Letter of Advice on Tort of Negligence in Victoria

This letter of advice discusses the tort of negligence in Victoria and whether the school is liable for it. It explains the elements of negligence, rules, application, defences, damages, and recommendations. It also provides case laws, legislations, and websites for reference.

Running Head: CASE STUDY
CASE STUDY
Name Of the Student
Name Of the University
Author’s Note

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RMIT University
Graduate School of Business and Law
Juris Doctor (JD)
Date:
Subject: Letter of Advice
Dear Mr. Henry,
Thank you for calling us. Our client is our biggest priority and we would like to inform
you for our meeting on Saturday 21 September 2019. However, following is mu letter of advice
as we will request you to kindly go through for our discussion during the confirmed meeting.
Issue:
The issue in your case is whether the school is liable for the tort of negligence.
Rules:
The tort of negligence in Victoria is regulated by both common law as well as the Wrongs
Act 1958 (Vic) with amendment in 2003 as the Wrongs Act 2003 (Vic)1. Negligence is the
failure to exercise the duty of care by the defendant resulting in harm to the plaintiff. However, it
1 Legislation.Vic.Gov.Au (Webpage, 2019)
http://www.legislation.vic.gov.au/Domino/Web_Notes/LDMS/PubStatbook.nsf/
f932b66241ecf1b7ca256e92000e23be/edbb4dd2b6bbb604ca256e5b00214122/$FILE/03-102a.pdf

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is also established that such duty of care being exercised should be reasonable as any reasonable
man would do in such circumstances. The elements of negligence are2:
 Duty of care towards the plaintiff by the defendant3. It means that the defendant owes the
duty of care towards the plaintiff and that such duty of care should be reasonable in
nature as any other reasonable man would exercise in case of such foreseen harm4.
 Breach of such duty of care by acting or omission of an act amounting to the reasonable
care5. The breach of duty is considered when the duty of care is not exercised by the
defendant and such duty of care is the backdrop to prevent the plaintiff from the harm
that is foreseeable by the defendant. In other words, the harm should be foreseeable and
predictable by the plaintiff.
 Damages occurring from the breach of duty. Such damage should be directly arising
from the breach of duty and only those damages shall be applicable for compensation
which are directly implicated from the failure to exercise the duty of care. The damage in
this scenario may be an economic loss or the physical and psychological injury to the
person or the damage to the plaintiff’s property.
2 Owen, David G. (Summer 2007). "The Five Elements of Negligence". Hofstra Law Review. 35 (4): 1671
3 Grant v Australian Knitting Mills [1935] UKPC 62, [1936] AC 85
4 Quill, Eoin (2014). Torts In Ireland. Dublin 12: Gill & Macmillan. p. 19.
5 Traffic Authority of NSW v Dederer [2007] HCA 42, High Court (Australia).

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 Causation meaning the cause of action should directly arise from the negligent behaviour
of the defendant6. It means that the proximity of damages should be quantum to the
negligence of the defendant7.
Section 48 (1) of the Wrongs Act 19588 explains negligence. Section 48 (1) states that the
person is not negligent if he or she has exercised reasonable care against the foresseable harm.
However, the provision also specifically states that the person shall not be liable for the damages
if such risk is not serious in nature and the reasonable person in such circumstances would have
taken care in such situation. The gravity of the risk and the foreseeability of the harm induces the
duty of care and its reasonability to be exercised by the defendant.
Section 74 (B) of the Act states that there are limitation on the recovery of damages for the
consequences of the mental harm. However the damages shall be recoverable in following
stances:
 The defendant had the knowledge of the harm or the foreseen risk9 in the situation if
reasonable care was not taken10.
6 Chapman vs. Hearse [1961] HCA 46
7 Imbree v McNeilly [2008] HCA 40, High Court (Australia)
8 (Webpage, 2019) http://classic.austlii.edu.au/au/legis/vic/consol_act/wa1958111/s14b.html
9 Wyong Shire Council vs. Shirt [1980] 146 CLR 40
10 Geyer vs. Downs [1977] HCA 64

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 If the defendant knew that the plaintiff is not of the nature to assess the harm and yet the
reasonable care against such harm was not taken11.
Application:
Applying the tort of negligence to the school authorities, they owed the duty of care
towards your children but whether they exercised their duty by forbidding them such an act is not
explained and hence there shall be strong chances in losing the claim in that aspect.
Applying section 48 (1) of the Act it can be seen that the teachers manage a lot of
children and hence they may have though that the risk was insignificant. But they should have
known that children are delicate. Even small injury can lead to serious consequences.
Applying section 74 (B) of the Act it should have known to the teachers that bullying is
common among children and they should have taken reasonable care in supervision all actions of
the children.
However, in both the sections, it can be seen that the teachers or the school authorities
failed to exercise reasonable care towards the children and hence, it led to the accident.
According to Victoria State Government School Policy and Advisory Guide, it has been
state that the responsibility of the medical treatment and their transfer is to be borne by the
11 Oyston vs. St Patrick’s College [2013] NSWCA 135

