Grant v. Australian Knitting Mills.pdf

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Introduction
It is well settled principle in law that in a negligence action the burden of proving the claim rests
is on the plaintiff or the claimant in the case (Boehm, 2003). The court in Grant v Australian
Knitting Mills (1936) averred that in a negligence claim it is incumbent upon the
plaintiff/claimant to prove three key elements. These are;
a) The defendant owed him duty of care
b) The defendant has Breach the said duty
c) Causation (A causal relationship between the defendant’s actions and the consequences)
d) The plaintiff has been injured, suffered loss or damage
It is instructive to note that the parents of the children who drowned and those that were injured
will be the claimant/ plaintiffs while the shipbuilders, Captain Hawkeye and First Mate will be
the defendants. Therefore, the parents of the children as the plaintiffs suing on behalf of their
children will bear the burden of proving the elements of negligence against each defendant.
Duty of Care
Typically, the claimant has to show that the defendant in question owed him a duty of care. The
concept of duty of care was espoused by Lord Artkin in the landmark ruling of Donoghue v.
Stevenson (1932) when he brought to force the neighbor principle. Lord Artkin averred that
individuals should always have their neighbors in contemplation when doing something (Keenan,
2004). He defined a neighbor as any individual who may be harmed, injured or suffer loss
though one’s actions or omissions. He therefore noted that an individual owes his neighbor(s) a
duty of care. The plaintiff must therefore proof that he is a neighbor within the meaning of Lord
Aitkin’s neighbor principle and that the defendant in question owed him a duty of care. At the
onset it is incumbent upon the plaintiff to prove that a reasonable foreseeable risk of harm
existed in the prevailing circumstances (Kings v Philips, 1952). In addition, there must be an
identifiable reasonable degree of proximity manifested in relationship between the plaintiff and
the defendant (Home Office v Dorset Yacht Club, 1970). In the end, the claimant bears the
burden evincing that it is just, fair and equitable to conclude and find that the defendant owe him
a duty of care.

The children who boarded the boat can be regarded as neighbors within the meaning of Lord
Aitkin’s neighbor principle. This stems from the fact the actions or omissions of the shipbuilders,
Captain Hawkeye and First Mate are likely to directly affect them. It can be argued that the
Shipbuilders, Captain Hawkeye and First Mate owe the children a duty of care. This is evidenced
by the fact that there was a reasonable risk that the children could drown or be injured if proper
care was not taken. In addition, there is an identifiable reasonable degree of proximity
manifested in relationship between the children and the Shipbuilders, Captain Hawkeye and First
Mate because the safety of the children is conditional on their actions. Due to the nature of the
service that Shipbuilders, Captain Hawkeye and First Mate render it can be argued that it is just,
fair and equitable to conclude that they owe the children a duty of care
Breach of Duty
It is well settled principle in English Law that an individual will beheld to be in breach of the
duty of care if his actions fall below the normal minimum standard that is expected for an
ordinary skilled person in similar circumstances (Keenan, 2004). According to the court in
Flynn v. O'Reilly (1999) the standard of care is that of an ordinary reasonable skilled person. The
test that the plaintiff will apply to advance the contention that the defendant breached the duty of
care he owed him is referred to as the reasonable man test. Therefore, the plaintiff’s imperative is
to prove that the defendant failed to act in a manner that a reasonable and ordinary person would
have acted and that the actions of the defendant fall below the standards that of a body of
professional opinion (Bolam v Friern Hospital Management Committee, 1957). In the case of
Latimer v AEC Ltd (1953) took to the view that an individual will be held to have breached the
duty of care if he fails to foresee reasonable foreseeable risks that are likely to have devastating
consequences on others.
It is apparent that the Shipbuilders were aware of their duty of care towards Captain Hawkeye.
This is evidenced by the fact the previous day before the children board the boat that they had
Captain Hawkeye to take the boat for urgent repair. Ideally, the any ordinary reasonable ship
builder would have acted in the same way as a measure of promoting safety. In this case the ship
builders cannot be held to have breached the duty of care.

