injuries are of such nature that they cannot be predicted reasonably or if the injuries are too remote which cannot be reasonably anticipated by the parties, then, there cannot be any negligence that is incurred by the defendant. In the given situation, because of the breach of duty of care by the Trevor, injuries are caused to the Anna. She stumbles down a hill side and resulted in causing her knee injured. Trevor is aware that if he does not bring back the group on time, that is, during day time because there were accidents that took place when the trekking was carried out during night, then there are chances of injuries that might be incurred to the trekkers. Thus, the injury that is caused to Anna is reasonably anticipated by Trevor and still no due action or care was provided by him. Also, the injuries are because of the breach of duty by Trevor, thus, there is presence of causation. Thus, damages have resulted because of the negligent act of the Trevor. So, there is duty of care upon Trevor which is violated by him causing him harm to Anna. So, Trevor is negligent in his actions. But, a defence is available to Trevor which he can use to reduce his liabilities. The defence of contributory negligence simply states that whenever the plaintiff is also negligent in his acts along with the acts of the defendant and it is not the defendant abalone who has caused the injury to the plaintiff, then, the defendant can take the defence of contributory negligence and can prove that it is plaintiff who has also contributed to his own loss along with the acts of the defendant (Vairy v Wyong Shire Council (2005) and thus the defendant alone should not be allowed to imposed with the liability and his liability should be reduced to the level of negligence caused by the plaintiffs actions. (A Freilich, 2000) Now, it is settled that Trevor was negligent in his actions and must provide compensation to the injuries that are sustained by Anna. However, he can take the defence of contributory negligence. It can be proved that the loss that is caused to Anna is not because of the acts of Trevor alone, rather, the loss that is caused to Anna is also because of her own contribution. Anna was directed by Trevor that she should wear sensible shoes and clothing. However, during the mid of the walk, she removed her runner shoes and wore heals which is one of the reasons of her fall. Also, during the walk, she consumed wine which made her restless and not fit for the walk. All these incidences have resulted in causing her to fall and sustain inquires. Thus, Trevor can take the defence of contributory negligence. Now, Anna can sue Trevor under the law of negligence and sue for damages and compensation for the losses that are incurred to her because of the breach of duty on the part of Trevor. But, Trevor is not liable for all the losses that are sustained by Anna. Trevor will only provide remedy for the loss that is caused to Anna because of his negligence and not for those liabilities which are incurred because of the acts of Anna herself. He can reduce his liability by taking the defence of contributory negligence. But, Trevor is not responsible for the loss of income which has resulted because Anna closed down her cafe. The closing down of cafe is not within the predictable damages and thus Trevor is not liable for the same. Guidance to Trevor and Anna It is suggested that Anna can prove in court that Trevor owns a duty of care against her which is not complied by him causing her injuries. Thus, she can prove that Trevor is negligent in his actions. But, Trevor can also prove that the loss that is caused to Anna is not solely because of his actions and that Anna has also contributed to her own loss by wearing heals and consuming wine. So, he can reduce his liabilities accordingly. Also, Trevor is not responsible to the loss of income from closing down of cafe as it is the loss which is too remote for Trevor to predict. Reference List A Freilich (2000) Contributory Negligence and Breach of Contract: The Implications of Astley v Austrust Ltd. Vol 29. C Witting, Tort Law, Policy and the High Court of Australia" [2007] MelbULawRw 23. McKendrik Liu (2015) Contract Law: Australian Edition. Palgrave Macmillan. Norman K, Who then in law is my neighbour?" - Reverting to First Principles in the High Court of Australia (2004). The Tort Law Review 12(2):pp. 85-97. P Latimer (2012) Australian Business law, CCH Australia Limited. Bryan v Maloney(1995). Burnie Port Authority v General Jones [1994] HCA 13. Carter V Walker(2010). Donohue v Stevenson (1932). Grant v The Australian Knitting Mills[1935] UKPC 2 Gala v Preston (1991). Introvigne v. Commonwealth (1981-1982) 150 CLR 258 Langridge v Levy (1837). Lagunas Nitrate Co v Lagunas Nitrate Syndicate Ltd (1899). Paris v Stepney Borough Council[1950]. Vairy v Wyong Shire Council (2005).