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parents12. However, the same can be reimbursed once the claim is made and relevant arguments
have been made. The liability for compensation shall be determined by the court.
Defences:
Section 31 B of the Act explains that the law shall protect those who provides assistance
and advice or care to the other person in good faith with respect to accident, or injury to such
person.
The protection given to the good Samaritan extends to all the advisors, and the
assistances given at the time of the accident. Therefore, any emergency arising from the act of
the good Samaritan shall also not be subject to liability as the protection given to the good
Samaritans includes immunity from all civil proceedings for anything done during the care or
assistance at accident or emergency or by telephone communication yo another person at the
scene of accident or emergency.
Considering the situation of Lori, she cannot be held liable because she acted as the good
Samaritan to help the child during accident and emergency. She shall be protected under the
provision of law as she good Samaritan as she extended her help or assistance at the time of
accident or emergency.
Damages:
12 "Negligence Claims Process", Education.Vic.Gov.Au (Webpage, 2019)
https://www.education.vic.gov.au/school/principals/spag/governance/Pages/claimsprocess.aspx

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The damages arising out of such negligent behaviour is economic loss which is the cost
of the treatment, non-economic loss of mental harm to Antoine which could have been controlled
by immediate action of the teacher who was informed about the bullying and had promised to
look into it and yet no immediate action was taken.
Conclusion:
Therefore, it can be concluded that the claim for the accident may not be successful
because it is the children’s act of trying to climb the balustrade that amounted to the accident and
not the negligence of the school authorities. However, if you can establish that the teachers or the
authorities should have supervised the acts of every child knowing that they are not capable to
appreciate the dangers of the property, and the duty of care of the authorities do not extend only
to the teachers and students but also to supervise their activities knowing that they are children
and do not understand the dangers of their action, the school can be held liable for the negligence
of their supervision towards the children that resulted in their harm.
In the second scenario, it can be concluded that teachers failed to exercise their duty of
care towards the child against bullying and hence, the claim.
Recommendation:
To make a claim against civil wrong of negligence in Victoria, the person who has
suffered the harm should lodge an application in the Victorian Court with relevant jurisdiction.
However, before making such application, you should seek the assistance of a legal practitioner
for the possible outcome13. Nevertheless, this letter of mine has served the pre-requisite for
13 "What You Need To Know About Negligence In Victoria | Personal Injury Law", Gotocourt.Com.Au (Webpage,
2019) https://www.gotocourt.com.au/personal-injury/vic/negligence/

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making an application to the court. If you are satisfied and wish to continue the claim, you may
apply for the same in the Victorian Court with relevant jurisdiction.
We hope to hear from you soon and shall be discussing your case with our highest
priority. Our clients are our highest priorities and we wish to serve them with the best of our
knowledge and skills.
Thanks,
(Legal Counsel)

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Bibliography
Journals and Articles:
Owen, David G. (Summer 2007). "The Five Elements of Negligence". Hofstra Law
Review. 35 (4): 1671
Quill, Eoin (2014). Torts In Ireland. Dublin 12: Gill & Macmillan. p. 19.
Goudkamp, James, and Donal Nolan. Contributory Negligence in the Twenty-First Century.
Oxford University Press, 2019.
Case Laws:
Donoghue vs. Stevenson [1932] AC 532
Wyong Shire Council vs. Shirt [1980] 146 CLR 40
Geyer vs. Downs [1977] HCA 64
Oyston vs. St Patrick’s College [2013] NSWCA 135
Chapman vs. Hearse [1961] HCA 46
Grant v Australian Knitting Mills [1935] UKPC 62, [1936] AC 85
Traffic Authority of NSW v Dederer [2007] HCA 42, High Court (Australia).
Imbree v McNeilly [2008] HCA 40, High Court (Australia)
Websites:

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"What You Need To Know About Negligence In Victoria | Personal Injury
Law", Gotocourt.Com.Au (Webpage, 2019)
https://www.gotocourt.com.au/personal-injury/vic/negligence/
"Negligence Claims Process", Education.Vic.Gov.Au (Webpage, 2019)
https://www.education.vic.gov.au/school/principals/spag/governance/Pages/claimsprocess.aspx
Legislations:
Legislation.Vic.Gov.Au (Webpage, 2019)
http://www.legislation.vic.gov.au/Domino/Web_Notes/LDMS/PubStatbook.nsf/
f932b66241ecf1b7ca256e92000e23be/edbb4dd2b6bbb604ca256e5b00214122/$FILE/03-
102a.pdf
(Webpage, 2019) http://classic.austlii.edu.au/au/legis/vic/consol_act/wa1958111/s14b.html