As the owner of the boat, Captain Hawkeye’s actions fall below the normal minimum standard
that is expected for an ordinary person in similar circumstances. An ordinary reasonable person
who owns a boat would not have declined or failed to take a boat that needs repair to the
shipbuilders for urgent fixing. It can be argued that Captain Hawkeye has breached the duty of
care. In addition, due to the boat’s technical issues that were in fact known to Captain Hawkeye
there were reasonable foreseeable risks that he failed to foresee he can be held to have breached
the duty of care.
First Mate was acting under the instructions of, Captain Hawkeye who is his boss. An ordinary
person working as an employee in a similar capacity and environment as First Mate would not
have known that the boat had developed technical issues. In addition, First Mate steered the ship
according the expected standard like an ordinary reasonable person would do. However, First
Mate had obligation to ensure that all children had put on their life vests as instructed. Since the
boat passengers were possibly minors, First Mate ought to personally inspect that all the children
had put their life vests on. It can be argued that an ordinary reasonable person working in First
Mate’s capacity would have ensured that all children had put on their life vests as instructed.
Stemming from this failure it can be argued that First Mate can be held to have breached the duty
of care.
Causation
Factual Causation
Factual causation is determined by the ‘But for Test’. The ‘But for Test’ was applied by the court
in Barnett v Chelsea & Kensington Hospital (1968) where it held that one must seek to
established whether the ‘But for the actions or omissions of the defendant, the claimant would
have been injured or suffered loss?.’ If the response is negative (No), it implies that the
defendant was the cause of the harm, loss or damage that the plaintiff has suffered. In essence,
the plaintiff must prove that he was only injured or suffered loss and damage due to the
defendant’s actions.
The shipbuilders had offered to repair the sheep but their concern was disregarded by Captain
Hawkeye. The shipbuilder’s willingness to repair the boat is a cause of the injuries and damage
suffered by the children.

If a question is posed, But for Captain Hawkeye’s failure to take the boat for repair, the children
would have been injured or suffered loss? The response is no. This implies that Captain
Hawkeye’s failure to take the boat for repair is a factual cause of the injury and damage suffered
by the children.
If a question is posed, But for First Mate’s failure to ensure that all children had put on their life
vests as instructed, the children would have been injured or suffered loss? The response is no.
This implies that. First Mate’s failure to ensure that all children had put on their life vests as
instructed, is a factual cause of the injury and damage suffered by the children.
Proof of Damage/Loss or Harm
The imperial rule to proof and recover damages for lo or harm suffered the plaintiff must prove
that there is a proximity cause between the harm, injury or loss suffered and the wrongful action
of the defendant. According to Haley v London Electricity Board (1965) it was held that mere
proof of foreseeability of damage, harm or loss is not sufficient, the plaintiff must also proof
actual damage or loss suffered. In Paris v Stepney Borough Council (1951) the court held the
damages evinced by the plaintiff must not be overly remote that it will be a waste of the courts
time to entertain the plaintiff’s issues.
The parents of the children in this case who act as the plaintiffs can proof damage from the
injuries that have been sustained by their children. Suffice to say, a proximity cause is evident
between the injury and damage suffered by the children and Captain Hawkeye’s and First Mate’s
negligent actions.
Occupiers Liability
Pursuant to section 4(1) Occupiers Liability Act 1995 the owner of a premises has duty to ensure
that visitors who visit the premises for recreational purposes are not exposed to any danger that is
likely to injure them. Section 4(2) Occupiers Liability Act 1995 provides that in determining the
owner of a premise has acted negligently and recklessly has to establish if the occupier has
reasonable grounds to believe that there as a risk of danger in the premises, whether any person
was likely to be harmed or injured while on the premises, whether the occupier had an obligation

to offer any protection to any person on nth premises incase of any danger, whether the occupier
had an obligation to avert any risk of danger.
According to Section 4(2) Occupiers Liability Act 1995 it can be argued that Captain Hawkeye
failed in his obligations to ensure that the visitors were not harmed. This stems from the fact that
he did no ensure that his employee First Mate ensures that all the children put on their life vests
on. In addition, Captain Hawkeye had reasonable grounds to believe that the ship was not in a
good state of repair. Captain Hawkeye also failed to ensure that the risk of harm to persons using
the premises was averted by surrendering the ship to he shipbuilders for maintenance and repair.
Defenses in Negligence
The defendant in a negligence action can argue as a defense that he did all that was reasonably
practicable to remove the risk. Further, he may also argue that he reduced the risk to as low as is
reasonably practicable. In Chester v Afshar (2004) the court held that a defendant would not be
liable for negligence if he warn the plaintiff of the impending risk but the plaintiff did not take
heed of the advise. The court further held that the defendant will not be liable or negligence if
found that although he failed to warn the plaintiff of the risk, the plaintiff would have proceeded
to act in the manner he did even if details about the risk were brought to his attention.
Captain Hawkeye cannot defend himself by arguing that he did all that was reasonably
practicable to remove the risk. This is because he was aware that the boat was in urgent of need
of repair but he filed to act.
First Mate can defend himself by contending that he did all that was reasonably practicable to
remove the risk. He can say that at first instance all the children had put on their vest but along
the way some naughty children removed their vests. He can also contend that he gave the
children sufficient warning.
Volentis Non fit Injuria
This literal meaning of this Latin expression is that a person who is willing to be harmed cannot
argue that he has been injured. It is a common law principle that may used as a defense by a

defendant in a negligence action to advance the view that the plaintiff placed himself in a
position where was likely harmed or injured. In addition, the defendant may also argue that the
plaintiff was aware of the degree of risk that was involved but he did not take account o his own
personal safety. Under English Law a defendant claim of negligence will successful escape full
liability if he defends himself by arguing that;
o The plaintiff had knowledge of the nature and magnitude of the risk in the circumstances
o The plaintiff, through his apparent ignorant actions about the impending possible risk,
waived his right to claim of any damages. In addition the defendant must prove that the
plaintiff consent to be harmed was given freely and voluntarily.
Captain Hawkeye cannot be successful in using this defense because knowingly failed to take the
boat for urgent repairs. Captain Hawkeye brought the injury to the children. However, First
Mate can argue that since some children opted not to put the life vests despite several warning of
the risks involved the children that drowned and those were injured freely and voluntarily
consented to be injured. This is attributed to the fact that First Mate made all the children aware
of all the risk involved.
Contributory Negligence
This defense is applied by the defendant to accept part liability for the injury or damage that has
been suffered by the plaintiff (O'Leary v. O'Connell, 1968). What is more is that the defendant’s
primary contention is that the plaintiff was partly to blame for the injury or damage that he has
suffered. In essence the defendant suggests that the plaintiff also contributed to the negligence.
For the defendant successfully prove contributory negligence on the part of the plaintiff, the
burden rests on him to prove all the elements of negligence as was done by plaintiff. In
contributory negligence the burden of proof shifts from the plaintiff to the defendant. In this
sense, the defendant must prove that the plaintiff owed himself a duty of care, he breached the
duty, the consequences of his actions caused the injury he has suffered (Sinnott v Quinnsworth,
1984). It is worth noting that this defense does not completely exonerate the defendant from
liability. If the plaintiff is also found to be negligent, liability will be shared between the plaintiff
and the defendant according to the amount of contribution to the risk.

This defense can be applied by Captain Hawkeye by admitting liability for allowing the children
to sail in a boat that is not seaworthy. However, he can also argue that the children owed
themselves a duty of care and it was prudent for them to put the life vests. He can add that, if the
children had put on their life vests the damage or injury would not have been severe. The
children owed themselves a duty of care of ensuring that they adhere to safety measures hen
travelling at sea.
Conclusion
It can be concluded that the parents of the children will not be able to successfully prove
elements of negligence against the shipbuilders. Although, they are likely to prove all the
elements of negligence against First Mate, he is likely to successfully fully escape liability by
using the ‘volentis non fit injuria’ defense. Captain Hawkeye and the children are likely to be
held contributory negligent.

References
Boehm, T. R. (2003). A Tangled Webb-Reexamining the Role of Duty in Indiana Negligence
Actions. Ind. L. Rev., 37, 1.
Bolam v Friern Hospital Management Committee (1957) 1 WLR 582
Bolton v Stone[1951] A.C. 850
Capital v Hampshire County Council (1997) QB 1004
Chester v Afshar [2004] 3 WLR 927
Donoghue v. Stevenson (1932) UKHL 100
Flynn v. O'Reilly (1999)
Grant v Australian Knitting Mills (1936 ) A.C. 562
Haley v London Electricity Board [1965] AC 778
Home Office v Dorset Yacht Club (1970) AC 1004
Keenan, Á. (2004). Essentials of Irish business law. Gill and Macmillan.
King v. Phillips, [1952] 2 All E.R. 459
Latimer v AEC Ltd [1953] AC 643
Livingstone V Raywards Coal Co (1880) 5 App Cas 25
Marcroft V Scruttons [1954] 1 Lloyd's Rep 395
Occupiers Liability Act 1995
O'Leary v. O'Connell [1968] I.R. 149
Paris v Stepney Borough Council [1951] AC 367
Sinnott v Quinnsworth [1984] ILRM 523